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Gauhati High Court · body

2014 DIGILAW 438 (GAU)

Temjentula v. State of Nagaland & Ors.

2014-04-10

NISHITENDU CHAUDHURY

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1. By this application under article 226 of the Constitution, of India, the petitioner has challenged the legality and validity of the advertisement dated 11.1.2012 issued by the Nagaland Public Service Commission insofar as it relates to advertisement for the post of Assistant Professor in Education in Sao Chang College, Tuensang, defying the request made by the Government for exempting the post from the preview of consideration by the Public Service Commission. 2. The writ petitioner has a brilliant academic record. She did her M.A. in Education from Nagaland University and secured First Class First position and a Gold Medal. She also cleared the National Eligibility Test conducted by the University Grants Commission (UGC) as many as three times. She has required qualification for being appointed as Assistant Professor/Lecturer in any college under the existing requirements of the University Grants Commission (UGC) as well as the rules of the Government holding the field. Being eligible and suitable for the post of Assistant Professor (Education) the petitioner submitted an application before the appropriate authority for her appointment in Sao Chang College, Tuensang, Nagaland and thereupon she was appointed on contract basis. It is stated that presently the petitioner is holding the charge of H.O.D. of Education department in the said college. At this time, having completed three years of contract service, the petitioner submitted representation before the Government for regularization of her service on the ground that she has been working against the sanctioned vacancy, that she was appointed against sanctioned vacancy and that she has all the qualifications for the purpose of being regularly appointed to such sanctioned post. The petitioner further claimed that having worked for 3 years uninterruptedly in the college, she has gained experience and under such circumstances it would be in the interest of the college also to regularize her service as an Assistant Professor in the department of Education in Sao Chang College. While the representation . of the petitioner remained pending, request was made to the Nagaland Public Service Commission for issuing advertisement for filling up various posts including the post of Assistant Professor and in that request the post held by the petitioner was also included. Under such circumstances, the Nagaland Public Service Commission issued an advertisement on 11.1.2012. While the representation . of the petitioner remained pending, request was made to the Nagaland Public Service Commission for issuing advertisement for filling up various posts including the post of Assistant Professor and in that request the post held by the petitioner was also included. Under such circumstances, the Nagaland Public Service Commission issued an advertisement on 11.1.2012. But prior to issuance of this advertisement Government had already considered the representation of the petitioner and had made a communication to the Public Service Commission for exempting the said post of Assistant Professor for the subject Education in Sao Chang College, Tuensang from the preview of selection by the Nagaland Public Service Commission. The Public Service Commission did not accede to the request and proceeded with the selection process. 3. Aggrieved, the writ petitioner has approached this court challenging the very jurisdiction of the Public Service Commission insofar as it relates to turning down the request of the Government for exempting the post held by the petitioner from the preview of selection process taken by the Public Service Commission. The Public Service Commission has submitted an affidavit-in-opposition on 26.7.2012 and in the said affidavit the Public Service Commission has expressed its dissatisfaction in regard to repeated requests by the Government for exempting the post from the preview of the selection process. The Public Service Commission also raised question as to validity of the Government action for proceeding to regularize services of employees including the present petitioner contrary to Office Memorandum holding the field. 4. I have heard Mr. P.B. Paul, learned counsel for the petitioner and Mr. I. Longjem, learned counsel appearing on behalf of Nagaland Public Service Commission. I have also heard Ms. S. Mere, learned counsel for the respondent Nos. 1, 3 and 4. 5. The Public Service Commission is an authority of experts for the purpose of making recommendation to the Government for appointment to various posts in public service under article 320 of the Constitution. The Public Service Commission is appointed by the State. Recommendation made by a Public Service Commission appointed under article 320 of the Constitution, is recommendatory in nature. Once a recommendation is made by the Public Service Commission it is up to the Government either to accept it or not to accept. This shows that recommendation made by Public Service Commission is not mandatory on the Government. Recommendation made by a Public Service Commission appointed under article 320 of the Constitution, is recommendatory in nature. Once a recommendation is made by the Public Service Commission it is up to the Government either to accept it or not to accept. This shows that recommendation made by Public Service Commission is not mandatory on the Government. The nature and character of the recommendation made by Public Service Commission and the jurisdiction of a Public Service Commission appointed under article 320 of the Constitution of India came up for consideration before the hon’ble Supreme Court in umpteen numbers of cases. One such case was P.K. Jaiswal v. Devi Mukherjee, (1992) 2 SCC 148 . In said judgment the hon’ble Supreme Court was confronted with an identical event where after a Commission had issued an advertisement at the behest of the Government and pursuant thereto interview was also called, the Government informed the Commission not to proceed with the process of the selection because it was being examined as to the question of opening up an avenue for promotion from Assistant Secretary to the advertised post of Assistant Director General. The Public Service Commission did not oblige with the Government and proceeded with the selection. This action of the Public Service Commission was challenged before the hon’ble Supreme Court by way of special leave. The hon’ble Supreme Court after considering the earlier judgments held that action of the Commission was hasty and unjustified. Once the decision of the Government was communicated to the Commission before it had set the process of selection in motion it was not opened to the Commission to insist that it will go ahead with the selection process by following extent rule. Such an exercise by the Commission would be an exercise in futility, waste of public-time, money and hardship of the candidates who seek appointment. This is because whether to proceed for promotion or to make appointment to a particular post is a question within the province of the Government to decide and if it desires that selection process should be held in abeyance, the Commission cannot ignore the communication of the Government in that behalf and proceed to hold selection. This is because whether to proceed for promotion or to make appointment to a particular post is a question within the province of the Government to decide and if it desires that selection process should be held in abeyance, the Commission cannot ignore the communication of the Government in that behalf and proceed to hold selection. Such a decision was taken because the recommendation made by a Commission, appointed under article 320 of the Constitution, is merely recommendatory in nature and it is up to the Government either to accept or not to accept the same. This being the position when the Government already intimated its decision to the Commission for not pursuing the selection process, the Public Service Commission could not have sit in appeal over such decision of the Government so as to proceed with selection process. This would be mere a wastage of public time and money. Considering this aspect of the matter, the decision taken by the Public Service Commission in the present case is not appreciated. The selection process pursuant to advertisement dated 11.1.2012 insofar as it relates to selection to the post of Assistant Professor (Education) in Sao Chang College, Tuensang, stands quashed. 6. The writ petition is allowed. 7. No order as to cost.