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2009 DIGILAW 323 (GAU)

P. Chupathung Jami v. State of Nagaland

2009-05-15

I.A.ANSARI, MUTUM B.K.SINGH

body2009
JUDGMENT Mutum B.K. Singh, J. 1. This appeal has been filed challenging the common Judgment and order, dated 29.1.2002, passed by the learned single Judge in WP(C) No. 170(K) 2000 and WP(C) No. 171(K) 2000. 2. Heard Mr. R. Iralu, Learned Counsel appearing on behalf of the appellants, Mr. N.M. Jamir, learned Addl. Government Advocate for the State respondents Nos. 1 to 6 and Mr. Taka Masa, Learned Counsel appearing for the respondents Nos. 7 to 26. 3. Relevant and necessary facts giving rise to this appeal are that the appellants are under-graduate primary teachers in Wokha District, Nagaland, appointed on ad hoc basis. For filling up the under-graduate posts in Wokha District, Nagaland, a select list of 20 candidates, after taking written test as well as oral interview, was declared on 5.10.2000 and that none of the appellants was included in the select list. Thereafter, the appellants as the petitioners, instituted WP(C) No. 171(K) 2000, for quashing the interview held on 4.10.2000, and the select list declared on 5.10.2000, as illegal, unsustainable in law on the grounds that besides other serious irregularities committed by the selection Board, the selection process was unfair and the select list dated 5.10.2000 was smacked with nepotism and favouritism, etc. The same select list was also challenged in WP(C) No. 170(K) 2000 by other unsuccessful candidates. The learned single Judge heard both the Writ petitions jointly and passed the impugned common judgment and order dated 29.10.2002, by holding that there was no infirmity in the selection of the candidates whose names appear in the select list dated 5.10.2000, save and except in the case of the candidates at serial Nos. 2 and 14 of the select list. In so far as the aforesaid two candidates are concerned, the learned single judge directed the Director of School Education, Government of Nagaland to conduct an enquiry to ascertain as to whether the aforesaid two candidates are related to the District Education Officer and District Employment Officer as alleged by the writ petitioners. It was also observed that if the findings in the enquiry is that the aforesaid officers or any one of them participated in the selection process in which the aforesaid two candidates at serial Nos. 2 and 14, respectively were selected, their selection shall be taken as null and void and further consequential action should be taken up on that basis. 4. That Mr. 2 and 14, respectively were selected, their selection shall be taken as null and void and further consequential action should be taken up on that basis. 4. That Mr. R. Iralu, Learned Counsel appearing for the appellants strenuously contended that the entire selection process is vitiated in view of the admitted fact that the candidates at serial Nos. 2 and 14 of the select list who are respondent Nos. 8 and 20 in this appeal, are the relatives of the District Education Officer and District Employment Officer who had participated at the time of oral interview of the said two candidates as Member Secretary and Member of the Selection Board. It was also contended that the Selection Board was not constituted in terms of the Government's Notification dated 24.3.2000. A separate written test examination was conducted on 3.10.2000 in respect of one candidate whose name appears at serial No. 20 of the select list and as such the entire selection process is liable to be quashed, the appellant's Learned Counsel urged. 5. Countering to the above submission, the Learned Counsel appearing for the respondents submitted that there was no infirmity in the constitution of the selection Board as four out of five members were present at the time of selection process. The Learned Counsel, however, admitted that a separate written test examination in respect of one of the selected candidates namely, Mr. R. Sensuthung Kithan was held on 3.10.2000. According to the Learned Counsel, the said candidate had appeared in the written test examination held on 29.9.2000 but he was supplied with, through mistake, a wrong question paper which was subsequently detected. Under the aforesaid circumstances, a separate written test examination in respect of the said candidate was conducted on 3.10.2000. The Learned Counsel further contended that since there was no material on record to prove that the said two members who were claimed to be the relatives of the two selected candidates were present at the time of selection, the learned single judge rightly directed to conduct an enquiry on that particular point with certain direction, and, thus, the impugned judgment is not called for any interference. 6. For better appreciation of the argument put forward by the respective Learned Counsel, we have carefully scrutinized the averments made by the appellants as well as the respondents in WP(C) No. 171(K) 2000. 6. For better appreciation of the argument put forward by the respective Learned Counsel, we have carefully scrutinized the averments made by the appellants as well as the respondents in WP(C) No. 171(K) 2000. In paragraph 17 of the writ petition, it has been specifically averred that Smt. Avungi Lotha whose name appears at serial No. 2 of the select/merit list is the daughter of Shri N. Lotha, District Education Officer, who was Member Secretary of the Board. Secondly, Smt. Vungthunglo Ezung, whose name appears at serial No. 14 of the select list is the sister-in-law of Shri R. Oran Ngullie, District Employment Officer, who was a member of the Selection Board. The names of the above two members are also reflected along with the names of two other members in the select list dated 5.10.2000 (Annexure-A13 to the writ petition) indicating that they were the members of the Selection Board. The respondents had not denied the above specific averments and the document marked as Annexure-A13 to the writ petition in their Affidavit-in-Opposition. The stand taken by the State respondents in their Affidavit-in-Opposition is that there is no established law that sons and daughters of a father or mother who happen to be a member of any selection or interview board are debarred from appearing interview before such board. It appears that the State respondents admitted the fact that the candidates at serial Nos. 2 and 14 of the select list are the daughter and sister-in-law of the District Education Officer and District Employment Officer, respectively, who had participated as Member. Secretary and the Member of the Selection Board held on 4.10.2000. The learned single judge, in paragraph 6 of the impugned Judgment also held as follows: "Four out of five members were present. Therefore, considering the fact that more than majority of the members of the committee were present, this Court does not find any infirmity with the selection held on the ground that one of the member of the Selection Board was not present." The Learned Counsel appearing for the respondents had also submitted that four out of the five members were present at the time of selection process. 7. 7. From the above facts and submissions made by the Learned Counsel appearing for the respondents, it is manifestly clear that both the District Education Officer and the District Employment Officer had participated as Member Secretary and Member of the Selection Board at the time of interview of the said two selected candidates, whose names appear at serial Nos. 2 and 14 of the select list. Situated thus, the question before this Court is whether the entire selection process is vitiated on the ground of bias, nepotism or favouritism as the two said selected candidates are found to be the relatives of the said two Member Secretary and Member of the Selection Board. 8. This Court in Abutaba (Doctor) and Ors. v. State of A.P. and Ors. 2002 (3) GLT 313, held that if the selected candidates are found to be closely related to the members of the commission, the likely hood of bias adversely affecting the process of selection cannot be boldly and confidently ruled out. If reasonable possibility of bias or nepotism exist, such as selection procedure cannot, by any means, be allowed to stand good on record. In Leena B. Dam and Anr. v. State of Assam and Ors. 2005 (4) GLT 645, this Court emphasized that the doctrine of bias is a unique judicial innovation consistent with the principle that the justice delivery system must be routed in the confidence of the people and justice must not only be done but also appear to have been done. Prove of actual bias is difficult to come by. Hence, the court have consistently held that even the possibility of bias would suffice to nullify the order passed and action taken. 9. Coming to the facts of the case at hand, the possibility of bias and nepotism in the selection process held on 4.10.2000 in favour of the candidate at serial Nos. 2 and 14 of the select list who are the respondent Nos. 8 and 20 as against the other candidates who had appeared in the said selection test cannot be completely ruled out as both the said selected candidates are found to be related closely to the Member Secretary and the Member of the said Selection Board. 2 and 14 of the select list who are the respondent Nos. 8 and 20 as against the other candidates who had appeared in the said selection test cannot be completely ruled out as both the said selected candidates are found to be related closely to the Member Secretary and the Member of the said Selection Board. The learned single Judge, however, took the view that in the absence of records which were called for but not produced before the court, it was difficult to ascertain as to whether at the time of interview of the selected candidates at serial Nos. 2 and 14, the persons who were claimed to be their relatives were present as a members of the board. The learned single judge, however, expressed the view that if the even likelihood of bias but in so far as the other selected candidates are concerned, there was no discernible basis either in the writ petition or in the oral argument advanced to find any fault in such selection. Accordingly, the learned single Judge directed for holding an enquiry on the points stated above. 10. That, in view of the above observation that the said two selected candidates are closely related to the Member Secretary and the Member of the Selection Board of the selection held on 4.10.2000 and they were also present at the time of their interview, we are of the firm view that in the facts and circumstances of the present case, no further enquiry on that point is necessary as directed by the learned single judge. In the above backdrops and following the earlier decisions of this Court quoted above, there is no alternative except to invalidate the selection test held on 4.10.2000 and quash the select list declared on 5.10.2000." 11. That, in so far as the point raised by the Learned Counsel appearing for the respondent Nos. 6 to 26 that the appellants have no locus standi to challenge the selection of the candidate whose name appears at serial No. 20 of the select list as he was recommended for drawing teacher, a pointed query was made as to how the select list of drawing teacher was included in the select list of the under-graduate teacher declared on 5.10.2000, the Learned Counsel could not give any satisfactory explanation. Besides, it has been brought to the notice of this Court and also admitted by the respondents that a separate test examination was conducted on 3.10.2000 exclusively for the said candidate on the plea that the said candidate was supplied with a wrong question paper on 29.10.2000. It shows that the said candidate was not tested by the same set or standard of question by which the merit of the other candidates were tested. Such a procedure is unexpected and also unknown in the matter of selection process for appointment. Such process cannot stand in the way of judicial scrutiny. 12. That the Learned Counsel appearing for the parties have submitted at the bar that pursuant to the select list dated 5.10.2000, none of the selected candidate have been given appointment till date. Taking into consideration of the facts and circumstances of the case and for the foregoing reasons and discussions, the entire selection process for the under-graduate teachers held on 4.10.2000 and the result declared or 5.10.2000 are hereby quashed and the impugned judgment and order is accordingly set aside. And that, the respondents are directed to conduct afresh selection process in accordance with law at the earliest and the entire exercise shall be completed within a period of 6 (six) months from the date of passing this judgment. The appeal is allowed. No order as to costs. Appeal allowed.