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2017 DIGILAW 1240 (GAU)

Anguto Sophie v. State of Nagaland

2017-09-05

LANUSUNGKUM JAMIR

body2017
ORDER : Lanusungkum Jamir, J. 1. The Nagaland Public Service Commission ("NPSC" in short) made an advertisement dated 19-10-2016 by which several posts were advertised including five posts of Assistant Public Prosecutor (Class-1 Gazetted) under the Department of Justice & Law. The petitioner being a graduate in LLB and having the educational qualification prescribed in the advertisement applied for the post of Assistant Public Prosecutor ("APP" in short). The petitioner was allowed to sit in the written examination and "he was declared successful by Notification, dated 28-06-2017. Call letter was also issued to the petitioner for interview to the Viva-voce which was scheduled to be held on 28-07-2017 at 9:00 a.m. The petitioner accordingly appeared before the interview board but as he could not submit his HSSLC pass certificate, his candidature was rejected. Thereafter, the NPSC issued a Notification dated 02-08-2017 rejecting the candidature of three applicants for various reasons. In the said Notification, the name of the petitioner appeared at Serial No. 1 and the reason for rejection of his candidate was due to failure to produce HSSLC pass certificate. Being aggrieved, the present writ petition. Heard Mr. A. Zho, learned counsel for the petitioner. Also heard Ms. Inaholi, learned Government Advocate appearing for the State respondents as well as Mr. C.T. Jamir, learned senior counsel assisted by Mr. Yalemsen, learned counsel appearing for the respondent No. 3/NPSC. 2. Mr. A. Zho, learned counsel for the petitioner submits that the petitioner passed his Pre-University Examination in the year 2007 from the Maharashtra State Board of Secondary and Higher Secondary Education, Pune. Thereafter, the petitioner completed his five years course LLB in the year 2013 from Pune University. Immediately, the petitioner enrolled himself with the Bar Council of Assam, Nagaland, Mizoram, Arunachal Pradesh & Sikkim. To that effect, a certificate bearing Roll No. 1159 of 2013 was issued to the petitioner. As the advertisement dated 19-10-2016 prescribes the eligibility educational qualification should be graduate in any discipline with LLB and registered as member of any bar council and the petitioner having satisfied the said educational qualification had applied through online against the post of APP advertised in the advertisement dated 19-10-2016. The petitioner was allowed to site for the written examination wherein, he was successful and thereafter, he was called for the interview to be held on 28-07-2017. The petitioner was allowed to site for the written examination wherein, he was successful and thereafter, he was called for the interview to be held on 28-07-2017. In terms of the call letter, the petitioner appeared before the interview however, his case was not taken up inasmuch as, he did not have the pass certificate of HSSLC. Thereafter, the candidature of the petitioner was rejected by Notification dated 02-08-2017. It is submitted that passing of LLB degree would indicate that the petitioner had already passed his Pre-University Examination and further enrollment in the Bar Council would also indicate that the petitioner has been successful in all the past examination faced by him. Therefore, merely, due to the failure on the part of the petitioner to produce the pass certificate in respect of HSSLC, the interview board could not have rejected the case of the petitioner summarily. Relying on a decision of the Hon'ble Supreme Court in the case of Union Public Service Commission v. Gyan Prakash Srivastava, reported in (2012) 1 SCC 537 : (AIR 2012 SC (Supp) 621) learned counsel for the petitioner submits that the Hon'ble Supreme Court has held that since the respondent therein had attached with his application, the certificate issued by the Bar Council of Uttar Pradesh which must have been issued keeping in view the fact that he possessed degree in law awarded by a university recognized by the Bar Council of India for the purpose of the Act and the certificates issued by different departments of the Central Government showing his employment on different posts, the commission was not at all justified in refusing to entertain his application for the post of legal Advisor. He contends that the present case is similarly situated with the case of Gyan Prakash Srivastava (supra). In that view of the matter, learned counsel for the petitioner submits that the Notification dated 02-08-2017 be set aside and quashed and the NPSC may be directed to hold an interview board for considering the case of the petitioner. 3. Mr. Inaholi, learned Government Advocate appearing for the State respondents submits that the user Department has requisitioned for the five posts of APR and therefore, the State respondents has nothing to comment with regard to the present controversy. 4. Mr. 3. Mr. Inaholi, learned Government Advocate appearing for the State respondents submits that the user Department has requisitioned for the five posts of APR and therefore, the State respondents has nothing to comment with regard to the present controversy. 4. Mr. C.T. Jarnir, learned senior counsel appearing for the respondent No. 3/NPSC submits that the terms and conditions specified in the advertisement dated 19-10-2016 is specific. The petitioner having accepted the said terms and conditions had made his application. He has drawn the attention of this Court specifically to Clause 6(iii) of the advertisement dated 19-10-2016 wherein, in the instructions to the applicants, it has been provided that immediately after declaration of the written results, selected candidates must submit attested/self attested photocopies of the documents/materials incorporated in sub-clauses (a) to (h). He also submits that Clause 6(iii)(d) also provides for proof of educational qualifications, mark sheets and pass certificates from matriculation onwards till requisite qualification must be submitted. In the present case, the petitioner was aware that he had to submit all the marksheets and pass certificates starting from matriculation onwards till the requisite qualifications prescribed in the advertisement dated 19-10-2016. Being aware of the same, the petitioner could not produce the HSSLC pass certificate. Learned senior counsel for the respondent No. 3 submits that the NPSC having found that the petitioner has failed to submit the HSSLC pass certificate had informed the petitioner about the same, upon which the petitioner sought for time for production of the same. Such opportunity was given to the petitioner however, he could not produce the same. The terms and conditions specified in the advertisement dated 19-10-2016 is mandatory and therefore, the NPSC is not in a position to waive any of the terms and conditions contained in the advertisement dated 19-10-2016. He also submits that several candidates after considering the terms and conditions prescribed in the advertisement dated 19-10-2016 did not apply for the post inasmuch as, they were not qualified. However, the petitioner while making his application had made false statements with regard to his educational qualification more particularly, when at Clause 8, it has been specifically stated that in case it is detected at any stage of recruitment that a candidate does not fulfill the eligibility norms and/or that he/she has furnished incorrect/false information or has suppressed any material facts, his/her candidature shall stand cancelled. While making the application through online, the petitioner had also made a declaration that all the statements made in his applications are true, complete and correct to the best of his knowledge and belief and in the event of any information being found false or incorrect or ineligibility detected during or after the examination, he shall be liable to be disqualified. Having made such a declaration, the petitioner cannot approach this Court praying for the relief as sought for. It is also submitted that if the petitioner was not fulfilling the eligibility criteria as prescribed in the advertisement dated 10-10-2016, he could have approached this Court at an earlier stage challenging the terms and conditions made in the advertisement dated 10-10-2016. However, at this stage, the petitioner is barred to make such challenge. Learned senior counsel for the respondent No. 3 also placed reliance in the case of Dhananjay Malik and others v. State of Uttaranchal and others, reported in (2008) 4 SCC 171 : ( AIR 2008 SC 1913 ) to contend that the petitioner having participated in the selection process without any demur, he is estopped from complaining that the selection process was not in accordance with the rules. Further, learned senior counsel for the respondent No. 3 also places reliance in the case of Ashok Kumar Sharma and another, reported in 1993 Supp (2) SCC 611 : (1993 AIR SCW 613). He also submits that when the petitioner is disqualified due to non-production of HSSLC pass certificate, the only consideration is whether on the principles of equity, the case of the petitioner can be considered. However, in the present case, when the petitioner has been given amble opportunity by the NPSC to produce his HSSLC pass certificate, the principle of equity cannot be applied or be stretched to accommodate the petitioner. 5. I have given my anxious consideration to the submission forwarded by the learned counsel for the parties. 6. There is no dispute that the petitioner has the essential qualification in terms of the advertisement dated 19-10-2016. It is also not in dispute that the petitioner has enrolled as an advocate under the Bar Council of Assam, Nagaland, Mizoram Arunachal Pradesh and Sikkim. The only consideration is whether due to the failure on the part of the petitioner to produce the HSSLC pass certificate, his candidature can be cancelled. 7. It is also not in dispute that the petitioner has enrolled as an advocate under the Bar Council of Assam, Nagaland, Mizoram Arunachal Pradesh and Sikkim. The only consideration is whether due to the failure on the part of the petitioner to produce the HSSLC pass certificate, his candidature can be cancelled. 7. The petitioner has passed his Pre-University Examination from the Maharashtra State Board of Secondary and Higher Secondary Education, Pune in the year 2007. He continued to obtain his law degree (five years course) and thereafter, was enrolled in the Bar Council. This would clearly indicate that the petitioner had already passed his Pre-University. 8. The contentions of the learned senior counsel appearing for the respondent No. 3 that the petitioner after participating in the recruitment process cannot turn around and say that the selection process was not held in accordance with the rules has also been considered. However, in the present case, it is seen that the petitioner had approached this Court immediately on issuance of the Notification dated 02-08-2017 by which his candidature was rejected when recruitment process was still on. Therefore, this Court is unable to accept the submission made by the learned senior counsel appearing for the respondent No. 3/NPSC. The case of Gyon Prakash Srivastava (AIR 2012 SC (Supp) 621) (supra) relied upon by the learned counsel for the petitioner has been considered by this Court. This Court is of the considered opinion that the present case is similarly situated with the case of Gyan Prakash Srivastava (supra). Merely, because the petitioner did not have the pass certificate of HSSLC, this Court is of the considered opinion that the same would not have been a valid ground for rejecting his candidature more particularly, when he had already obtained his LLB degree and got enrolled in the Bar Council. 9. The terms and conditions as reflected in the advertisement, dated 19-10-2016 at Clause (iii)(d) clearly provides that mark sheets and certificates from matriculation till the requisite qualifications should be submitted. However, in the present case, the petitioner could not produce his HSSLC pass certificate but the rest of the mark sheets and pass certificates were furnished by the petitioner. It is also important to note that the petitioner had produced the mark sheet in respect of HSSLC. Therefore, non-production of HSSLC pass certificate would not have been fatal to dis-qualify the petitioner. It is also important to note that the petitioner had produced the mark sheet in respect of HSSLC. Therefore, non-production of HSSLC pass certificate would not have been fatal to dis-qualify the petitioner. At this stage, this Court has also taken into consideration that the petitioner is in possession of the pass certificate with regard to HSSLC issued by the Maharashtra State Board of Secondary and Higher Secondary Education, Pune. It is submitted by the learned counsel for the petitioner that the same is a digital copy obtained online. Further, in terms of Section 85(b), (c) of the Indian Evidence Act, the same is admissible. 10. In that view of the matter and in the peculiar facts and circumstances of the case, this writ petition succeeds and is accordingly allowed. 11. The impugned Notification dated 02-08-2017 issued by the NPSC in respect of the petitioner is set aside. The NPSC is directed to conduct a separate Viva-voce test in respect of the petitioner within a period of 1 (one) week from today.