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2017 DIGILAW 1426 (GAU)

H. Lalropianga v. Mizoram University

2017-11-10

MICHAEL ZOTHANKHUMA, MIR ALFAZ ALI

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JUDGMENT : 1. Heard Mr. C. Lalramzauva, learned senior counsel assisted by Mr. H. Zodinsanga for the appellants/writ petitioners. Also heard Mr. Aldrin Lallawmzuala, learned counsel for the respondents. 2. The appellants, as writ petitioners, had filed WP(C) No. 97/2013, with a prayer for appointing the appellants to the 13 vacant posts of LDC on the basis of the selection and recommendation made, in pursuance to the Employment Notice dated 21.12.2012. The same was dismissed by the learned Single Bench vide judgment and order dated 23.5.2014, holding that the selection of the candidates only on the basis of interview marks was against the scheme of examination. The learned Single Judge further held that the Selection Committee could not have given interview marks on a total of 100 marks as the marks allotted in the scheme of examination was only 60. The implicit implication of the finding of the learned Single Bench was that the selection of the candidates was to be done on the basis of the total marks obtained in the competitive written examination, computer proficiency test and interview. 3. The case in brief is that in pursuance to an Employment Notice dated 21.12.2012, for filling up of 13 posts of Lower Division Clerks (‘LDC’) in the Mizoram University and Pachhunga University College, the appellants took part in the selection process which consisted of written examination, computer proficiency test, typing test and interview. In the selection process, the marks obtained by the candidates in the interview was made the deciding factor for selection and recommendation for appointment to the 13 vacant posts of LDC. Accordingly, on the basis of the marks obtained by the appellants in the interview, the appellants were selected and recommended for filling up the 13 vacant posts of LDC vide notification dated 24.6.2013, issued by the Deputy Registrar. Subsequent to the said notification dated 24.6.2013, the appellants were given offer of appointment to the post of LDC vide letters dated 26.6.2013, issued by the Deputy Registrar of the Mizoram University. 4. Thereafter, the appellants received letters dated 15.7.2013, issued by the Assistant Registrar of Mizoram University, stating that appointment to the posts of LDC in Mizoram University and Pachhunga University College was being kept on hold till further orders. 4. Thereafter, the appellants received letters dated 15.7.2013, issued by the Assistant Registrar of Mizoram University, stating that appointment to the posts of LDC in Mizoram University and Pachhunga University College was being kept on hold till further orders. Subsequently, the Registrar of Mizoram University issued a letter dated 21.8.2013 to the appellants informing them that the recruitment to the post of LDC advertised on 21.12.2012, had been cancelled by the 35th meeting of the Mizoram University Executive Council, held on 26.7.2013. Thereafter, one of the appellants also received a letter dated 23.8.2013 issued by the Deputy Registrar of Mizoram University stating that the recommendation for appointment of the appellants to the post of LDC had been cancelled by the 35th Executive Council meeting due to certain aberrations that had occurred during the selection process. 5. The appellant's counsel submits that the resolution cancelling the selection of candidates by the 35th meeting of the Mizoram Executive Council meeting held on 26.7.2013 was based upon a Report dated 16.7.2013, made by a Committee constituted by the Vice Chancellor of the University. He submits that a perusal of the Report dated 16.7.2013 made by the committee shows that the selection of the candidates for other LDC posts, in the selection process that were held in January 2011, October 2011 and June 2013, was based upon the marks obtained in the personal interview only. He, thus, submits that there was no infirmity in the selection of the appellants due to the above, as the selection of the appellants had also been made only on the basis of marks obtained in the personal interview also. He submits that the selection method of candidates for the various other posts, in pursuance to the Employment Notice dated 21.12.2012, was the same as the selection method applied for LDC, i.e., the selection of the candidates for the other posts had also been made on the basis of marks obtained by them in the interview only. He also submits that as per the scheme of examination, a candidate was required to qualify in the written test first to go to the next level of the test. The marks secured by the candidates in the written test and proficiency typing test were only qualifying in nature and could not be counted for the purpose of selection. 6. He also submits that as per the scheme of examination, a candidate was required to qualify in the written test first to go to the next level of the test. The marks secured by the candidates in the written test and proficiency typing test were only qualifying in nature and could not be counted for the purpose of selection. 6. The appellant's counsel submits that the respondents did not issue any notice or provide any opportunity of hearing to the appellants before their selection and recommendation as LDC were cancelled. He also submits that the impugned orders passed by the Mizoram University authorities vide letters dated 15.7.2013, 21.8.2013 and 23.8.2013 are sans any reasons and they should be set aside. In this regard, he has relied upon the judgment of the Apex Court in the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. Shukla and Brothers, (2010) 4 SCC 785 and in the matter of Indu Bhushan Dwivedi v. State of Jharkhand, (2010) 11 SCC 278 . 7. The appellant's counsel also submits that the impugned orders show that the selection and recommendation of the appellants for the posts of LDC had been cancelled only on the reason that certain aberrations had occurred during the selection process without specifying the aberrations. He submits that the action of the respondents in cancelling the recommendations on the basis of the impugned letters can be defended only on the basis of the reasons provided in the impugned letters and the same cannot be defended by the respondents by improving its stand in the affidavit, as the said reasons given in the affidavit were not a part of the impugned orders. In this regard, he has relied upon the judgment of the Apex Court in the case of Dipak Babaria v. State of Gujarat, (2014) 3 SCC 502 . 8. The appellant's counsel submits that there is no infirmity with the selection of the appellants, on the basis of marks obtained in the interview only, as the selection process was conducted as per the scheme of examination prescribed in the Employment Notice dated 21.12.2012. 9. He, thus, submits that the absence of notice, not giving any opportunity of hearing to the appellants and absence of reasons in the impugned orders are in violation of the principles of natural justice and is arbitrary. 9. He, thus, submits that the absence of notice, not giving any opportunity of hearing to the appellants and absence of reasons in the impugned orders are in violation of the principles of natural justice and is arbitrary. Accordingly, the impugned orders should be set aside. The appellant's counsel, thus, submits that the respondents should also be directed to appoint the appellants to the posts of LDC on the basis of the selection and recommendation made by the selection committee. 10. The counsel for the respondents submits that there is no infirmity with the reasoning of the Single Judge while interpreting the scheme of examination as laid down in the Employment Notice dated 21.12.2012. He submits that the scheme of examination clearly shows that the selected candidates could not have been selected only on the basis of the interview marks obtained and that too, against the total of 100 marks for interview, which was not in consonance with the scheme of examination, as only 60 marks had been allotted for interview. He also submits that as per the scheme of examination followed by the Mizoram University, and as reflected in the Committee Report dated 16.7.2013, recruitment to the posts of LDC were held in the year 2003, 2005, 2007 and 2008. As per the recruitment of LDC held in the above 4 years, the selection of the candidates was made on the basis of the overall performance (total marks) of the candidates in the written test, computer proficiency and interview. He submits that the selection committee in January 2011, October 2011 and June 2013 had selected candidate only on the basis of the marks obtained in the personal interview, which was not as per the scheme of examination being applied by the respondents. Accordingly, a wrong was sought to be corrected and accordingly, the selection and recommendation of the appellants to the posts of LDC had to be cancelled. 11. Mr. Aldrin Lallawmzuala, counsel for the respondents submits that the Mizoram University Cadre Recruitment Rules, (Non-teaching), 2013, hereinafter referred to as the 2013 Rules came into force only in the year 2013. Accordingly, a wrong was sought to be corrected and accordingly, the selection and recommendation of the appellants to the posts of LDC had to be cancelled. 11. Mr. Aldrin Lallawmzuala, counsel for the respondents submits that the Mizoram University Cadre Recruitment Rules, (Non-teaching), 2013, hereinafter referred to as the 2013 Rules came into force only in the year 2013. However, the draft 2013 Rules was provisionally applied while making the Employment Notice dated 21.12.2012 and accordingly, as per the scheme of examination for LDC in the above Rules, all the marks obtained in the written examination, Computer Proficiency and Interview have to be added for selecting a candidate. 12. We have heard the learned counsels for the parties. A perusal of the impugned letters issued by the respondent shows that the cancellation of the selection process of LDCs has been made by the 35th Executive Council, on the basis of the Committee Report dated 16.7.2013. The report states that the Employment Notice dated 21.12.2012 did not indicate the scheme of examination and the candidates were given the scheme of the exam separately, which appeared to be an extract from the Mizoram University Recruitment Rules, 2012. On calling for the Mizoram University Recruitment Rules, 2012, the respondents counsel has produced the Mizoram University Cadre Recruitment Rules (Non-teaching), 2013, which came into force in the year 2013, though the draft rules were purportedly in existence in the year 2012. The scheme of the exam for LDCs given in the Mizoram University Cadre Recruitment Rules (Non-teaching), 2013, states that the sum total of marks obtained by the candidates in all of the examinations put together will be the basis for selecting the successful candidates. However, the said Rules was not applicable at the time of the issuance of the Employment Notice dated 21.12.2012. It is, however, not disputed that all the candidates took part in the selection process as per the scheme of exam, which was a part of the Employment Notice dated 21.12.2012, which required the candidates to undergo a written test, computer proficiency test and typing test and interview. 13. Clause (vii) of the Employment Notice dated 21.12.2012 states as follows: “(vii) The prescribed qualifying/pass marks in written examinations are the minimum and merely getting the same does not entitle candidates to be called for further examination/personal interview. 13. Clause (vii) of the Employment Notice dated 21.12.2012 states as follows: “(vii) The prescribed qualifying/pass marks in written examinations are the minimum and merely getting the same does not entitle candidates to be called for further examination/personal interview. In the event of number of candidates getting qualifying/pass marks being large with respect to the number of vacant posts, the University may resort to setting cut-off marks higher than the minimum qualifying/pass marks.” 14. The scheme of examination for direct recruitment of LDC, which was given separately in pursuance to the Employment Notice and paragraph B and C of the Employment Notice states as follows: “LOWER DIVISION CLERK DIRECT RECRUITMENT EXAMINATION SCHEME OF EXAMINATION : The examination will consist of a Competitive Written Examination (Maximum Marks 200), Computer Proficiency Test (Maximum Marks 50) and Typing Test on Computer (Qualifying nature) and Interview (Maximum Marks 60). A. SCHEME OF THE WRITTEN EXAMINATION AND SYLLABUS The written examination will consist of One Objective Type Paper as shown below: Part Subject Maximum Marks Minimum Qualifying Marks Duration for General Candidates Duration for VH candidates I General Awareness 100 II Quantitative Aptitude 50 80 2 hours 30 minutes 3 hours III English Language 50 Notes: 1. The University may specify cut-off qualifying marks higher than the minimum qualifying marks based on the number of vacant posts and the number of candidates qualified as per the minimum standard. 2. The University may reduce the minimum qualifying marks to fill up the reserved post if there are no adequate candidates from the reserved category qualified as per the normal standard.” Para B and C of the Employment Notice “B. COMPUTER PROFICIENCY TEST AND TYPING TEST: Computer Proficiency Test and Typing Test will be conducted for those candidates who secure at least the minimum qualifying marks in the Written Examination. However, the University may reduce the qualifying standard to fill up post reserved for various categories if there are no adequate candidates from the reserved category for which the post is reserved. Typing Test: The Typing Test is of qualifying nature. It will be conducted in English to be administered on the Computer using Microsoft Word. The speed requirement is 35 wpm, 35 wpm corresponds to 10500 key depressions per hour. The speed will be adjudged on the accuracy of typing on the Computer of a given text passage in 10 minutes. Typing Test: The Typing Test is of qualifying nature. It will be conducted in English to be administered on the Computer using Microsoft Word. The speed requirement is 35 wpm, 35 wpm corresponds to 10500 key depressions per hour. The speed will be adjudged on the accuracy of typing on the Computer of a given text passage in 10 minutes. Visually Handicapped candidates (with 40% disability and above) will be allowed 30 minutes. Passage Dictators will be provided to each of VH candidates for the Typewriting test. The Passage Dictators will read out the passage to the VH candidates within the allotted time period. Computer Proficiency Test: Candidates' proficiency with Microsoft Office in everyday office work will be tested, as shown below: Subject/Test Maximum Marks Minimum Qualifying Marks Duration for General Candidates Duration for VH Candidates Computer Proficiency Test 50 20 45 minutes 1 hour C. Interview : Candidates who qualify in the Computer Proficiency Test and Typing Test will be called for Interview. However, the University may reduce the qualifying standard to fill up post reserved for various categories, if there are no adequate candidates from the reserved category for which the post is reserved.” 15. On perusal of the above quoted clauses of the Employment Notice dated 21.12.2012, we find that they do not specify that selections would be made only on the basis of the marks obtained in the interview. In the case of Praveen Singh v. State of Punjab, (2000) 8 SCC 633 , the Apex Court had to decide whether the marks secured in the written test would have to be added to the marks secured in the viva voce test for selection of candidates and whether selection could have been made only on the basis of the marks obtained in the viva voce test. In the above case, the extract of para 5 states as follows: “In Appendix B, the posts of Block Development and Panchayat Officers appear at Item 20 and the qualifications mentioned therein are as below: ‘(i) graduate of a recognized university; preference to graduate in Agriculture: (ii) knowledge of Punjabi language up to matriculation or equivalent standard: (iii) candidates will be required to qualify the following written tests at the time of recruitment: (i) General Knowledge 100 marks (ii) General English/Essay of B.A. standard 100 marks (iii) Community Development, Panchayati Raj and Agriculture Development 100 marks (iv) Punjabi language test of matriculation Standard 50 marks (v) Viva Voice 100 marks The qualifying standard in the test will be 33% pass marks in each paper an 45 per cent in the aggregate.” The Apex Court in the above case at paras 11 to 13 has also stated as follows: “11. A close look at the qualification as prescribed and the information-sheet, however, in our view would depict otherwise. The qualifications prescribe that the candidates will be required to qualify for the following written test at the time of recruitment and the qualification standard in the test has been fixed to be at 33% pass marks in each paper and 45%, however, in the aggregate (emphasised) and para 4 of the information-sheet, as above, in no uncertain term records that no candidate shall be eligible to appear in the viva voce test unless he obtains 33% marks in each paper and 45% marks in the aggregate. 12. Reading the two requirements as above, in our view question of having the written test written off in the matter of selection does not and cannot arise. Had it been the intent of the Service Commission, then and in that event question of there being a totality of marks would not have been included therein and together with the specified marks for viva voce tests, would not have been there. Neither would there have been any requirement of qualifying pass marks nor would there have been any aggregate marks as noticed above. 13. Neither would there have been any requirement of qualifying pass marks nor would there have been any aggregate marks as noticed above. 13. Further, in the event, the interview was the sole criteria and the written test being treated as qualifying test, the Public Service Commission ought to have clearly stated that upon completion of the written elimination test, selection would be made on the basis of the viva voce test only as is available in the decision of Ashok v. State of Karnataka. Be it noted that there is always a room for suspicion for the common appointments if the oral interview is taken up as the only criteria.” Thus, in the case of Praveen Singh (supra), the facts of which are similar to the present case, the Apex Court has held that just because one has to qualify in the written test does not mean that marks obtained in the written test can be written off in the matter of selection. The Apex Court also held that if selection was to be made solely on the basis of interview and written test was only of a qualifying nature, the same has to be clearly stated by the authorities. The only difference in facts between this case and in Praveen Singh (supra) is that in this case there are additional tests to be done. 16. In the present case, a perusal of the scheme of examination, along with clause B, the same clearly implies that selection would have to be made on the basis of total marks secured in the competitive written examination, computer proficiency test and interview. Clause B states that typing test is a qualifying nature. There is no clause in the Employment Notice which states that the competitive written examination or the computer proficiency test is of a qualifying nature. We do not see any provision and neither can we read into any clause of the Employment Notice, that the marks obtained in the written examination and computer proficiency test should not be taken into account for selecting the candidates. The Employment Notice nowhere states that selection would be made only on the basis of the interview as stipulated in the decision of the Apex Court in Praveen Singh (supra). The Employment Notice nowhere states that selection would be made only on the basis of the interview as stipulated in the decision of the Apex Court in Praveen Singh (supra). Accordingly, we are of the view that the marks secured in the competitive written examination and computer proficiency test have to be taken into consideration along with the marks secured in the interview for selection of the candidates. 17. The scheme of examination having clearly laid down the fact that competitive written examination, computer proficiency test and interview would carry marks, the selection of candidates only on the basis of the marks secured in the interview is not only arbitrary but there is also a likelihood of favouritism and biasness creeping into the selection process. 18. In the case of Union Territory of Chandigarh v. Dilbagh Singh, (1993) 1 SCC 154 , the Apex Court has held at para 12 as follows: “12. If we have regard to the above enunciation that a candidate selected for appointment to a civil post, does not acquire an indefeasible right to be appointed in such post in the absence of any specific rule entitling him for such appointment and he could be aggrieved by his non-appointment only when the Administration does so either arbitrarily or for no bona fide reasons, it follows as a necessary concomitant that such candidate even if has a legitimate expectation of being appointed in such posts due to his name finding a place in the select list of candidates, cannot claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily.” In view of the fact that the appellants have not joined the post of LDC and as there is no indefeasible right to be appointed to the posts, no vested right of the appellants have been violated. Having said that, the respondents have to act bona fide and not arbitrarily in not going through with the selection process. In the present case, the respondents having correctly decided that the scheme of the exams required counting of the total marks and not only the interview marks, this court finds that the selection process was not proper and was arbitrary. Accordingly, we do not find any violation of the appellants rights in not issuing notice to the appellants, prior to cancelling the selection process for LDCs. Accordingly, we do not find any violation of the appellants rights in not issuing notice to the appellants, prior to cancelling the selection process for LDCs. Thus, we find that the cases cited by the appellant's counsel is not applicable to the case in hand. 19. With respect to the submissions made by the appellant's counsel that the respondents could not have bettered their explanations beyond the reasons given in the impugned three letters, this court does not dispute the ratio of the case laid down in Dipak Babaria (supra). The impugned letters having clearly stated that the cancellation of the selection of LDCs was made by the 35th Meeting of the Executive Council, which was in turn made on the basis of the Report dated 16.7.2013, we find that there has been no violation of the law laid down by the Apex Court. 20. The selection made by the respondents in the earlier three selection proceedings in 2011 and 2013 may have been done on the basis of marks obtained in the interview only. However, those selection processes cannot be made the basis for justifying the present selection process, as we find that the scheme of the exams held in pursuant to the Employment Notice dated 21.12.2012, had to be decided on the basis of the totality of marks secured in the different examinations. Selections for filling up of different posts may also have been made on the basis of interview marks only, in pursuance to the Employment Notice dated 21.12.2012. However, the mere fact that the authority has passed a particular order in the case of another similarly situated person cannot be a ground for issuing a writ in favour of the appellants, on the plea of discrimination, as we cannot allow an illegality to be perpetuated. The said law has been laid down by the Apex Court in Chandigarh Administration v. Jagjit Singh, (1995) 1 SCC 745 . Further, no challenge has been made to the selection of candidates to the other posts, other than the posts of LDC, made in pursuant to the Employment Notice dated 21.12.2012. Thus, the decision made here will apply only to the facts of this case and will not be used in respect of the other appointments already made, unless a challenge to the same is already subsisting in the courts, as on date. 21. Thus, the decision made here will apply only to the facts of this case and will not be used in respect of the other appointments already made, unless a challenge to the same is already subsisting in the courts, as on date. 21. In view of the reasons stated above, we do not find any infirmity with the impugned judgment and order passed by the learned Single Judge. The writ appeal is accordingly dismissed.