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2006 DIGILAW 585 (GAU)

Veluzo Puro v. Sate of Nagaland

2006-06-20

ZELRE ANGAMI

body2006
JUDGMENT Z. Angami, J. 1. By this application under Article 226 of the Constitution the Petitioners have challenged the validity of addendum dated 20.12.04, by which 16 posts of Junior Divisional Accountant (Class-III Non-Gazetted) have been added as part of the posts advertised vide Advertisement No. 4/2004-2005 dated 7.11.04. The Petitioners are all together 13. By order dated 20.4.06 passed by this Court in CMC No. 83 (K) 06, 13 private parties had been impleaded as Respondents Nos. 7-19. By order dated 30.9.05, the Respondents were allowed to proceed with selection of candidates for the post of Junior Divisional Accountant (Class-III Non-Gazetted) pursuant to the addendum dated 20.12.04 with a rider that no orders of appointment shall be issued. 2. Stating that they were appointed on contract basis for a period of 3 (three) years or till regular selection through Nagaland Public Service Commission (NPSC) as advertised by them in local papers, whichever is earlier, the Petitioners had not applied in pursuance of advertisement No. 4/2004-05 dated 7.11.04. The above said appointments were made vide orders dated 22.12.04. Subsequently, by addendum dated 20.12.04, 16 posts of Junior Divisional Accountant against which posts the Petitioners were appointed, were added as to be recruited in terms of advertisement dated 7.11.04. In the said advertisement dated 7.11.04, it was stipulated that the last date for receipt of applications would be 10.12.04. In this background, the Joint Director of Treasuries and Accounts, Nagaland by letter dated 7.3.05, requested Financial Commissioner, Respondent No. 2 to move NPSC to extend the last date for submission of application forms as to enable all the contract appointees to appear examination for the posts of Junior Divisional Accountant. It is further the case of the Petitioner that on receipt of the above said letter dated 7.3.05, Under Secretary to the Govt. of Nagaland vide letter dated 8.3.05 had requested Secretary, NPSC to extend the last date for submission of applications in respect of Junior Divisional Accountant so as to enable the contract appointees to appear for examination for the said post. However, Secretary, NPSC by letter dated 15.3.05 expressed their inability to extend the last date of submission of applications for the post of Junior Divisional Accountant on the ground that the contract of appointments were made after the submission of applications. However, Secretary, NPSC by letter dated 15.3.05 expressed their inability to extend the last date of submission of applications for the post of Junior Divisional Accountant on the ground that the contract of appointments were made after the submission of applications. It is further the case that the Petitioners had submitted representation to the Director, Treasuries and Accounts on 4.4.05, requesting him to take steps for withdrawal of 16 posts of Junior Divisional Accountant from NPSC examination on the ground that they were not allowed to submit their applications by NPSC, Respondent No. 5. It is also stated that the consequent upon advertisement dated 7.11.04, preliminary examination was held on 26.3.05 and the main examination was held in the month of August/September 2005 and the result is awaited. In this background, the present application came to be filed challenging the validity of addendum dated 20.12.04. 3. An affidavit on behalf of Respondents 1 to 4 has been filed and it is stated in the said affidavit that the post of Junior Divisional Accountant (JDA) comes within the purview of the NPSC for recruitment and that the Department had requested the NPSC to extend the last date of submission of applications for the post of JDA as to enable the contract appointees to appear in examination and that the NPSC did not agree. An affidavit on behalf of Respondents Nos. 5 and 6 i.e. Secretary, NPSC and NPSC was also filed. In the said affidavit it has been stated inter alia that the Petitioners were appointed on contract basis to the post of JDA and they did not apply for the first category of posts advertised and that they were appointed on contract basis after the last date of submission of applications and that in pursuance of the advertisement, preliminary examination was held on 26.3.05 and that the main written examination was held on 10.8.05 and that viva voce for those who had qualified in the written examination was held from 7.11.05 to 30.11.05 and that the entire selection process had been completed. Reference has also been made to interim order dated 30.9.05 passed by this Court by which the Respondents were allowed to proceed with the selection process of JDA. It is also stated that the Petitioners have approached this Court after the process of holding preliminary examination and main examination. Reference has also been made to interim order dated 30.9.05 passed by this Court by which the Respondents were allowed to proceed with the selection process of JDA. It is also stated that the Petitioners have approached this Court after the process of holding preliminary examination and main examination. The private Respondents have also contested the case by filing affidavit. In the said affidavit traversing the various statements made in the writ petition, it is stated, inter alia, that the appointment of the Petitioners was made from the back door bypassing the Government's standing order dated 26.2.01. The Petitioners have not come with clean hands or genuine grievance as no enforceable or fundamental rights accrued to them have been infringed. It is also stated that the Petitioners themselves have made no representation to the NPSC. It is also stated that the results have already been declared vide notification dated 30.11.05 but no appointment order has been issued in view of the interim order dated 30.9.05 passed by this Court. 4. On having gone through the records and also upon the submissions made by the counsels of respective parties, it is not disputed that 16 posts of JDA came to be added vide addendum dated 20.12.04 to the post for recruitment in terms of advertisement dated 7.11.04. It is also not disputed that the last date for submission of applications stipulated in advertisement dated 7.11.04 is 10.12.04. 5. The counsel for the Petitioners has submitted that the posts of JDA having been added by addendum dated 20.12.04, the last date for submission of applications stipulated in the advertisement dated 7.11.04 should not have been taken as a last date for the post of JDA and the last date for submission of applications should have been extended. On the request made by the State Government, the NPSC should have extended the last date for submission of applications. He contends that the refusal to extend the last date of submission of applications in respect of the posts covered by addendum dated 20.12.04 is arbitrary and unjust. It is the contention that the Petitioners have represented for withdrawal of the posts of JDA from 2005 NPSC examination on the ground that the Petitioners were not allowed to submit their applications. Mr. A. Zhimomi, learned Counsel for the Respondents Nos. 5 and 6 submits that the entire process of selection has been completed. It is the contention that the Petitioners have represented for withdrawal of the posts of JDA from 2005 NPSC examination on the ground that the Petitioners were not allowed to submit their applications. Mr. A. Zhimomi, learned Counsel for the Respondents Nos. 5 and 6 submits that the entire process of selection has been completed. He also points out that the preliminary and main examinations were completed before the Petitioners could approached this Court. He further submits that situation may warrant otherwise for interference of this Court, if the Petitioners had approached this Court in time before commencement of the selection process. The Petitioners were aware of the commencement of the selection process and they have chosen to approach this Court at the belated stage and as such it does not warrant for interference of this Court at this stage. Mr. R. Iralu, learned Counsel appearing on behalf of the Respondents Nos. 7 to 19 adopts the submissions of Mr. A. Zhimomi and further submits that the private Respondents have gone through the selection process and they have already acquired legal right to be considered for appointment on the basis of recommendation of the NPSC. 6. While appreciating the grievance of the Petitioners as regard the action of Respondents Nos. 5 and 6 in not extending the last date for submission of the applications with respect to the posts of JDA when such posts are admittedly added by addendum dated 20.12.04 i.e. after the last date stipulated for submission of applications, it is also noticed that the Petitioners were in fact aware of the commencement of the selection process. Petitioners were also aware of the refusal to extend the date for submission of applications which was conveyed by Respondent No. 5 vide his letter dated 15.3.05. The representation dated 4.4.05 stated to have been submitted by the Petitioners and referred to as Annexure-J to the writ petition is also found to be made after the commencement of the selection process. Whatever it may be the merit of the grievance of the Petitioners at the initial stage, notice also must be taken that the Petitioners have approached this Court only by 30.9.05 i.e. after completion of the process of the conduct of preliminary and main examinations. Whatever it may be the merit of the grievance of the Petitioners at the initial stage, notice also must be taken that the Petitioners have approached this Court only by 30.9.05 i.e. after completion of the process of the conduct of preliminary and main examinations. As a consequence of the delay in approaching this Court by the Petitioners, the selection process is admittedly completed and as a matter of legal proposition, it must also be acknowledged that the persons who have qualified in the selection process have undoubtedly acquired atleast equitable rights to be considered for appointment on the basis of the selection process already completed before the Petitioners approached this Court. 7. In a case reported in (1977) 3 SCC 260 (N. S. Mehta and Ors. v. Union of India and Ors. the Apex Court referring to the principles explained in the case of Joginder Nath v. Union of India (1975) 3 SCC 459 and Amrit Lal Berry v. Collector of Central Excise, New Delhi (1975) 4 SCC 714 and taking note of the explanation as to how delay in invoking the jurisdiction of the Court, which may create equitable rights of others, may give rational grounds for discrimination so that it would cease to be a case of any violation of Articles 14 and 16 at all, held that the principles laid down in the said cases is also applied to the case. Reference may also be made to a decision reported in (1986) 4 SCC 566 (State of M.P. and Ors.) v. Nandlal Jaiswal and Ors.) in which the Apex Court observed that the High Court does not ordinarily permit a belated resort to extra-ordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its trial a new injustice and that the rights of 3rd parties may intervene and that if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on 3rd parties. On having considered the fact that the Petitioners have approached this Court after the completion of the selection process and have also not challenged the validity of the selection results and that taking the view that the private Respondents who have gone through the process of selection have acquired equitable rights to be considered and also taking instructions from the decisions of the Apex Court referred to above, I am inclined to hold that it is not a fit case for this Court to interfere with the impugned addendum dated 20.12.04 at this stage. In view of the above observations, this Court is of the considered view that the present writ petition is devoid of merit and accordingly, the petition is dismissed. The interim order dated 30.9.05 stands vacated. There shall be no order as to costs. Petition dismissed