Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 952 (GAU)

Lalmuanawma v. State of Mizoram

2011-12-02

SWAPAN CHANDRA DAS

body2011
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. By this writ petition, the petitioner prayed for quashing the recommendation and appointment of respondent No. 4(for short, R.4) to the post of Assistant Director(Toxicology) in the State Forensic Science Laboratory(for short, SFSL) under the Home Department of the Government of Mizoram. Heard learned counsel, Mr. L.H. Lianhrima, appearing for the petitioner and learned Addl. A.G., Mr. Aldrin Lallawmzuala for respondent Nos. 1 and 2, learned senior counsel, Mr. M. Zothankhuma for respondent No. 3 as well as Mr. R. Laltanpuia for respondent No. 4. 2. It is inter alia stated by the petitioner that he has done B. Sc.(Zoology Honors) degree from Mizoram University in the year 2003, securing first class and immediately thereafter was recruited as Sub-Inspector of Police in the month of December, 2003 and was posted as Forensic Science Assistant vide order dated 22.05.2006. In fact, he was working in the Chemistry Division as Forensic Science Assistant since December, 2003 and was continuously working by that time and handled over 850 toxicological, narcotic drugs, explosives, liquor, etc. cases consisting of more than 1,300 exhibits, which were referred for analysis from various law enforcing agencies. He also completed Post Graduate Diploma in Forensic Chemistry & Toxicology on 25.11.2004 from National Institute of Criminology and Forensic Science, New Delhi. The State Government, in the public interest, created two post of Assistant Director, namely, (1) Assistant Director (Serology), and (2) Assistant Director (Toxicology) under the Home Department for the State Forensic Science Laboratory under the Police Department, both Group-A posts. The recruitment to the posts ought to be made as per the Mizoram Police Department (Group-A posts) Recruitment Rules, 2001. For filling up of those posts, the State Government requested respondent No. 3, Mizoram Public Service Commission(for short, MPSC) for recommending eligible candidates, and accordingly, Advertisement No. 3 of 2010-11(Annexure-X) was made by MPSC, and pursuant to such advertisement, the petitioner applied for the post of Assistant Director(Toxicology) and respondent No. 4 also applied for the post. MPSC vide letter dated 28.02.2011(Annexure-XII) recommended the name of R.4 for the post of Assistant Director(Toxicology), and accordingly, as per recommendation, the State Government appointed R.4 as the Assistant Director(Toxicology) vide Notification dated 11.05.2011(Annexure-XIII). MPSC vide letter dated 28.02.2011(Annexure-XII) recommended the name of R.4 for the post of Assistant Director(Toxicology), and accordingly, as per recommendation, the State Government appointed R.4 as the Assistant Director(Toxicology) vide Notification dated 11.05.2011(Annexure-XIII). The grievance of the petitioner is that R.4 had no experience of working in Toxicology Branch of the Forensic Science Laboratory, and therefore, was not eligible to be selected for the post and that MPSC, without considering the working experience, wrongly selected R.4 and that there was nepotism and favoritism in the selection process otherwise, R.4 would not have been selected. It is the further case of the petitioner that he has the working experience in Toxicology from 2003 itself, which has been certified by the SFSL, and therefore, he submitted represented before the State Government but his representation was not considered, and therefore, he approached the Court. 3. The State respondents(respondent Nos. 1 and 2) filed affidavit-in-opposition, inter alia, stating that to contain growth and expansion of State Forensic Science Laboratory, the posts of Assistant Director(Serology) and Assistant Director(Toxicology) were created by the Home Department and the Recruitment Rules of 2001 was also amended for recruitment to the posts and both the candidates were having requisite qualifications and as per recommendation made by the MPSC the State Government appointed R.4 to the post of Assistant Director(Toxicology). In the Recruitment Rules it has been prescribed that a candidate must have the working experience in a recognized Forensic Science Laboratory and there was nothing specific that the experience must be in Toxicology Branch. However, the views of Law & Judicial Department were obtained and Home Department also would consider the matter in view of the point raised regarding experience. However, the State respondents left the matter to the Court for a reasonable decision. 4. Respondent No. 3, MPSC also submitted affidavit-in-opposition, inter alia, stating that both the petitioner and R.4 were qualified to be appointed to the post and regarding experience the rule has prescribed about working experience in a recognized Forensic Science Laboratory and nothing is specified that the experience must be in the particular discipline of Toxicology, and therefore, selection of R.4 cannot be termed to be de-horse the rules. There was no nepotism and favoritism and that selection was made according to the rules and the recommendation was correctly made. 5. There was no nepotism and favoritism and that selection was made according to the rules and the recommendation was correctly made. 5. Respondent No. 4 also submitted affidavit-in-opposition, inter alia, stating that he has done M. Sc. in Forensic Science and, thereafter, worked in the State Forensic Science Laboratory from 2006 and Toxicology was a subject in the first year of M. Sc., and therefore, it cannot be said that he had no experience on the subject. Since there is nothing in the Rule that the experience must be in the Branch of Toxicology, his selection was according to Rule and his appointment should not be disturbed. 6. It is submitted by learned counsel, Mr. L.H. Lianhrima that the Recruitment Rules has prescribed the working experience in any recognized Forensic Science Laboratory and both the petitioner and R.4 worked in the State Forensic Science Laboratory and the petitioner all through worked in the Toxicology Department, which has been categorically certified by the SFSL(Annexure-IV). R.4, though, worked in the SFSL but in a different branch i.e. Biology and Serology Division of the SFSL and gathered experience in other field and not in Toxicology. While the post was meant for Assistant Director, Toxicology and the petitioner was having with long experience of dealing with the branch of Toxicology, he would have been selected by the MPSC and MPSC has done favoritism and nepotism while selecting R.4, and the State Government, without considering the representation of the petitioner, wrongly appointed R.4 to the post and the entire process, therefore, liable to be quashed. Learned Addl. A.G. has submitted that the State Government requested the MPSC for recommending names for filling up of the posts and on the basis of the recommendation made by MPSC, appointment of R.4 has been made. He has also submitted that the matter was referred to the Law Department for examination and Home Department also examined the matter and he left the issue to the Court for consideration. He has also submitted that apparently R.4 was having with the experience as per rules though it was not in Toxicology Branch and if the rule is strictly considered, appointment of R.4 may not be disturbed. Learned senior counsel, Mr. M. Zothankhuma, appearing for respondent No. 3 has submitted that there was no favoritism or nepotism, done by the Commission. He has also submitted that apparently R.4 was having with the experience as per rules though it was not in Toxicology Branch and if the rule is strictly considered, appointment of R.4 may not be disturbed. Learned senior counsel, Mr. M. Zothankhuma, appearing for respondent No. 3 has submitted that there was no favoritism or nepotism, done by the Commission. The Commission recommended the candidate considering the qualification and experience of the candidates as per rules. Since the rule as prescribed for working experience in any recognized Forensic Science Laboratory and since R.4 was having with experience of working in the SFSL, he was selected, and therefore, it cannot be said that the rule was violated by the MPSC and the selection was not fairly made. Learned counsel, Mr. R. Laltanpuia for respondent No. 4 has submitted that R.4 has all requisite qualifications and he has been selected in due process by MPSC and therefore his appointment to the post cannot be disturbed. 7. The Recruitment Rules for the post of Assistant Director(Forensic) prescribed the following education qualification and other qualifications for the purpose of direct recruitment: 1. M. Sc. in (Forensic, Chemistry, Physics, Mathematics, Zoology, Botany, Bio-Chemistry, Micro-Biology, Bio-Physics etc.) OR Bachelor of Science with Post Graduate Diploma in Forensic Science; With working experience in any recognized Forensic Science Laboratory. 2. Working knowledge of Mizo language upto Middle School standard. 3. Preference will be given to M. Sc.(Forensic) or B. Sc. with Post Graduate Diploma in Forensic Science. It is an admitted fact that the petitioner and R.4, both were having with requisite educational qualifications and were eligible for the post of Assistant Director (Forensic). The language of the Recruitment Rules as reproduced above, makes it clear that working experience in any recognized Forensic Science Laboratory is an essential qualification for recruitment. Both the petitioner and R.4 were working in the State Forensic Science Laboratory under the Home Department of Government of Mizoram and the SFSL issued certificate of experience to both the candidates. Copy of the certificate of experience of the petitioner is marked at Annexure-IV to the writ petition, which runs as follows:- CERTIFICATE OF EXPERIENCE This is to certify that Shri. Lalmuanawma s/o J. Thatlinga, resident of Republic Vengthlang, Aizawl, is a regular employee of Forensic Science Laboratory, Mizoram, working in Chemistry Division as Forensic Science Assistant since December 2003 till date. During his service, he had handled over 850 toxicological, narcotic drugs, explosives, liquor etc. cases consisting of more than 1300 exhibits referred for analysis from various law enforcing agencies. He was awarded a good number of rewards towards his contributions in handling cases and his outstanding service. He had undergone various necessary trainings for the operation, handling and maintenance of the sophisticated instruments available in the Laboratory and had also imparted trainings to police personnel at different places. His sincerity, devotion and expertise in the field had tremendously contributed to the development of the Division as well as this Office. Date : 25th Nov. 2010 Place : Aizawl (H. SANGCHUNGNUNGA) Joint Director Forensic Science Laboratory Mizoram : Aizawl Copy of the experience certificate of R.4 is marked at Annexure-XI to the writ petition, which runs as follows:- CERTIFICATE OF EXPERIENCE This is to certify that Mr. Lalhmachhuana s/o Sapmawithanga, Forensic Science Assistant has been serving at Forensic Science Laboratory under Biology & Serology Division since 08.06.2006 till date. During his service he was involved in the examination of crime cases and disposed a number of cases and visited Crime Scene at various places to guide the I.O and he has given lectures at different places of Police Training Centers, Mizoram. He attended Court to give expert opinion whenever called for. As he is sincere and devoted to his duties, he was awarded 8(eight) Nos. of Cash reward, one of which is a DGP reward. Dated : Aizawl The 25th November, 2010 (H. SANGCHUNGNUNGA) Joint Director Forensic Science Laboratory, Mizoram Mualpui, Aizawl A bare reading of both the certificate of experience, as reproduced above, shows that those were issued by the State Forensic Science Laboratory, Govt. of Mizoram. Certificate of the petitioner shows that he worked in the Toxicology Branch of the SFSL continuously and gathered sufficient experience in the field, whereas the certificate of experience of R.4 shows that he worked in Biology and Serology Division and there was nothing that he gathered any experience in Toxicology Branch. No doubt, the Rule did not specify as to the experience to be gathered in particular branch but where a candidate is available with wide experience in the particular branch, he should be presumed to have edge over the other candidate(s). Admittedly, there was no written test. Selection was done based on the qualification and experience of working in the field. Admittedly, there was no written test. Selection was done based on the qualification and experience of working in the field. Both the petitioner and R.4 were having with requisite educational qualifications. Now, if we see to the experience of both of them, definitely, the petitioner is the better candidate to be selected for the post of Assistant Director (Toxicology). The posts are meant for dealing with highly technically subject and therefore it is expected that a technically sound person, having better experience, should be selected for the post. According to the experience certificate issued by the SFSL to both the candidates, it appears, the petitioner has gathered experience in respect of Toxicology Branch of the Forensic Science and R.4 has no experience in that Branch. However, MPSC has recommended the name of R.4, but no reason assigned as to why R.4 was given preference over the petitioner. Nothing stated in the affidavit-in-opposition filed by respondent No. 3 (MPSC). 8. Let me refer here some of the relevant paragraphs of the affidavit-in-opposition of respondent Nos. 1 and 2. In para 6, sub-para 2 and 3, respondent Nos. 1 and 2 stated thus: Notwithstanding what have been stated in the preceding paragraph, as a matter of precaution, the opinion and advice of Law & Judicial Department was obtained. The Law & Judicial Department opined that the matter under reference is embroiled in technically especially since it is apprehended that the Government may possibly recruit two officers whose technical knowledge and expertise are exactly the same, whereas under common knowledge dictates, serology and toxicology are entirely two distinct and different subjects and without each one supplementing the other, forensic expertise in the Police Department would still lack expertise in a very important area. It is understood that study of both these subjects are available in both the B. Sc. course and medical study courses. It is possible that the candidates knowledge may be quite sufficient for serology and toxicology, meaning thereby that either one of the candidate's knowledge may fulfill the requirement. It maybe advisable that the Home Department may consider to refer back the matter to the MPSC for a review and if so permissible, the MPSC may involve an expert from their side in the process of such review. In para 8 and 11 of the affidavit-in-opposition, respondent Nos. 1 and 2 stated thus: 8. It maybe advisable that the Home Department may consider to refer back the matter to the MPSC for a review and if so permissible, the MPSC may involve an expert from their side in the process of such review. In para 8 and 11 of the affidavit-in-opposition, respondent Nos. 1 and 2 stated thus: 8. That with regard to the statements made in Paragraph No. 7 of the writ petition, I say that the possession of sufficient knowledge gained through experience by the petitioner is not disputed. However, the technically of the Recruitment Rules under which recommendation was made by MPSC (respondent No. 3) was the reason of accepting the recommendation 11. That with regard to the statements made in Paragraph Nos. 11-15 of the writ petition, I say that the Hon'ble Court be moved to decide the matter as deemed just and according to the conclusion reached in the course of hearings. In para 4 of the affidavit-in-opposition, respondent No. 3 stated thus: 4. In reply to para 6 to 9 of the writ petition, it may be submitted here that the respondent No. 4's educational qualification is M.Sc in Forensic Science. The respondent No. 4 also has working experience in the Forensic Science Laboratory, Mualpui as Forensic Science Assistant since 8.6.2006. The petitioner has the educational qualification of B. Sc. with PG Diploma in Forensic Chemistry and Toxicology. The petitioner has been working in the FSL, Mualpui as Forensic Science Assistant since December, 2003. Thus, both the petitioner and the respondent No. 4 have the necessary qualification for appointment to the post of Assistant Director (Forensic) as per the Mizoram Police Department (Group-A Post) Recruitment Rules, 2001. As such the recommendation made by the answering respondent cannot be said to be against the Recruitment Rules in as such as the Recruitment Rules does not make it mandatory that the candidate should have Toxicology as a subject. The existing Recruitment Rules is silent on Toxicology. The petitioner also seems to be prone to exaggeration when he states that he is more meritorious and brilliant than the respondent No. 4. It is also a fact that students of M. Sc. (Forensic) have to do a general paper on Toxicology in their first year and it is a fact that the respondent No. 4 duly did his general paper on Toxicology in M. Sc. first year. It is also a fact that students of M. Sc. (Forensic) have to do a general paper on Toxicology in their first year and it is a fact that the respondent No. 4 duly did his general paper on Toxicology in M. Sc. first year. Thus, there has been no violation of Recruitment Rules by the answering respondent. 9. In view of the above statements made by the respondents and in view of the experience certificates as already reproduced above, it is amply clear that the selection of R.4 for the post of Assistant Director (Toxicology) was not fair and proper. It is also amply clear that the experience on the subject for which the post was meant was not at all taken into consideration at the time of selection, and therefore, the recommendation and consequential appointment thereof are liable to be interfered. It is kept in mind that MPSC is the expert body for such selection. It is also kept in mind that the Court should not sit as a super expert body for selection of candidates but, if it is apparently shown and brought on record that the materials on the basis of which selection was made, were violative of the rules, ethics and due regard was not given to the materials produced on record, the Court must interfere to put the things at right otherwise, the aggrieved persons would be left with no redress or remedy. Accordingly, the recommendation made by MPSC dated 28.02.2011 for the post of Assistant Director (Toxicology) (Annexure-XII to the writ petition) and consequential appointment of R.4 to the post of Assistant Director(Toxicology), vide Notification dated 11.05.2011 (Annexure-XIII to the writ petition), are set aside and quashed. The respondents are directed to proceed for the selection to the post afresh according to rules.