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2011 DIGILAW 922 (GAU)

Zanbeni Lotha v. State of Nagaland

2011-11-22

P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. Heard Mr. Imti Longchar, learned counsel for the petitioner. Also heard Mrs. Y. Longkumar, learned Government Advocate, Nagaland and Mr. Z.N.Ngullie, learned counsel appearing for respondent No.5. None appears for respondents No. 6 to 12. 2. The brief facts of the case as narrated by the petitioner is that she was initially appointed on temporary basis as Language Typist (Lotha), Text Book Publication Section in the Directorate of School Education, Nagaland, Kohima. A post of Language Assistant (Lotha) fell vacant after completion of her 12 years in service due to promotion of a Language Assistant to the post of Language Officer (Lotha). The petitioner is a Matriculate and she applied for promotion to the post of Language Assistant but the respondent-authorities did not consider her case and in her place private respondent no.5 was appointed to the said post through backdoor. Being aggrieved, the petitioner filed W.P(C)No.81(K) of 2001. The said Writ Petition was disposed of by judgment and order dated 23.1.2002 directing the concerned authorities to issue advertisement for the post of Language Assistant (Lotha) and complete the entire process of recruitment within a period of three months from the date of receipt of the certified copy of the order. It was provided in the said order that the petitioner as well as the respondents shall apply for the post and their cases should be considered by the concerned authorities subject to their qualification and suitability at the time of applying for the post. In compliance to the aforesaid order of this court the department advertised the said post and in response to the same both the petitioner and the private respondent No.5 submitted their application. The private respondent No.5 was appointed to the said post of Language Assistant (Lotha). The petitioner again filed a Writ Petition being W.P.(C) No.223(K)/03 and it was disposed of by this court vide judgment and order dated 17.5.2005 quashing the appointment order of the private respondent no.5 holding that she was not qualified for the said post. Thus, the said post was again advertised on 16.4.2006. The petitioner again filed a Writ Petition being W.P.(C) No.223(K)/03 and it was disposed of by this court vide judgment and order dated 17.5.2005 quashing the appointment order of the private respondent no.5 holding that she was not qualified for the said post. Thus, the said post was again advertised on 16.4.2006. It is alleged that the Additional Director of School Education with sole intention to accommodate the private respondent No.5 issued an addendum dated 29.4.2006 providing that for the post of Language Assistant (Lotha) a certificate of proficiency in Lotha awarded by the Kyong Academy & Lotha Literature Committee, Wokha will also be treated as "equivalent to that of passed in HSLC with Lotha Language". The petitioner and the private respondent No.5 participated in the said interview. As stated by the petitioner, she was placed at sl No.17 in the result of the written test. The oral interview was conducted but right after oral interview of the petitioner, the Chairman of the Selection Board fell ill due to which the viva voce discontinued but strangely, although the respondent No.5 could not be interviewed, she was appointed as Language Assistant by the respondent No.4 vide impugned order dated 31.8.06. The petitioner has filed this 3rd Writ Petition for quashing the appointment of the respondent No.5 and for consideration of her promotion to the post of Language Assistant (Lotha) as per Government Notification No. AR-8/26/81 dated 24.9.1981. 3. Mr. Longchar, learned counsel for the petitioner submits that the post of Language Assistant (Lotha) is a promotion post to be filled up by the departmental candidates working as Language Typist (Lotha) and the said post should be filled up by promotion as per aforesaid Govt. Notification and as such the respondent-authorities had committed illegality by taking resort to direct recruitment. Secondly, he submits hat the private respondent No.5 was over aged at the time of making application for the said post and she is not entitled to relaxation in upper age limit as she is not in the Govt. Service. Thirdly, it is submitted that the selection committee had to postpone the oral interview due to sudden illness of the Chairman who was admitted in Hospital. The oral interview reached sl No.17, i.e. the petitioner and thereafter since no oral interview continued, the other candidates, including the respondent no.5 could be interviewed. Service. Thirdly, it is submitted that the selection committee had to postpone the oral interview due to sudden illness of the Chairman who was admitted in Hospital. The oral interview reached sl No.17, i.e. the petitioner and thereafter since no oral interview continued, the other candidates, including the respondent no.5 could be interviewed. The oral interview was not completed but the interview board prepared a list of 32 selected candidates recommending the name of respondent no.5 for appointment to the post of Language Assistant (Lotha). It has been submitted that the interview was not complete and it was a sham one inasmuch as the authorities concerned had a pre-plan to appoint the respondent No.5 by any means and as such the impugned appointment of respondent No.5 is liable to be quashed and set aside through judicial review. 4. Referring to the case of Md. Sohrab Khan vs. Aligarh Muslim University and ors, reported in (2009) 4 SCC 555 , learned counsel for the petitioner persuaded that the recruitment must be conducted according to the prescribed educational qualification. In the present case, the oral interview remained incomplete due to illness of the Chairman of the Selection Board and by publishing a selection list on the basis of incomplete recruitment process, a serious irregularity has been committed vitiating the entire selection. The selection list so prepared cannot be treated as valid or acted upon. On relaxation of essential qualification he relied on Secretary, A.P. Public Service Commission vs. B. Swapna and ors, reported in (2005) 4 SCC 154 , wherein it has been held that the selection committee has no power to relax the essential qualification. 5. The State Respondents as well as Private Respondent No.5 who is holding the post in question have filed their respective counter affidavit. 6. Mr. Z.N.Ngullie, learned counsel for the respondent No.5, makes elaborate submissions on the factual aspects of the matter and placed several decisions of the Apex Court namely Madanlal & ors vs. State of J & K & ors, reported in (1995) 3 SCC 486 ; Dhananjay Malik & ors vs. State of Uttaranchal & ors, reported in (2008) 4 SCC 171 and Suneeta Aggarwal vs. State of Haryana & ors, reported in (2000) 2 SCC 615 . 7. 7. Before adverting to legal issues involved in this case it is felt necessary to ascertain the veracity of allegations of the petitioner regarding oral interview which allegedly came to a halt after reaching sl No.17 due to sudden illness of the Chairman of the Selection Board. In paragraph 10 of the counter affidavit of the State-Respondents it has been stated that the interview could not be completed on 12.7.2006 but it continued on 26.7.2006. It has been admitted that the Chairman of the Selection Board authorized the Additional Director, School Education, respondent no.4 to act on his behalf in order to complete the interview process. Accordingly, he conducted the oral interview on behalf of the Chairman along with other members of the Board and after completion of the oral interview selection list was prepared. I have gone through the office file No.ED/EST/B-4/99-2000/Pt-1 maintained by department, in regard to recruitment to the post of Language Assistant (Lotha)which contains an original copy of advertisement, nomination of Chairman and Members of the Selection Board, circular dated 24.7.2006 issued by the Addl. Director (HOD) informing all the Board Members concerned regarding Board's meeting to be held on 26.7.2006 at 1 pm and the minutes of the meeting signed by the Board's Members on 26.7.2006 and the appointment letter issued by the Addl. Director (Respondent No.4) in favour of the private respondent No.5. As per minutes of the Selection Board's meeting there is no mention about the meeting held on 26.7.2006 but the minutes was signed on 26.7.2006. There is no other material on record that no meeting was held on 26.7.2006 and it can be accepted that the meeting was held on the said date to complete the oral interview which remained inconclusive on 12.7.06. The petitioner's allegation that the oral interview was not completed, is not acceptable. 8. Now, I come to the advertisement issued by the respondent No.4 for recruitment to the post of Language Assistant (Lotha). Clause (b) and (c) of the said advertisement are relevant for the purpose of deciding this case. Clause (b) says that the candidate must be an indigenous Lotha tribe of Nagaland within the age limit of 18-30 years as on 11.5.2006. The upper age limit is relaxable by five years in respect of Govt. servants but who have put in continuous service of not less than 3 years in the State of Nagaland. Clause (b) says that the candidate must be an indigenous Lotha tribe of Nagaland within the age limit of 18-30 years as on 11.5.2006. The upper age limit is relaxable by five years in respect of Govt. servants but who have put in continuous service of not less than 3 years in the State of Nagaland. The petitioner alleged that the respondent No.5 became over aged by the time the advertisement was issued. The private respondent No.5 admitted this allegation but at the same time in her counter affidavit stated that she is entitled to privilege of relaxation of age as she had put in continuous service of three years prior to interview held on 12.7.2006. It has been categorically stated in paragraph 13 of her counter affidavit that she was appointed as Language Assistant (Lotha) under the establishment of Directorate of School Education on adhoc basis on 31.1.2001 and thereafter she was selected and appointed on regular basis as Language Assistant (Lotha) vide order dated 3.2.2003 issued by the respondent-Director. The photocopies of the aforesaid Ad-hoc Regular appointment as Language Assistant (Lotha) has been furnished and annexed as Annexures-VI and VII to the counter. This claim of the respondent no.5 has not been controverted by the petitioner and on the face of the aforesaid material and in view of the Govt. Circular on which the petitioner relied regarding upper age limit and relaxation thereof, cannot be rejected rather it can be safely held that the Respondent No.5 has been able to prove to the satisfaction of the court that she was eligible to apply for the said post on relaxation of the upper age limit. 9. Clause (c) of the advertisement relates to educational qualification which provides that a candidate should be a degree holder in any discipline from a recognized University and he/she must have passed HSLC Examination from a recognized Institution with Lotha Language as a subject in the said examination. The 2nd part of the said clause has been replaced by the impugned Addendum dated 29.4.06. The qualification i.e. degree in any discipline has not been relaxed by the Addendum. The petitioner admittedly passed HSLC Examination only and she does not hold degree in any discipline. The 2nd part of the said clause has been replaced by the impugned Addendum dated 29.4.06. The qualification i.e. degree in any discipline has not been relaxed by the Addendum. The petitioner admittedly passed HSLC Examination only and she does not hold degree in any discipline. Therefore, the respondent No.5 strongly protested that the petitioner is not at all qualified for the post although she passed HSLC Examination with Lotha Language as a subject in the HSLC Examination. This was asserted by the respondent No.5 in her counter affidavit which has not been denied or controverted by the petitioner. It has become an admitted position that the petitioner is under qualified inasmuch as she is not a degree holder and she is not eligible for the said post. No other view can be taken by the court unless it is shown that the requirement of degree in any discipline has been relaxed by the Government. No such material is found in the record or could be shown by the petitioner in support of her contention that she is qualified to hold the post of Language Assistant (Lotha). For this reason the court must hold that the petitioner is not eligible for the post in question. As regards the second part of the clause (c) of the advertisement in regard to which Addendum was issued which says that a certificate of proficiency in Lotha awarded by the Kyong Academy & Lotha Literature Committee, Wokha, would also be treated as equivalent to that of a person passed in HSLC Examination with Lotha Language, it must be noted that it was issued before the last date for submission of application i.e. 11.5.2006. No wrong can be attributed to issuance of such Addendum and the court has no business to interfere with the same inasmuch as it is the prerogative of the executive to decide the terms and conditions for selection and appointment of candidates to a post as per the nature of work. The court is to presume and accept that the executive or for that matter, the Govt. knows better what qualification should be required for appointment to the post of Language Assistant in local language. Moreover, the grievance of the petitioner is mainly against the Addendum in question and not against the proficiency of respondent No.5 in Lotha Language. The court is to presume and accept that the executive or for that matter, the Govt. knows better what qualification should be required for appointment to the post of Language Assistant in local language. Moreover, the grievance of the petitioner is mainly against the Addendum in question and not against the proficiency of respondent No.5 in Lotha Language. The court is not bound to declare that the proficiency certificate issued by the Kyong Academy & Lotha Literature Committee, Wokha, is not acceptable nor is it bound to declare that the said Lotha Literature Committee has no authority to issue the proficiency certificate in Lotha Language. What is clearly observed is that the petitioner has challenged the Addenudm after the respondent No.5 was appointed on the basis of selection made as per terms and conditions laid down in the advertisement and the Addendum when her case was not recommended by the Selection Board. The petitioner's participation in the interview Board implies that she agreed to or accepted the terms and conditions laid down in the advertisement as well as the Addendum. There is no averment made by the petitioner that she, before making application for the post or before appearing in the interview, made any complaint or representation before the authorities concerned raising grievance against any conditions of the advertisement or issuance of the Addendum. The petitioner has shown from her conduct that she participated/appeared in the interview in a calculated manner. When she could not succeed she turned round and contended that the authorities committed serious mistake and illegality in issuing the Addendum to the advertisement just to accommodate the respondent No.5. If she had serious objection to the said Addendum she should have taken up the matter with utmost seriousness immediately after issuance of the said Addendum. The conduct of the petitioner amply proves that the challenge to the Addenudm is an afterthought which developed in her mind after completion of the entire selection process. The learned counsel for the respondent No.5 has rightly cited the cases of Madanlal (supra) wherein it is held that if a candidate takes a calculated chance and appears in the interview then, only because of the result of the interview is not palatable to him, he cannot turn round subsequently contending that the process of interview was unfair or the selection committee was not properly constituted. The case of Dhananjay Mali (supra) is also a right citation. It was held therein that challenge after participation in the interview by unsuccessful candidates is hit by principle of estoppel. It was also similarly held by the Apex Court in Suneeta Aggarwal's case (supra). 10. The case of B. Swapna (supra) as cited by the learned counsel for the petitioner, in my considered view is not applicable to the present case because it was a case where the Selection Committee happened to relax essential qualification and the entire process of selection was declared to be vitiated. In the present case no essential qualification has been relaxed by the Selection Board. What was relaxed in the Addendum in question is only in respect of authority who can issue the proficiency certificate in Lotha Language. The said Addendum was issued by the department through Respondent No.4 officer and not by the Selection Board. Similarly the law laid down in Sohrab Khan (supra) as cited by the learned counsel for the petitioner is also not applicable to the present case for the reason that the Selection Committee conducted the interview as per terms and conditions laid down in the advertisement and the Addendum without any change to the selection criteria in the midway. 11. For the aforesaid discussions, I find no valid and legal ground for interference with the impugned action of the respondent authorities in the matter of recruitment to the post in question by exercising the extra ordinary writ jurisdiction. This petition is thus, not accepted. It stands dismissed. The parties are directed to bear their own costs.