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2017 DIGILAW 1369 (GAU)

C. Vanlalchawimawia v. State of Mizoram

2017-10-25

M.R.PATHAK

body2017
JUDGMENT : M.R. Pathak, J. 1. Heard Mr. T. Lalnunsiama, learned counsel appearing for the petitioners and Ms. Mary L. Khiangte, learned Government Advocate appearing for the State respondents. The respondent No. 2 Under Secretary, Secretariat Administration Department, Government of Mizoram on 04.05.2017 issued an Advertisement under No. 1/2017-18 published in the newspapers, seeking applications from HSSLC qualified Candidates from the age group of 18 to 35 years, with the relaxation of 5 years for the SC/ST Candidates, for recruitment of 20 (Twenty) numbers of posts of Grade-IV (Muster Roll) in the Secretariat Administration Department (SAD, in short), informing that such applications shall be entertained between 04.05.2017 to 19.05.2017. 2. Pursuant to the said Advertisement dated 04.05.2017, the petitioners being eligible applied for the said posts under SAD. Finding their applications in order the Supervisor of Examination and the Superintendent, SAD (E), Government of Mizoram on 02.06.2017 issued Admit Cards to the petitioners for their appearance in the written examination of said Grade-IV (MR) posts under SAD fixing the date of the written examination on 29.06.2017. Accordingly, the petitioners appeared the said written examination on 29.06.2017 in their respective examination centers specified in their Admit Cards issued by the respondents. 3. After examining the answers scripts of the written examination held on 29.06.2017, the respondents vide No. A. 12031/5/2015-SAE dated 31.07.2017 declared the result of the written examination for the said Grade-IV (MR) posts under SAD selecting 42 (Forty - Two) Candidates, including the petitioners, notifying that personal interview of the advertised posts of the selected Candidates shall be held on 17.08.2017 from 10:00 AM onwards at Secretariat Conference Hall, New Capital Complex, Khatla, Aizawl. For the said purpose, the respondents on 01.08.2017 issued call letters to those 42 selected Candidates including the petitioners. 4. But, issuing notice under No. A.32031/5/2015-SAE dated 16.08.2017 (Annexure-6 to the Writ Petition), the respondents cancelled the personal interview for the said posts of Grade-IV (MR) under SAD, stating that the same has to be cancelled due to unavoidable circumstances and that the whole process will have to be started a new. The respondents by issuing notice dated 16.08.2017 also informed the selected Candidates in the written examination for the aforesaid posts, including the petitioners regarding cancellation of personal interview on 17.08.2017. 5. The respondents by issuing notice dated 16.08.2017 also informed the selected Candidates in the written examination for the aforesaid posts, including the petitioners regarding cancellation of personal interview on 17.08.2017. 5. Being aggrieved with the same, the petitioners on 22.08.2017 submitted representation before the respondents for re-consideration of the Order dated 16.08.2017, forwarding copies of the same to the Chief Minister of the State as well as the concerned Minister of the Secretariat Administration Department. 6. After re-examining the matter on the basis of the representation submitted by the selected Candidates for interview, including the petitioners, the Secretary to the Government of Mizoram in the SAD, respondent No. 1 came to a view that some Candidates were taking along with them their mobile phones inside the examination halls that was prohibited under SI. No. 2 of instructions to the Candidates in the Admit Card and the vide Order No. 12031/5/2015 SAE dated 31.8.2017 (Annexure-9 to the Writ Petition), uphold his earlier Notice dated 16.08.2017, cancelling the personal interview of the selected Candidates to the posts of Grade-IV (MR) in the SAD with the observation that written examination for the 20 (Twenty) Nos. of Grade-IV (MR) posts shall be conducted a fresh. 7. The petitioners thereafter served advocates notice on the respondents on 5.9.2017 and sought for a reply with regard to the list of Candidates and their respective Roll Nos. who brought mobile phones in the examination hall during such written examination on 29.06.2017 and action taking against those candidates who had resorted to such unfair means during the said examination. 8. The respondents in the meanwhile on 12.09.2017 (Annexure-7 to the Writ Petition) re-issued Admit Cards to the applicants of those 20 (Twenty) posts of Grade-IV (MR) in the SAD, advertised on 04.05.2017 informing them that the written examination for the said advertised posts have been fixed on 07.10.2017. 9. For such acts of the respondents in cancelling the earlier written selection process held on 29.06.2017 and for deciding to conduct fresh written examination for 20 (Twenty) Nos. 9. For such acts of the respondents in cancelling the earlier written selection process held on 29.06.2017 and for deciding to conduct fresh written examination for 20 (Twenty) Nos. of posts of Grade-IV (MR), advertised on 04.05.2017, the petitioners, who were earlier selected in the written examination for the said advertised posts, preferred this writ petition on 03.10.2017 praying for setting aside the impugned notice dated 16.08.2017 (An-nexure-6 to the Writ Petition) as well as the Order dated 31.08.2017 (Annexure-9 to the Writ Petition) issued by the respondent No. 1 with the further prayer to conduct their personal interview for the post advertised on 04.05.2017, as per the result of the written examination held on 29.06.2017, that was published by the respondents under No. A. 12031/5/2015-SAE dated 31.07.2017. 10. The petitioners also prayed for an interim Order to stay the fresh written examination for the posts of Grade-IV (MR) under SAD that was fixed on 07.10.2017. 11. The contention of the petitioners herein are that in terms of the advertisement dated 04.05.2017, they applied for the post of Grade-IV (MR) under SAD and they being found eligible and their applications being in order, the respondents issued them Admit Cards for their appearance in their written examination fixed on 29.06.2017. For appearing in such written examination with regard to the posts advertised in their Admit cards, the respondents issued the following instructions to all such Candidates:- "Instructions to candidates i. Candidates will be admitted to the Examination Hall on production of this Admit Card. Admission will ordinarily be refused to a candidate who is more than half an hour late. ii. Candidate should not bring any articles such as books, notes, loosen sheets, mobile phones, pagers, digital diaries, etc. However, they will be allowed to use battery operated pocket calculator only. iii. Candidates detected in using unfair means or communicating with one another or found in possession of unauthorised books and papers during the examination shall be expelled and their names struck off the rolls. iv. Silence must be observed in the Examination Hall. v. Mobile phones, if any, brought to the examination will have to be left outside the Examination Hall and the Department will not be responsible for their safe keeping. vi. No candidate will be allowed to leave the Examination Hall before 30 minutes from the commencement of the examination." 12. iv. Silence must be observed in the Examination Hall. v. Mobile phones, if any, brought to the examination will have to be left outside the Examination Hall and the Department will not be responsible for their safe keeping. vi. No candidate will be allowed to leave the Examination Hall before 30 minutes from the commencement of the examination." 12. The petitioners contended that on 29.06.2017, they appeared in the written examination for the advertised posts from various examination centers as fixed by the respondents in their respective Admit cards and in the said written examination, there were two papers. Paper-I consists of General English with 70 marks and Essay Writing with 30 marks, whereas Paper-II consists of General Studies with 70 marks and Simple Arithmetic with 30 marks. It is stated by the petitioners that after examining their written answer scripts of said examination, the respondents declared the result on 31.07.2017, in which 42 Candidates were selected including them and that in the said declared result itself the respondents on 31.07.2017 notified that personal interview of the selected Candidates shall be held on 17.08.2017 and for the said purpose, the respondents on 1.8.2017 have issued call letters to them for their personal interview. It is further stated by the respondents that without any reasons, the respondents have cancelled the entire selection process and decided to initiate a fresh selection process for the advertised post of 04.05.2017 by holding new examination. The petitioners submitted the entire acts of the respondents are arbitrary, bias and in violation of the provisions of Articles 14 and 16 of the Constitution regarding public employment. 13. This Court at the motion stage, after hearing the parties and on the basis of a letter of the respondents dated 04.10.2017, that was placed by the learned Government Advocate in the case, in the interim, by Order dated 05.10.2017 stayed the proposed fresh written examination that was to be held on 07.10.2017 for filling up of 20 posts of Grade-IV (MR) advertised on 04.05.2017 and the said interim Order is still in force. 14. 14. The respondents filed their affidavit in the matter wherein they clarified that the Secretary to the Government of Mizoram in their respective Departments are the appointing authorities for recruitment of Grade-IV (MR) employees and as such, the Secretary to the Government of Mizoram in the Secretariat Administration Department is the appointing authority with regard to the posts advertised on 04.05.2017 involved in the case and therefore, he being the appointing authority, he has the full power on the conduct of written examination or cancellation of personal interview as per law with regard to those posts. 15. In the said affidavit, the respondents stated that after publication of the result of the written examination and just before the date fixed for interview, one of the Candidate for the said post, namely, K.C. Lalhriatpuii, with Roll No. 374, who appeared in the written examination on 29.06.2017, but not selected in the said examination, informed the respondents that another Candidate, namely, Lalmawizuala with Roll No. 561, S/o. R.L. Rohnuna, who also appeared in the said written examination on 29.06.2017, brought mobile phone in the examination hall at Government Aizawl College centre at the time of said examination, which was noticed by her. 16. The respondents submitted that on the basis of said information of K.C. Lalhriatpuii and since there had been instances of adoption of unfair means by the Candidate using smart phones (mobiles) like the Candidate Lalmawizuala during written examination on 29.6.2017, which was not brought to the notice of the Secretary, SAD prior to 16.8.2017; they decided to conduct a fresh process of selection of Candidates with regard to posts of Grade-IV (MR), as advertised on 04.05.2017 by holding re-examination, so as to uphold the right to equality and fairness in public employment, since re-examination is not in violation of the Fundamental Rights. 17. On being enquired, learned Government Advocate from the record submitted that no complaint was made either by the invigilators or center supervisors who conducted the written examination on 29.06.2017 or by the examiners of the answers scripts of the Candidates who appeared in the said written examination on 29.06.2017 regarding any unfair means or mal-practices adopted by any of the Candidates, including the 42 (forty two) selected Candidates in the written examination as notified on 31.07.2017, which also includes the petitioners. Learned Government Advocate from the record also replied that excepting the aforesaid case of using of mobile/smart phone by the Candidate Lalmawizuala, there is no other complaint in the record. Government Advocate from the record also stated that said Lalmawizuala, Roll No. 561 was called by the authority concerned after such complaint and he admitted of carrying the smart phone in the examination hall at Government College, Aizawl on 29.06.2017, the date of examination and that as the said fact was brought to the notice of the authority later, as such, said Lalmawizuala could not be punished on the spot. The Government Advocate, on being enquired, also from the record submitted that said Lalmawizuala, Roll No. 561 is not a selected Candidate amongst the 42 (forty two) selected Candidates in the written examination as notified on 31.07.2017. 18. The Hon'ble Apex Court in the case of Onkar Lal Bajaj Vs. Union of India reported in (2003) 2 SCC 673 have held that- "The role model for Governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of Governance in a civilized society based on rule of law not only has the base on transparency but must create an impression that the decision making was motivated on the consideration of probity. The Government has to rise above the nexus of festive interest and nepotism and eschew window dressing. The act of Governance has to withstand the taste of judiciousness and impartially and avoid arbitrary or capricious actions. Therefore, the principle of Governance has to be tasted on the touch stone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration of other matter, though on the face of it the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve other goal or popular accolade, that decision cannot be allowed to operate." 19. In a given situations, where during the selection process, Candidates adopted unfair means such as mass copying etc. In a given situations, where during the selection process, Candidates adopted unfair means such as mass copying etc. and where the bad cannot be identified from the good, it is settled that the Court shall not interfere with the action of the Government deciding to cancel the entire selection process and to start a fresh, particularly when there is some material for the Government to act one way or the other. 20. Though the respondents issued the impugned Notice and the Order dated 16.8.2017 and 31.08.2017 respectively, but it is not the case of the respondents that the entire selection process is bad and tainted as there are large numbers of complaints of adopting unfair means by the Candidates during the written examination held on 29.6.2017 and it is not possible to identify the tainted Candidates from amongst the untainted and/or selected Candidates in the said selection. 21. The State respondents in their affidavit clearly stated that just before the oral interview of the Candidates selected in the written examination for the post advertised, one unselected Candidate complained about another unselected Candidate that the later carried a mobile phone in the examination hall on 29.06.2017 in the examination centre at Government College, Aizawl, which the complainant did not inform before the invigilators present in the examination hall during the said examination on 29.06.2017. Excepting the same, there is no other material before the State respondents to show regarding any large scale copying or using of smart/mobile phones or resorting to any other illegal means during the time of written examination held on 29.06.2017 at different examination centers from any of the invigilators, centre supervisors of such examination centers. The respondents also failed place anything to show that the examiners of the answer scripts of the Candidates appeared in the written examination held on 29.06.2017 reported before the authorities that the answers scripts of the Candidates appear to be tainted because of mass copying or others. 22. It is seen that the respondents have already made an enquiry with regard to the complaint made by an unsuccessful Candidate against another unsuccessful Candidate the respondent did not make any enquiry with regard to the other Candidates, including the Candidates selected in the written examination held on 29.06.2017. As such, the respondents have already segregated the tainted Candidate from the said selection process. As such, the respondents have already segregated the tainted Candidate from the said selection process. Further, no complaints have been lodged by any against the Candidates selected in the written examination held on 29.06.2017 whose names were notified on 31.07.2017 as selected for personal interview. 23. Moreover, there is also no material before the State respondents that the selected Candidates including the petitioners adopted any unfair means during their written examination held on 29.06.2017 nor there is any adverse enquiry report regarding the same against them. 24. In the present case, just before personal interview of the Candidates selected in the written examination held on 29.06.2017, an unsuccessful Candidate in the written examination raised the controversy against another such unsuccessful Candidate for carrying mobile phone in the examination hall on 29.06.2017 and the respondents in absence of any materials, without any valid reasons cancelled the entire process of selection by the impugned notice and Orders dated 16.08.2017 and 31.08.2017 respectively. Article 14 of the Constitution guarantees everyone equality before law and the un-equals cannot be clubbed and therefore, such an arbitrary exercise of the power of the respondents that too passed without application of mind deserves to be annulled being an arbitrary exercise of power. It is also not the case of the State respondents that while issuing the impugned notice and order cancelling the written examination held on 29.06.2017 and decided to start the selection process afresh, though did not set out any reasons in those notice and order and but, in the absence of any such reasons in support of the impugned notice and order, actually they had set out such reasons in any record or file. From all these it can be ascertained that the respondents have not properly applied their mind before issuing the impugned notice and order cancelling the earlier selection process and to start afresh. 25. From all these it can be ascertained that the respondents have not properly applied their mind before issuing the impugned notice and order cancelling the earlier selection process and to start afresh. 25. The fact that complaint made by a unsuccessful Candidate in the written examination regarding use of mobile/smart phone during the written examination in the examination hall by another unsuccessful Candidate in the written examination cannot by itself justify the cancellation of the entire selection process and to initiate fresh selection process, unless the authority concerned applies its mind with regard to the allegations levelled by the complainants and that the authority, after making proper enquiry, comes to the conclusion that the grievance made in the complaint was not without merit. If the selection process is cancelled, just because a complaint has been lodged by unsuccessful Candidate against another unsuccessful Candidate and in that circumstances if the entire selection process is cancelled, it will lead to situations where no selection process shall be able to be finalized, since those who are not selected or failed to qualify can always made a grievance against the test or its fairness as in the present case. As such the impugned notice and order are difficult to sustain since those are not based on proper and due enquiry. Moreover, as the respondents of their own stated that just before the oral interview of the Candidates selected in the written examination, an unsuccessful Candidate lodged a complaint against another unsuccessful Candidate regarding the fairness in the written examination held on 29.06.2017 alleging mat the later adopted unfair means in the examination hall using mobile phone; therefore, from the impugned acts of the respondents nor even a prima facie view can be taken up or drawn regarding any unfairness adopted by the selected Candidates in the selection process which lead the respondents to cancel the entire selection process and to start a fresh. 26. Further, the respondents could not place any materials before the Court regarding adoption of any large scale unfair means by the Candidates during the written examination held on 29.06.2017, for which they could not segregate the tainted Candidates from the untainted Candidates so as to vitiate the entire selection process. 27. 26. Further, the respondents could not place any materials before the Court regarding adoption of any large scale unfair means by the Candidates during the written examination held on 29.06.2017, for which they could not segregate the tainted Candidates from the untainted Candidates so as to vitiate the entire selection process. 27. For the reasons aforesaid, the cancellation of selection made on the basis of the written examination held on 29.06.2017, in the entirety, by the respondents in the absence of specific and categorical finding by the impugned notice and Order dated 16.08.2017 and 31.08.2017 respectively, issued by the respondents, depriving the untainted selected Candidates, including the petitioners for an unreasonable ground, being arbitrary and in violation of the established principles of law require to be set aside and quashed. 28. Accordingly, the impugned notice under No. A.32031/5/2015-SAE dated 16.08.2017 (Annexure-6 to the Writ Petition), cancelling the personal interview of the selected Candidates including the petitioners for the posts of Grade-IV (MR) in the Secretariat Administration Department, Government of Mizoram and the Order No. 12031/5/2015 SAE dated 31.08.2017 (Annexure-9 to the Writ Petition), issued by the Secretary to the Government of Mizoram in the Secretariat Administration Department, being arbitrary and in violation of law are hereby set aside and quashed. Consequently, the Order fixing 07.10.2017 as the date of written examination and issuance of fresh Admit Card dated 12.09.2017 for the said written re-examination of the 20 (Twenty) posts of Grade-IV (Muster Roll) in the Secretariat Administration Department, Government of Mizoram, advertised on 04.05.2017 are also set aside and quashed. 29. The respondents herein now shall forthwith announce the date of personal interview of the Candidates and shall issue fresh call letters to them, including the petitioners, who were selected by the respondents vide Order under No. A. 12031/5/2015-SAE dated 31.07.2017 in the written examination held on 29.06.2017 for the 20 (Twenty) Nos. of posts of Grade-IV (MR) in the Secretariat Administration Department, Government of Mizoram, advertised on 04.05.2017. 30. The interim Order passed earlier in this proceeding on 05.10.2017 shall stand merged with this Order. With the aforesaid observations and directions, this Writ Petition stands disposed of.