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Gauhati High Court · body

2018 DIGILAW 157 (GAU)

Lily Ndang v. State of Nagaland

2018-01-29

L.S.JAMIR

body2018
ORDER : 1. Heard Mr. Taka Masa, learned senior counsel assisted by Mr. Arenlong, learned counsel for the petitioners. Also heard Ms. V. Suokhrie, learned Additional Senior Government Advocate appearing for all the State respondents. 2. Mr. Taka Masa, learned senior counsel for the petitioners submits that the petitioners are educated unemployed youths and on learning from reliable sources that there are vacant posts of LDA-cum-Computer Assistant and Storekeeper in the Department of Youth Resources and Sports have submitted their applications. Thereafter, the Director, Directorate of Youth Resource and Sports/respondent No. 3 issued a Notification dated Nil informing all applicants who have applied for the post of LDA-cum-Computer Assistant and Storekeeper that a Departmental Examination will be held on 16.5.2017. The applicants were also directed to produce all necessary documents in original. He submits that there were 96 applicants for 6 posts of LDA-cum-Computer Assistant and 9 applicants for one post of Storekeeper. The petitioner Nos. 1 to 6 had applied for the post of LDA-cum-Computer Assistant and the petitioner No. 7 applied for the post of Storekeeper. All the petitioners have participated in the Departmental Examination and finally, the Interview Board selected and recommended the petitioner Nos. 1 to 6 for appointment to the post of LDA-cum-Computer Assistant and the petitioner No. 7 for appointment to the post of Storekeeper. 3. Learned senior counsel for the petitioners submit that the Department of Personnel and Administrative Reforms had been issuing administrative instructions from time-to-time laying down the procedure for filling up of Grade III and Grade IV post in the Departments. By a Notification dated 7.12.2009, issued by the Chief Secretary to the Government of Nagaland, the State Government had reconstituted the Departmental Selection Board for recruitment of all Grade III posts which are outside the preview of the NPSC under various Departments. By another Office Memorandum dated 4.6.2016, the State Government laid down the provisions for recruitment to Grade III and Grade IV posts in the District Offices. Thereafter, by another Office Memorandum dated 7.12.2016, the State Government laid down the procedures for filling up of Grade III and Grade IV posts under the State Government including the District Offices. By another Office Memorandum dated 4.6.2016, the State Government laid down the provisions for recruitment to Grade III and Grade IV posts in the District Offices. Thereafter, by another Office Memorandum dated 7.12.2016, the State Government laid down the procedures for filling up of Grade III and Grade IV posts under the State Government including the District Offices. All direct recruitment vacancies in Grade III posts which are outside the preview of NPSC as well as in Grade IV posts in a Department including such vacancies in the District Offices of that Department shall be filled up based on recommendation of Departmental Screening Committee (except Police Department). 4. Learned senior counsel for the petitioner submits that while the petitioners were awaiting for employment in terms of the recommendation made by the Recruitment Board after conducting Departmental Examination for the post of LDA-cum-Computer Assistant and Storekeeper, the Under Secretary to the Government of Nagaland, Department of Youth Resources and Sports by a letter dated 7.11.2017, wrote to the respondent No. 3 directing to declare the Selection Committee recommendation and advertisement, if any, be declared null and void and to re-ad vertise and re-conduct the recruitment as per the P&AR Notification dated 7.12.2016. In the said letter, it was stated that the P&AR Department has examined the case in consultation with the Justice and Law Department and had observed that the Department had failed to comply with the reservation policy of the State Government in respect of 6 Tribes of Eastern Nagaland and that the Department had also failed to advertise the vacancies for the purpose of open recruitment. Further observation was made in the letter dated 6.11.2017 that the representatives deputed by the P&AR Department had refused to be involved on the ground that the latest guidelines of the Government were not followed. Thereafter, by another letter dated 13.11.2017 written by the Under Secretary to the Government of Nagaland, Department of Youth Resources and Sports and addressed to the respondent No. 3 conveyed that the recommendation of the Selection Board be declared null and void. The respondent No. 3 had thereafter, issued an advertisement dated 18.11.2017 inviting application for 6 posts of LDA-cum-Computer Assistant and 1 post of Storekeeper in the District Establishment under the Directorate of Youth Resources and Sports, Nagaland, Kohima. The respondent No. 3 had thereafter, issued an advertisement dated 18.11.2017 inviting application for 6 posts of LDA-cum-Computer Assistant and 1 post of Storekeeper in the District Establishment under the Directorate of Youth Resources and Sports, Nagaland, Kohima. The petitioners, on coming to know about the advertisement dated 18.11.2017 were highly aggrieved and, therefore, have submitted a joint representation dated 4.12.2017 addressed to the respondent Nos. 1, 2 and 3 against the decision of the official respondents to declare the selection process null and void as well as against the advertisement dated 18.11.2017. However, the respondents have ignored the said representation made by the petitioners. 5. Learned senior counsel for the petitioners submits that applications were made from the open market and, therefore, the issue of non-advertisement of the posts, as taken by the Government is a non-issue. Further, it is submitted that the Office Memorandum dated 7.12.2016 which holds the field till date, is silent about any reservation. It is also submitted that in the advertisement dated 18.11.2017, there is no mention of any reservation nor does the counter-affidavit of the State respondents says anything about the reservation policy of the Government as highlighted in the impugned letter dated 7.11.2017. It is the further submission of the learned senior counsel for the petitioners that clauses 2 and 3 of the Office Memorandum dated 7.12.2016 is relevant to the instant case in hand, and a reading of the same would clearly indicate that there was no violation of the same. The grounds taken by the State respondents in the impugned letter dated 7.11.2017 that the representatives of the P&AR had refused to be involved on the ground that the latest guidelines of the Government were not followed is totally misleading inasmuch as, there was no violation of any of the criteria laid down in the Office Memorandum dated 17.12.2016 which holds the field till date with regard to direct recruitment in Grade III and Grade IV posts which are outside the preview of the NPSC. As such, the non-representation of P&AR representatives was totally misconceived and, therefore, is not fatal to the case of the petitioners. As such, the non-representation of P&AR representatives was totally misconceived and, therefore, is not fatal to the case of the petitioners. Learned senior counsel also submits that the conduct of Departmental Examination by the Recruitment Board for the post of LDA-cum-Computer Assistant and Storekeeper held op 16.5.2017 was done only after the approval of the Government and, therefore, after giving approval by the Government to proceed with the Departmental Examination, the stand taken by the State respondents is totally arbitrary and unreasonable. Further, in the impugned rejection letter dated 13.11.2017, no reason has been given for declaring the recommendation of the Selection Committee to be null and void. In the absence of any reasons, the respondents could not have proceeded to issue the advertisement dated 18.11.2017 and, therefore, the said advertisement deserves to be quashed and set aside and direct the State respondents to appoint the petitioners in terms of the recommendation made by the Recruitment Board in its meeting held on 16.5.2017. Learned senior counsel for the petitioners has also produced Office Memoranda dated 15.1.2016 and 29.12.2017 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training on the subject of discontinuation of interviews at Junior Level Posts in the Government of India to highlight that the Central Government had already taken a decision to discontinue interview for recruitment for all Group ‘O’ and Group ‘D’ (which are now reclassified as Group ‘C’) post and for non-gazetted posts of Group ‘B’ category and all such equivalent posts. Therefore, taking the new policy of the Government of India for not conducting interview in Group C and Group-D posts, the non-representation of the P&AR representatives is also not fatal. Learned senior counsel for the petitioners has placed reliance in the cases of M.P. State Coop. Bank Ltd. Bhopal vs. Nanuram Yadav, (2007) 8 SCC 264 and Kulwinder Pal Singh vs. State of Punjab, (2016) 6 SCC 532 . 6. Ms. V. Suokhrie, learned Additional Senior Government advocate appearing on behalf of all the State respondents, on the other hand, submits that the petitioners along with other applicants have submitted applications for the post of LDA-cum-Computer Assistant and Storekeeper some years back without the said posts being advertised by the Department and which is also admitted by the petitioners in their petition. The written examination, computer test and oral interview conducted on 16.5.2017 was declared to be null and void by the Government for the reasons that there was no open advertisement calling for applications from eligible candidates for the said posts which is violative of article 16 of the Constitution of India. Therefore, merely because the petitioners were selected by the Selection Board, the same does not give any legal right for appointment to the petitioners more particularly, when the recommendation of the Selection Board was not accepted by the Government. In the absence of approval by the Government to the recommendation made by the Recruitment Board particularly, in terms of clause 3 of the Office Memorandum dated 7.12.2016, no legal right accrues to the petitioners. It is also submitted that the 6 posts of LDA-cum-Computer Assistant are meant for the District Offices at Zunheboto, Mon and Kohima and 1 post of Storekeeper for Mokokchung District. After the advertisement dated 18.11.2017 was issued, the Department had received more than 160 applications for the said posts and, therefore, the respondents should be allowed to proceed with the examination in terms of the advertisement dated 18.11.2017 inasmuch as, there was irregularity in the Departmental Examination conducted on 16.5.2017. She also submits that the last date for submission of application in terms of advertisement dated 18.11.2017 was 5.12.2017. However, the respondents are ready to accommodate the petitioners by allowing them to participate in the examination in terms of the advertisement dated 18.11.2017 provided they make their application within a reasonable period of time. As the Departmental Examination that was conducted on 17.5.2017 was in violation of article 16 of the Constitution as well as the Office Memorandum dated 7.2.2016, the respondents may be permitted to proceed with the examination in terms of the advertisement dated 18.11.2017 and that the writ petition be dismissed. 7. I have, considered the submissions forwarded by the learned counsel for the parties. 8. The State respondents, as applicants, have filed IA (C) No. 170(K) of 2017 in the present writ petition for vacation/modification of the interim order dated 8.12.2017 which was passed by this court. 7. I have, considered the submissions forwarded by the learned counsel for the parties. 8. The State respondents, as applicants, have filed IA (C) No. 170(K) of 2017 in the present writ petition for vacation/modification of the interim order dated 8.12.2017 which was passed by this court. After hearing the parties, this court was of the considered opinion that it would be in the interest of justice to dispose of the main writ petition at the earliest considering the urgency involved and, therefore, by order dated 18.12.2017 passed in LA (C) No. 170(K) of 2017, the application of the State respondents for vacation/modification of the interim order dated 8.12.2017 was converted as counter-affidavit to the main writ petition. 9. Learned Additional Senior Government Advocate has also produced the records in original before this court. The same has been perused. 10. A perusal of the records produced by the learned Additional Senior Government Advocate would clearly indicate that the reasons for declaring the Departmental Examination that was held on 16.5.2017 as null and void was due to non-advertisement of the posts and that only a Notification dated 12.5.2017 was issued calling the applicants for a written examination on 16.5.2017 and that there was no reservation for the backward tribes in terms of the Government Notification dated 14.4.2011. Another ground taken was the refusal of the representative of the P&AR Department to be involved in the examination process citing the latest guidelines. 11. This court has considered the Office Memorandum dated 7.12.2016. Therein, the existing policy and procedure for filling up of Grade III and Grade IV post including the District Offices was reviewed and it was decided that the recruitment of Grade III and Grade IV posts shall be made as per the procedures laid in the said Office Memorandum. At clause 2 of the Office Memorandum dated 7.12.2016, it is provided that all direct recruitment vacancies in Grade III post which are outside the preview of the NPSC as well as in Grade IV posts in the Department including such vacancies in the District Offices of that Department shall be based on recommendation of the Departmental Screening Committee (except Police Department). Importantly, clause 3 of the Office Memorandum dated 7.12.2016 provides that appointment shall be made after the recommendation of the Departmental Screening Committee are approved by the Government. 12. Importantly, clause 3 of the Office Memorandum dated 7.12.2016 provides that appointment shall be made after the recommendation of the Departmental Screening Committee are approved by the Government. 12. The Notification dated Nil informing the applicants who had already applied for the post of LDA-cum-Computer Assistant and Storekeeper under the Department of Youth Resource and Sports of the Departmental Examination to be held on 16.5.2017 has been considered by this court. A reading of the same would clearly indicate that invitations were made only to those applicants who had already applied for the post of LDA-cum-Computer Assistant and Storekeeper without any advertisement. This would dearly indicate that there was no advertisement made and that only those who had applied were called for the Departmental Examination. This cannot be termed as inviting applications from the open market inasmuch as, it was only those applicants who had some knowledge about the vacancies had applied for the post. However, other eligible candidates who have no knowledge about the said vacancies were left out. It is already a settled position of law that for any appointment to any post, advertisement is a pre-requisite criteria prior to conduct of any direct recruitment. This has been violated when the first examination was conducted on 16.5.2017. The State respondents had, therefore, rightly taken a decision to declare the recommendation of the Selection Board that was held on 26.5.2017 as null and void. 13. An important point of note is clause 3 of the Office Memorandum dated 17.12.2016 which clearly indicate that any appointment shall be made after the recommendation of the Departmental Screening Committee are approved by the Government. In the present case in hand, the Government has refused to approve the recommendation of the Recruitment Board Examination that was held on 16.5.2017 and had instead taken a decision to declare the same as null and void in terms of the reasons as already highlighted hereinabove. In the absence of any approval by the Government to the recommendation of the Recruitment Board in terms of the examination held on 16.5.2017, no legal right accrues to the petitioners for seeking appointment on the recommendation of such Departmental Examination. 14. The authorities relied upon by the learned senior counsel for the petitioners have also been considered by this court. 14. The authorities relied upon by the learned senior counsel for the petitioners have also been considered by this court. On a consideration of the same, this court is of the considered opinion that the said authorities do not help the petitioners but in fact, the same is against them. In the case of M.P. State Coop. Bank Ltd. Bhopal (supra), the Hon’ble Supreme Court has held as under: “23. In Indian Drugs and Pharmaceuticals Ltd. vs. Workman after referring the decision of Umarani case and other decisions, this court observed that the appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting application from the open market was held to be in flagrant breach of articles 14 and 16 of the Constitution of India. It was further held that the rules of recruitment cannot be relaxed and the court/tribunal cannot direct regularization of temporary appointees de hors the rules, nor can it direct continuation of service of a temporary employee (whether called a casual, ad hoc or daily-rated employee) or payment of regular salaries to them. 24. It is clear that in the matter of public appointment, the following principles are to be followed: (1) The appointments made without following the appropriate procedure under the rules/ government circulars and without advertisement or inviting applications from the open market would amount to breach of articles 14 and 16 of the Constitution of India. (2) Regularization cannot be a mode of appointment. (3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. (4) Those who come by back door should go through that door. (5) No regularization is permissible in Exercise of the statutory power conferred under article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules. (6) The court should not exercise its jurisdiction on misplaced sympathy. (7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection it will neither be possible nor necessary to issue individual show-cause notice to each selected. (7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection it will neither be possible nor necessary to issue individual show-cause notice to each selected. The only way out would be to cancel the whole selection. (8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.” 15. Further, in the case of Kulwinder Pal Singh (supra), the Hon’ble Supreme Court has held as under: “12. In Memoj Manu vs. Union of India, it was held that merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the Government not to fill up the vacancies; however, such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reasons, the court would not issue any Government to fill up the vacancies.........” 16. In the absence of any advertisement in the first examination that was conducted on 16.5.2017, this court is of the considered opinion that the decision of the State respondents to re-advertise the post is reasonable and not arbitrary. 17. In the facts and circumstances of what has been discussed herein above, there is no merit in the writ petition and the same is accordingly dismissed, however, without any costs. 18. Considering that the petitioners were under anticipation of being appointed to the post as recommended by the Recruitment Board in terms of the Examination held on 16.5.2017 and that they have not applied for the post m terms of the advertisement dated 18.11.2017, this court is of the considered opinion that it would be in the interest of justice that the State respondents shall allow the petitioners to appear before the examination in terms of the advertisement dated 18.11.2017 provided they apply for the posts within a period of one week from today and by also condoning their age, if they are found to be overage.