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Gauhati High Court · body

2018 DIGILAW 792 (GAU)

S. Kihola v. State of Nagaland

2018-05-14

SONGKHUPCHUNG SERTO

body2018
JUDGMENT : Songkhupchung Serto, J. 1. This is a petition under Article 226 of the Constitution of India praying for issuance of appropriate writ or order or direction directing the respondents to implement the provisions of Rule 8 (ii) and Rule 18(1) (iii) of the Nagaland Public Service Commission (State Civil and other Services) Recruitment Rules, 2008 (Recruitment Rules, 2008, in short) in the recruitment process of Asstt. Mechanical Engineering (AME) in the department of Works & Housing. Heard Ms. K. Kihki, learned counsel for the petitioner. Also heard Mr. C.T. Jamir, learned senior counsel appearing on behalf of the respondent No. 3 i.e. NPSC and Mr. K. Wotsa, learned Sr. Government Advocate appearing for the State respondent Nos. 1 and 2. 2. The respondent No. 3, vide Advertisement No. 4/2016, dated 19.10.2016 invited applications for filling up several vacancies in posts and services under the Government of Nagaland including one post of Asstt. Mechanical Engineer (AME) (Class-1 Gazetted) (Mechanical Engineering), under Works & Housing Department, 4 posts of Ranger (Class-II Gazetted) under the Department of Forest, Ecology, Environment and Wildlife, one post of Workshop Calculation & Science (Class-III Non-Gazetted) under the Directorate of Employment, Skill Development & Entrepreneurship and one post of Motor Vehicle Inspector (Class-III Non-Gazetted) under the Transport Department. Subsequently, vide Notification No. NPSC/ADVT-1/04, dated 26.10.2016, the respondent No. 3 issued a Corrigendum on the advertisement issued earlier stating that 1 (one) post of Asstt. Mechanical Engineer (AME) (Class-I Gazetted) at Item No. 6 of the advertisement, under Works & Housing Department is reserved for Backward Tribe - Yimchunger. The writ petitioner being eligible for the said 4 posts applied for all of them. Accordingly, she was issued Admit Card to appear for the combined examination conducted for all the 4 posts. On 28.6.2017, vide Notification No. NPSC/C-5/2012, result of the written Combined Technical Services Examination 2016 was declared, however, the petitioner's roll number did not find place among the roll numbers of the persons declared qualified to face viva voce/interview. Accordingly, she was issued Admit Card to appear for the combined examination conducted for all the 4 posts. On 28.6.2017, vide Notification No. NPSC/C-5/2012, result of the written Combined Technical Services Examination 2016 was declared, however, the petitioner's roll number did not find place among the roll numbers of the persons declared qualified to face viva voce/interview. Being aggrieved, the petitioner has come to this court contending and claiming as follows; (i) That for regulating the recruitment examinations conducted by Nagaland Public Service Commission (NPSC) the Government of Nagaland, Department of Personnel & Administrative Reforms (Personnel 'B' Branch) notified a Rule namely, Nagaland Public Service Commission (State Civil & other Services) Recruitment Rules, 2008 under Article 320(3)(b) of the Constitution of India, And at Rule 8 (ii) and Rule 18 (I) (III) of the said Rules it is provided that when Public Service Commission invites applications for filling up a post or posts under the Government of Nagaland, if the number of applicants does not exceed 4 against a particular post, the Commission, without subjecting the candidates to go through written examination should call them straight to face interview and assess their suitability based on the same only. However, in this case though there were only two applicants for the post of Asstt. Mechanical Engineer (AME), the respondent No. 3 had subjected the petitioner and the other candidate to go through written examination, as such, the provisions of Rule 8 and Rule 18 of the Recruitment Rules 2008 have been violated. (ii) That in the case of the posts at Item No. 17 (a) and (b) of the same advertisement i.e. 1 post of Mechanical Supervisor (Class-III Non-Gazetted) under the Printing & Stationery Department, and 3 posts of Foreman (Class-III Non-Gazetted) under the Printing & Stationery Department, the respondent No. 3 without letting the applicants go through the written examination directly called them for interview for assessment of their suitability to the posts by following the provisions of Rule 8 and Rule 18 of the Recruitment Rules, 2008. Therefore, the acts of respondent No. 3 was discriminatory against her (the petitioner) and the other candidate. Further, the learned counsel for the petitioner by referring to paragraphs 10, 15 and 17 of the affidavit-in-opposition filed by the respondent No. 3 submitted that the petitioner's application for the other 3 posts besides the post of Asstt. Therefore, the acts of respondent No. 3 was discriminatory against her (the petitioner) and the other candidate. Further, the learned counsel for the petitioner by referring to paragraphs 10, 15 and 17 of the affidavit-in-opposition filed by the respondent No. 3 submitted that the petitioner's application for the other 3 posts besides the post of Asstt. Mechanical Engineer cannot be the reason for not applying the provisions of Rule 8 and Rule 18 of the Recruitment Rules, 2008 as stated in those paragraphs. To accept such proportion of law would amount to denying the petitioner's right of applying for such other post for which also she was eligible, The learned counsel also submitted that it was the duty of the respondent No. 3 to first scrutinize and determined the number of candidates who applied for each post advertised and thereafter, as per the number of applicants, apply the provisions of Rule 8 and Rule 18, and conduct the recruitment examination accordingly. For failure on their part to carry out such important scrutiny, and act accordingly, the petitioner cannot be made to suffer. The learned counsel, went further and submitted that there was no way the petitioner could come to know the number of candidates who applied for the post of Asstt. Mechanical Engineer since the records of the NPSC was not at her disposal, therefore, she cannot be faulted for not complaining before the examination was conducted. 3. Mr. C.T. Jamir, learned senior counsel appearing for respondent No. 3 admitted that in the affidavit of respondent No. 3 (NPSC) it has been stated that the provisions of Rule 8 and 18 of the Recruitment Rules 2008 could have been applied in the case of Asstt. Mechanical Engineering had not the petitioner applied for the other 3 posts. However, this would not be the right interpretation of the provision of Rule 8 and Rule 18 of the Recruitment Rules, 2008. The provisions of these two rules can be invoked only when no specific syllabus for written examination is provided for the written examination for a particular post. The learned senior counsel further submitted that even though the respondent No. 3 (NPSC) have not given the right interpretation of the two provisions of the said Rules, this Court cannot give a seal of approval to such wrong interpretation. Secondly, Mr. The learned senior counsel further submitted that even though the respondent No. 3 (NPSC) have not given the right interpretation of the two provisions of the said Rules, this Court cannot give a seal of approval to such wrong interpretation. Secondly, Mr. C.T. Jamir, learned senior counsel submitted that since the petitioner, knowing fully well, all about the examination including the pattern to be followed i.e. first written examination, and second viva voce had appeared in the examination without any complain, she is estop from turning around and complaining about the process of the examination that is already completed. In support of his submission, the learned senior counsel referred to the judgment of the Hon'ble Supreme Court passed in the case of Dhananjay Malik & Ors. v. State of Uttar Pradesh & Ors. reported in (2008) 4 SCC 171 , paragraph 9. The contents of the same is reproduced here below:- "9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are stopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process with- out participating in the selection process. This has not been done." 4. The learned senior counsel for the respondent No. 3 (NPSC) further submitted that for candidates belonging to Backward Tribes, minimum qualifying marks prescribed for the written examination in the O.M. dated 18.8.2001, issued by the Government of Nagaland, Department of Personnel and Administrative Reforms has been revised by the NPSC in a meeting held on 15.6.2017, to 20% only. In support of his submission the ld. counsel referred to the extract of the meeting minute of the NPSC in which the minimum qualifying mark was fixed for candidates belonging to Backward Tribes category, the same is reproduce below:- "Extract copy of the Minutes of the Commission Meeting held on 15th June, 2017. Agenda No. 6. CTE 2016 Written Result : The COE apprised the Hon'ble Members that the result of the CTE has been received from the company and the same can be declared. The Commission once again reviewed various Recruitment Rules and Regulation pertaining to technical examination. Agenda No. 6. CTE 2016 Written Result : The COE apprised the Hon'ble Members that the result of the CTE has been received from the company and the same can be declared. The Commission once again reviewed various Recruitment Rules and Regulation pertaining to technical examination. As per the Regulation, a candidate must score minimum 30% of the total written marks in order to be short listed for viva voce. However, past experience shows that for some particular discipline, candidates could not do well and could not secure the minimum prescribed marks of 30%. The Commission therefore, after deliberating the matter decided as follows: a. For merit category the minimum marks to be short listed shall remain as 30% of the total written mark. b. For BT category the minimum marks to be short listed shall be 20% of the total written marks." After having refereed to the above, the learned senior counsel submitted that since the petitioner could not score the minimum required percentage of marks as prescribed in the above minute, she was not selected for the interview. Mr. C.T. Jamir, further submitted that it would appear from the rules framed by the NPSC that written examination is necessary for any post but since the petitioner did not challenged the same, she has to abide by it. Besides, the learned senior counsel also submitted that the petitioner has not challenge the letter dated 12.7.2017 of the respondent No. 3 (NPSC) by which the representation submitted on behalf of the petitioner was rejected, therefore, no relief can be granted in the writ petition. In support of his submission, the learned senior counsel cited the judgment of the Hon'ble Supreme Court in the case of Amarjeet Singh & Ors. v. Devi Ratan & Ors. reported in (2010) 1 SCC 417 at paragraph 28. The contents of paragraph 28 is reproduced herein below:- "28. In the instant case, promotions had been made by two different DPCs held on 19.12.1998 and 22.1.1999. Both the DPCs had made promotions under different Rules on different criterion and their promotions had been made with retrospective effect with different dated notionally. In the writ petition before the High Court, the promotion of the appellants had not been under challenge. The seniority which is consequential to the promotions could not be challenged without challenging the promotions. Both the DPCs had made promotions under different Rules on different criterion and their promotions had been made with retrospective effect with different dated notionally. In the writ petition before the High Court, the promotion of the appellants had not been under challenge. The seniority which is consequential to the promotions could not be challenged without challenging the promotions. Challenging the consequential order without challenging the basic order is not permissible." 5. The learned senior counsel also submitted that relief not claim cannot be granted. The learned senior counsel in support of his submission referred to the prayers given in the writ petition and further submitted that no effective relief can be granted based on the same, therefore, the writ petition is misconceived. To buttress of his submission, the learned senior counsel referred to the decision the Hon'ble Supreme Court in the case of State of Orissa & Anr. v. Mamata Mohanty reported in (2011) 3 SCC 436 at paragraph 55. The contents of paragraph 55 is reproduced herein below:- "55. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issue are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ." On the same point, the learned senior counsel also referred to the decision of the Supreme Court in the case of State of Himachal Pradesh & Ors. v. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sang reported in (2011) 6 SCC 597 at paragraph 17 and 18. The contents of paragraph 17 and 18 are reproduced herein below:- "17. We have already adverted to the relief prayed for by the respondent Association in the said writ petition. Admittedly, there is no prayer for quashing of even earlier Cabinet decision or order of the Government. The contents of paragraph 17 and 18 are reproduced herein below:- "17. We have already adverted to the relief prayed for by the respondent Association in the said writ petition. Admittedly, there is no prayer for quashing of even earlier Cabinet decision or order of the Government. The conclusion of the High Court quashing the Cabinet decision dated 18.7.2009 and as a consequence issuing several directions is unacceptable and contrary to the well established principles. First of all, there was no prayer for quashing of any decision of the State Government much less the subsequent Cabinet decision dated 18.7.2009. If the High Court was interested in going into the said decision that too after reserving the judgment on 3.7.2009, it is but appropriate to reopen the case, permit the petitioner Association to amend the relief portion and afford adequate opportunity to the State to put forth its stand for modifying this "policy" curtailing certain courses under SCVT, Admittedly, the High Court has not resorted to such a recourse and simply quashed the decision of the Cabinet dated 18.7.2009 and issued various directions which are impermissible. 18. As rightly pointed out by Mr. Altaf Ahmed, without any arguments having been heard, without there being any question raised by any party as to the validity of the Cabinet decision dated 18.7.2009 and without the same being in question, or any relief sought for in the writ petition, the High Court has gone into the said decision of the Cabinet having taken place after the judgment was reserved. The decision the Cabinet generally ought not to be interfered with in judicial review so lightly as has been done in the present case. The quashing of the Cabinet decision without analyzing the pros and cons in the manner seeks to restrict the State's constitutional authority and powers to frame policy especially in such vital areas like imparting technical education is not acceptable." 6. Lastly, the learned senior counsel submitted that the provisions of Rule 8 and Rule 18 of Recruitment Rules 2008 has been misunderstood and misconstrued by the respondent No. 3 and the petitioner but that does not mean that such interpretation of the rule should be perpetuated. In support of his submission, the learned senior counsel referred to the decision of the Hon'ble Supreme Court in the case of State of Haryana & Ors. In support of his submission, the learned senior counsel referred to the decision of the Hon'ble Supreme Court in the case of State of Haryana & Ors. v. Ram Kumar Mann reported in (1997) 3 SCC 321 , paragraph 3. The contents of paragraph 3 is reproduced herein below:- "3. The question, therefore, is whether the view taken by the High Court is correct in law. It is seen that the respondent had voluntarily resigned from the service and the resignation was accepted by the Government on 18.5.82. On and from that date, the relationship of employer and the employee between the respondent and the State ceased and thereafter he had no right, whatsoever, either to claim the post or a right to withdraw his resignation which had already become effective by acceptance on 18.5.82. It may be that the Government for their own reasons, had given permission in similar case, to some of the employees mentioned earlier, to withdraw their resignations and had appointed them. The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has on right, whatsoever and cannot be given the relief wrongly given to them, i.e. benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously No. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong order decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong order decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. Under these circumstances, the High Court was clearly wrong in directing reinstatement of the respondent by a mandamus with all consequential benefits." The learned senior counsel also referred to 2 more judgment of the Hon'ble Supreme Court; in the case of Union of India & Anr. v. International Trading Co. & Anr. reported in (2003) 5 SCC 437 , paragraph 13 the contents of which is reproduced herein below:- "(i) 13. what remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be sitting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of article 14 of the Constitution of India (in short the Constitution) cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality." (ii) And second, in the case of State of U.P. & Ors. v. Rajkumar & Ors. reported (2006) 3 SCC 330 , paragraph 15 the contents of which is reproduced herein below:- "15. They have to establish strength of their case on some other basis and not by claiming negative equality." (ii) And second, in the case of State of U.P. & Ors. v. Rajkumar & Ors. reported (2006) 3 SCC 330 , paragraph 15 the contents of which is reproduced herein below:- "15. Even if in some cases appointments have been made by mistake or wrongly that does not confer any right oh another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake." 7. Mr. K. Wotsa, learned Sr. Government Advocate appearing for the State respondents while agreeing with the submissions of Mr. C.T. Jamir, learned senior counsel by and large submitted that the provision of Rule 8 and Rule 18 of the Recruitment Rules, 2008 could have been applied for the post of Asstt. Mechanical Engineer had the petitioner not applied for the other 3 post. 8. In reply, Ms. K. Kikhi, learned counsel appearing for the petitioner submitted that the writ petition is filed after the representation of the petitioner was rejected and the same was informed through letter dated 12.7.2017 of the respondent No. 3 therefore, the arguments of the learned counsel of the respondent No. 3 that since the letter has not been challenged, the writ petition is not maintainable does not seem hold water. 9. In order to regulate the recruitment to various services under the Government of Nagaland, to be conducted by the NPSC, the Governor of Nagaland in exercise of the powers conferred by the proviso to Article 320 (3) (b) of the Constitution of India made the Rules, called Nagaland Public Service Commission (State Civil & other Service) Recruitment Rules, 2008 which shall herein after be referred to as the Rules and the same was notified by the Personnel and Administrative Reforms Department (Personnel 'B' Branch) vide its notification No. PAR-B/4 2007 (NPSC), dated 29.2.2008. The relevant portion of the rules are extracted herebelow:- "8. Direct recruitment will be made in the following manner:- (ii) Recruitment by interview only (without written examination) will be conducted for recruitment into the service for which no specific syllabi for written examination have been adopted or when the number of applicants for a particular post is 4 + x or less where x is the number of vacancies advertised. Direct recruitment will be made in the following manner:- (ii) Recruitment by interview only (without written examination) will be conducted for recruitment into the service for which no specific syllabi for written examination have been adopted or when the number of applicants for a particular post is 4 + x or less where x is the number of vacancies advertised. 18(1) Selection by interview only will be resorted to in the following cases:- (i) When the Recruitment Rules for such posts provide selection by interview only. (ii) When there are no specific syllabi prescribed for conducting written examinations; or when it is not practicable to conduct practical and/or proficiency tests. (iii) When the number of applicants for a particular category of posts is 4+ x, or less where x is the number of vacancies advertised." 10. On careful perusal of the extracted provisions of the Rules what one could understand is that when no specific syllabi for written examination have been adopted for recruitment to a particular post no written examination need to be held but only interview will be held to determine the personality and suitability of the candidates for recruitment to the post. Further the words, tune and tenure of clause (ii) of Rule 8 and of (iii) of Rule 18 clause 1 of the Rules makes it amply clear that even when a specific syllabi for written examination have been adopted, if the number of candidates for a particular post is 4 or less in that case also no written examination need be held, and in such event candidates should be made to face interview straight away. The word 'will' used in (ii) of Rule 8 and (I) of Rule 18 also makes it clear that the intention of the rule makers is to make the application of the two Rules while conducting recruitment for any post by the NPSC mandatory. By the reading of the affidavit-in-opposition filed by the respondent No. 3 i.e. NPSC and the letter dated 12.7.2017 of NPSC bearing No. NPSC/ESTT-12/99 (Annexure-I of the writ petition) addressed to. Mr. By the reading of the affidavit-in-opposition filed by the respondent No. 3 i.e. NPSC and the letter dated 12.7.2017 of NPSC bearing No. NPSC/ESTT-12/99 (Annexure-I of the writ petition) addressed to. Mr. H. Mukam, Advocate who was the counsel for the petitioners in reply to his letter to the Controller of Examination of NPSC dated 3.7.2017 (Annexure-H to the writ petition) particularly at paragraph 4 of the same shows that the respondent No. 3 also holds the same view in regard to the interpretation of the two provisions of the Rules. The same is also apparent from the affidavit of the respondent No. 3 wherein it is stated that had not the petitioner and the other candidate applied for the other posts, written examination in respect of the post of Asstt. Mechanical Engineer would not have been held. In view of the above, I am unable to agree with the submissions of the learned senior counsel for the petitioner Mr. C.T. Jamir that it is only when specific syllabi have not been adopted for written examination for recruitment to a particular post that written examination need not be held. This submission of the learned counsel also amounts to blowing hot and cold at the same time because it is in contradiction to what has been stated in the affidavit of the respondent No. 3 (NPSC). Therefore it cannot be accepted. 11. There is no dispute on the fact that specific syllabi for written examination had been adopted for combine written examination of the post of Asstt. Mechanical Engineer (Class-1 Gazetted) under Works & Housing Department, 4 post of Ranger (Class-II Gazetted) under the Department of Forest, Ecology, Environment and Wildlife, 1 post of Workshop Calculation & Science (Class-III Non-Gazetted) under the Directorate of Employment, Skill Development & Entrepreneurship and 1 post of Motor Vehicle Inspector (Class-III Non Gazetted) under the Transport Department Further, there is also no dispute on the fact that only two candidates applied from Yimchunger tribe for whom the post of Asstt. Mechanical Engineer was reserved. Mechanical Engineer was reserved. Taking into consideration, these admitted facts, particularly the later one, and the provisions of Rule 8 (ii) and Rule 8 (I) of the recruitment Rules of 2008 the only conclusion that can be drawn is that the respondent No. 3 i.e. NPSC should have excluded the written examination and let the 2 candidates from the Yimchunger tribe appear in the interview straight away and test their personality and suitability for recruitment to the post of Asst. Mechanical Engineer. 12. The contention of the respondent No. 3 as given in the affidavit-in-opposition which is supported by the learned Sr. Government Advocate that is, had not the petitioner and the other candidate applied for the other posts besides the post of Asstt. Mechanical Engineer, no written examination for the post of Asstt. Mechanical Engineer would have been conducted, does not sound convincing. Because, before the written examination was conducted, it was incumbent upon the Commission (respondent No. 3) to scrutinise and segregate those posts for which specific syllabi for written examination have been adopted from those post/services for which no specific syllabi for written examination have been adopted, and also segregate those post and services for which written examination specific syllabi have been adopted and the number of applicants were more than 4, from those post and services for which written examination specific syllabi had been adopted but the applicants were lesser or not more than 4. And thereafter, by applying the provisions of Rule 8(ii) and Rule 18(1) (iii) conduct the written examination for those post for which it was necessary and exempt written examination for those post where it was not necessary. But just because a candidate or candidates have applied for more than one post it would not be justified for the authority i.e. the respondent No. 3 (NPSC) to conduct written examination in violation of the mandatory provisions of the Rules. 13. As stated in the above paragraph, it is the duty of the respondent No. 3 (NPSC) to have undertaken such exercises and inform the candidates accordingly. Since that has not been done, the petitioner and other candidate would have no other way to know how many candidates had applied for the post of Asstt. Mechanical Engineer. Therefore, the petitioner cannot be made to suffer the consequence of having appeared the written examination. Since that has not been done, the petitioner and other candidate would have no other way to know how many candidates had applied for the post of Asstt. Mechanical Engineer. Therefore, the petitioner cannot be made to suffer the consequence of having appeared the written examination. In other words she cannot be barred from challenging the conduct of the written examination by respondent No. 3 (NPSC). The principle of law enunciated by the Hon'ble Supreme Court cited by the learned senior counsel appearing for the respondent No. 3 therefore, would not apply in this case. 14. The contention of the learned senior counsel appearing for the respondent No. 3 that since the petitioner did not challenge the letter dated 12.7.2017 by which the prayer of the petitioner for reviewing the selection process for the post of Asstt. Mechanical Engineer have been rejected, no relief can be granted in the writ petition, therefore, the same is misconceived and deserves to be rejected is in my opinion a misconception because the cause of action for the writ petition is not the letter itself but the act of the respondent No. 3 in conducting the written examination for the post of Asstt. Mechanical Engineer. Therefore, merely because no specific mention is made in the prayer for setting and quashing aside that letter cannot be a reason for dismissing the writ petition. Further, the contention of the respondent No. 3 that the petitioner could not qualify the written examination even with the minimum prescribed percentage of marks therefore, she was not or could not have been called for interview is no longer relevant because of the conclusion drawn that no written examination should have been held for the post of Asstt. Mechanical Engineer since only two candidates from Yimchunger tribe applied for the same in view of the provision of Rules 8(iii) and Rule 18(1) (ii) of the Rules. 15. Lastly, the submission of the learned counsel for the petitioner that for the post at item No. 17 (a) and (b) of the same advertisement i.e one post of mechanical Supervisor (Class-III Non-Gazetted) under the Printing & Stationery Department and 3 post of Foreman (Class-III Non-Gazetted) under the same Department, by applying the provision of Rule 8 (II) and Rule 18(1) of the Rule, no written examination was conducted by the respondent No. 3 is neither denied nor refuted by the respondent No. 3. Therefore, the same is accepted to be true. This shows that the same yardstick was not applied or use in the case of the post of Asstt. Mechanical Engineer, therefore, it can be concluded that the act of the respondent No. 3 had been clearly discriminatory. In view of the above discussions and conclusions this court is of the view that the respondent No. 3 has violated the provisions of Rule 8(ii) and Ruled 18(1) of the Nagaland Public Service Commission (State Civil and other Services) recruitment Rules, 2008 while conducting the combine examination for recruitment to one post of Asstt. Mechanical Engineer (AME) (Class-1 Gazetted) (Mechanical Engineering), under Works & Housing Department, 4 posts of Ranger (Class-II Gazetted) under the Department of Forest, Ecology, Environment and Wildlife, one post of Workshop Calculation & Science (Class-III Non-Gazetted) under the Directorate of Employment, Skill Development & Entrepreneurship and One post of Motor Vehicle Inspector (Class-III Non-Gazetted) under the Transport Department Therefore, the process and the result of the written examination has to be quashed and set aside in respect of the post of Asstt. Mechanical Engineer in the department of Works and Housing and as in consequence the respondent No. 3 has also to be directed to hold interview for the two candidates as per the provisions of the recruitment Rules of 2008 to test their suitability for recruitment to the post. As such, the process of the written examination held for the post of Asstt. Mechanical Engineer and the other 3 services by the respondent No. 3 (NPSC) along with the result are quashed and set aside in respect of Asstt. Mechanical Engineer only, and the respondent No. 3 (NPSC) is directed to conduct interview for the same within a period of 3 months from the date of receipt of a certified copy of this order.