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Manipur High Court · body

2019 DIGILAW 25 (MAN)

Wahengbam Suraj Singh v. State of Manipur

2019-04-16

KH.NOBIN SINGH

body2019
JUDGMENT [1] Heard Shri Th. Khagemba, learned Advocate appearing for the petitioner; Shri H.S. Paonam, learned Sr. Advocate assisted by Shri A. Arunkumar, learned Advocate appearing for the private respondents and Shri Niranjan Sanasam, learned Government Advocate appearing for the State respondents. [2] By the instant writ petition, the petitioner has prayed for issuing a writ of certiorari or any other appropriate writ to quash and set aside the order dated 03-12-2016 issued by the Director, Information Public Relation, Government of Manipur so far as the respondent Nos. 3 and 5 are concerned and also to issue a writ of mandamus or any other appropriate writ to direct the respondents to consider the case of the petitioner for appointment to the post of Assistant Cinema Operator. [3.1] Facts and circumstances as narrated in the writ petition are, that the respondent No.2, the Director, Information and Public Relations, Government of Manipur issued a requisition for appointment in respect of 40 different posts including 3 post of Assistant Cinema Operators vide letter dated 08-12-2014 addressed to the Additional Director, Directorate of Employment Exchange, Government of Manipur, followed by another letter dated 10-12-2014 requesting it to submit a list of eligible candidates on or before 30-12-2014. In reply thereto, the Directorate of Employment Exchange, Government of Manipur issued a notification for the recruitment of the 40 posts. The petitioner being eligible, applied for the post of Assistant Cinema Operator through the Employment Exchange, Imphal West and an admit card thereof was issued to him by the respondent No. 2 for viva-voce on 10-02-2015 but the viva-voce was not held, as it had been postponed indefinitely. One of the essential qualifications as prescribed in the relevant recruitment rules, is that a candidate must hold the Cinematograph Operator Licence. [3.2] The respondent No.2 wrote another letter dated 28-07-2016 to the Additional Director, Directorate of Employment Exchange, Government of Manipur to revalidate the candidates already sponsored pursuant to the requisition vide its letter dated 08-12-2014. On 28-09-2016 the respondent No. 2 issued a notification notifying to all the candidates who have been sponsored by the Employment Exchanges of Manipur for different posts, to collect the prescribed application forms on payment of requisite fees and that the application forms, duly filled up along with the relevant documents, should reach the office of the respondent No. 2 on or before 10-10-2016. It was also made clear that those candidates who had already obtained admit cards, need not submit fresh application forms. [3.3] On 18-10-2016, the respondent No.2 issued a notification informing the candidates including the petitioner that a common written would be held on 23-10-2016 in the subjects- General Knowledge (50 marks) and General English (50 marks) at Modern College, Imphal. The petitioner appeared in the said test with the hope that he would be successful therein. Without declaring the result of the common written test, the viva-voce for the post of Assistant Cinema Operator was held on 25-10-2016 in the office of the respondent No. 2 and the petitioner participated in the said viva-voce. The result of the said recruitment process was declared and an appointment order dated 03-12-2016 was issued by the respondent No.2. Although the petitioner had performed very well, he was not appointed at all. [3.4] Being suspicious about the selection process being undertaken by the respondents, the petitioner consulted one of his counsel who filed an application under the RTI Act for obtaining certain information from the respondent No.2 who furnished it vide letter dated 11-01-2017 along with copies of the documents submitted by the candidates. On perusal of the said documents, the petitioner came to know that the respondent Nos.3 and 5 who are listed at Sl. No.1 and 3 of the appointment order dated 03-12-2016, did not possess the requisite Cinematograph Operator Licence on or before the last date for submission of the application form and even on the date of written test and viva-voce. The said Cinematograph Operator Licenses produced by the respondent Nos. 3 and 5 indicate the dates of their issuance as 04-11-2016 and 13- 10-2016 respectively when the last date for submission of the application form was 10-10-2016 and therefore, the respondent Nos.3 and 5 were not eligible for appointment to the post of Assistant Cinema Operators as they did not possess the requisite qualifications on or before the last date for submission of the application form. Pursuant to another application dated 10-12-2016, filed under the RTI Act, the respondent No.2 furnished information vide its letter dated 06-04-2017 enclosing therewith the copies of the recruitment rules for the post of Assistant Cinema Operator. Pursuant to another application dated 10-12-2016, filed under the RTI Act, the respondent No.2 furnished information vide its letter dated 06-04-2017 enclosing therewith the copies of the recruitment rules for the post of Assistant Cinema Operator. [3.5] Being aggrieved by the appointment order dated 03-12-2016, the instant writ petition has been filed by the petitioner on the inter-alia grounds that since the respondent Nos. 3 and 5 were not eligible on the last date for submission of the application form, their candidatures ought to have been rejected; that the petitioner was deprived of what he rightfully deserved and was penalized it for no fault of his; that the action of the respondents is unreasonable and arbitrary being violative of Article 14 of the Constitution of India. [4] In the affidavit-in-opposition filed on behalf of the respondent No.2, the averments made in the writ petition were denied and in addition thereto, it has been specifically denied that the petitioner performed well in the common written test as well as viva-voce. From the statement of the marks secured by the candidates in the written test and viva-voce for recruitment to the post of Assistant Cinema Operator, the petitioner secured less mark than that of the respondent Nos.3 and 4. As regards the respondent No. 3, he possessed a Cinematograph Operator Licence issued on 16-12-2013 and although the said licence was valid for three years, a new licence was issued on 04-11-2016 prior to the expiry of the earlier licence. Both the copies of the licenses are in the file of the Department. So far as the respondent No.5 is concerned, he submitted a provisional Cinema Operator Licence dated 10-10-2016 due to non-availability of Licence Card along with the application form obtained on 13-10-2016 and he was allowed to appear in the DPC on the basis of the application filed by him. An affidavit-in-opposition on behalf of the respondent Nos.3 and 5 also has been filed wherein it has been stated that the petitioner has no locus standi to challenge the appointment of the private respondent No. 5 who is appointed under the ST category. Rest of the affidavit are similar to that of the averments made in the affidavit of respondent No. 2 and therefore, the same are not repeated here for the sake of brevity. Rest of the affidavit are similar to that of the averments made in the affidavit of respondent No. 2 and therefore, the same are not repeated here for the sake of brevity. [5] In his rejoinder affidavit, the petitioner has stated that the respondent No.3, while submitting his application dated 17-10-2016, did not mention about the possession of the earlier licence and had he possessed the licence, he should have mentioned it in the application that he would apply for the renewal of his earlier licence instead of applying for a fresh licence. Similarly, the respondent No.5 submitted his application dated 06-10-2016 for obtaining a Cinematograph Operator Licence stating that he had undergone three years course training as Assistant Cinema Operator under the Firm Asha Cinema, Paona Bazar from February 2008 till 2011. After the erstwhile Electricity Department, Government of Manipur having been unbundled into two State owned companies, the existence of documents namely the certificate dated 20- 10-2016 and the Cinematograph Operator Licence dated 04-11-2016 signed by Shri S. Singhajit Singh, Electrical Inspector, Electricity Department, Government of Manipur, was not possible at all. As regards respondent No.5, the fact that the respondent No.2 did not furnish a copy of the provisional Cinema Licence dated 10-10-2016, in reply to the RTI application, shows that the said document was not in his custody at the time of furnishing the information. Moreover, under the Manipur Cinematograph Rules, 1955, there is no provision for issuance of a provisional Cinematograph Operator Licence with the result that the said provisional Licence dated 10-10-2016 would have been non-est. After the rejoinder affidavit having been filed by the petitioner, the respondent No.3 filed an additional affidavit stating that the petitioner did not possess a valid Cinematograph Operator Licence at the time of submission of his application form on 13-01-2015. Along with the application form, the petitioner submitted a certificate which was issued on 06-09-1995 having validity of three years, from which it is seen that the fee of the certificate was deposited at the Imphal treasury vide challan dated 05-11-2008 which would have expired in the year, 2011. Along with the application form, the petitioner submitted a certificate which was issued on 06-09-1995 having validity of three years, from which it is seen that the fee of the certificate was deposited at the Imphal treasury vide challan dated 05-11-2008 which would have expired in the year, 2011. Moreover, the certificate having full of irregularity apart from the expiry of its validity, cannot be considered to be a valid certificate for the purpose of appointment to the post of Assistant Cinema Operator and therefore, the application of the petitioner ought to have been rejected due to lack of requisite qualifications or valid licence. In the reply affidavit filed by the petitioner, it has been stated that since the original certificate issued in the year 1995 being old and torn, the petitioner asked for issuing a duplicate certificate which was issued in the year 2008. It has been further stated that the certificate was renewed from time to time as indicated in the certificate itself which is a genuine one. [6] From the aforesaid pleadings, the following issues fell for consideration by this court: (a) Whether the respondent Nos.3 5 and the petitioner were holding valid Cinematograph Operator Licenses on the last date for submission of application forms ? (b) Whether the petitioner has any locus standi to question the process of selection after the same having been completed and in particular, the appointment order dated 03-12-2016 having been issued thereafter ? [7] It has been submitted by Shri Th. Khagemba, the learned counsel appearing for the petitioner that the petitioner was holding a valid Cinematograph Operator Licence on the last date for submission of application form but the respondent Nos.3 5 did not have such license and therefore, their candidatures ought to have been rejected by the State Government. The act of the State respondent appointing the respondent Nos.3 5 as the Assistant Cinema Operators is highly unreasonable and illegal. The act of the State respondent appointing the respondent Nos.3 5 as the Assistant Cinema Operators is highly unreasonable and illegal. In support of his contention, reliance has been placed on the decision rendered by the Hon?ble Supreme Court in Ashok Kumar Shonkar v. Union of India, (2007) 4 SCC 54 , wherein the Hon?ble Supreme Court held that the view taken by it in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18 was the authority wherein it was held that the proposition that where applications are called for, prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement/ notification issued/ published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. Similar view is reiterated in Alka Ojha v. Rajasthan Public Service Commission anr., (2011) 9 SCC 438 wherein the Hon?ble Supreme Court held: "15. The question whether the candidate must have the prescribed educational and other qualifications as on the particular date specified in the Rule or the advertisement is no longer res integra. In Bhupinderpal Singh v. State of Punjab this Court referred to the earlier judgments in A.P. Public Service Commission v. B. Sarat Chandra, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, M.V. Nair v. Union of India, Rekha Chaturvedi v. University of Rajasthan, U.P. Public Service Commission v. Alpana and Ashok Kumar Sharma v. Chander Shekhar and approved the following proposition laid down by the Punjab and Haryana High Court: (Bhupinderpal Singh case, SCC p. 268, para 13) "13. ? ? (i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority." 16. The same view was reiterated in M.A. Murthy v. State of Karnataka and Ashok Kumar Sonkar v. Union of India. Therefore, the Full Bench of the High Court rightly held that a candidate who does not possess a driving licence on the last date fixed for submission of the application is not eligible to be considered for selection." [8] On the contrary, it has been submitted by Shri H.S Paonam, the learned counsel appearing for the private respondents that the respondent Nos. 3 5 did possess the valid Cinematograph Operator License on the last date for submission of application forms and moreover, the petitioner has no locus standi to question the selection process after he has participated therein and in particular, the appointment of respondent No.5 who belongs to the scheduled tribe against the seat reserved for it. He has relied upon the decision rendered by the Hon?ble Supreme Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply Drainage Board Employees Assn. ors. (2006) 11 SCC 731 (II), wherein the Hon?ble Supreme Court held: "78. The High Court, in the instant case, was not exercising certiorari jurisdiction. Certiorari jurisdiction can be exercised only at the instance of a person who is qualified to the post and who is a candidate for the post. This Court in Umakant Saran (Dr.) v. State of Bihar held that the appointment cannot be challenged by one who himself is not qualified to be appointed. In Kumari Chitra Ghosh v. Union of India a Constitution Bench of this Court held as under: (SCC p. 234, para 12) "12. The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the nominations made to be reserved seats. In Kumari Chitra Ghosh v. Union of India a Constitution Bench of this Court held as under: (SCC p. 234, para 12) "12. The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the nominations made to be reserved seats. It seems to us that the appellants do not have any right to challenge the nominations made by the Central Government. They do not complete for the reserved seats and have no locus standi in the matter of nomination to such seats. The assumption that if nominations to reserved seats are not in accordance with the rules all such seats have not been properly filled up would be thrown open to the general pool is wholly unfounded." Shri Niranjan Sanasam, the learned Government Advocate has relied upon the decision rendered in State of Maharashtra v. Abhay ors., 1984 (Suppl.) SCC 701. [9] Before adverting to rival contentions on merit, this court deems it appropriate to decide first the issue whether the petitioner has locus standi to challenge the recruitment process and in particular, the appointment of the respondent No.5. It is not in dispute that pursuant to the requisition vide letter dated 28-07-2016 of the respondent No.2, a notification was issued on 28-09-2016 for appointment to the various posts including that of the Assistant Cinema Operator. The petitioner as well as the private respondent applied for it. The written test was held on 23-10-2016 and the viva voce was held on 25-10-2106 and the result thereof was declared on 03-12-2016 and on the same day, the appointment order was issued appointing the private respondents. It is well settled law that a candidate who had participated in the recruitment process, cannot turn around and question it when the result thereof is not palatable to him. In the present case, the petitioner got an application filed through one of his counsel under the RTI Act and after the information being furnished, he, according to him, found that the respondent Nos.3 5 were not eligible for appointment to the post of the Assistant Cinema Operator. This is something which he came to know later. In the present case, the petitioner got an application filed through one of his counsel under the RTI Act and after the information being furnished, he, according to him, found that the respondent Nos.3 5 were not eligible for appointment to the post of the Assistant Cinema Operator. This is something which he came to know later. Since the question relating to eligibility goes to the root of the appointment, he cannot be said to have no locus standi to question the appointment of the respondent No.5 provided the appointment is found prima facie illegal. The answer to this issue is in the affirmative. [10] As per the relevant recruitment rules, the essential qualifications for the post of Assistant Cinema Operator are as under: (i) Class-VIII passed; (ii) Experience in Cinema Operation; (iii) Holder of Operator?s Licence and (iv) Knowledge of Manipuri Language. For the present case, the requisite qualification of holding an operator?s licence is relevant. The rival contention is that both the petitioner and the respondent Nos.3 5 did not have valid cinematograph operator?s license on the last date for submission of application forms. According to the petitioner, both the respondent Nos. 3 5 did not have the valid license for the reason that the dates on which the certificates were issued, were 04-11-2016 and 13-10-2016 respectively, when the last date for submission of application forms was 10-10-2016. In order to substantiate his contention, he has heavily relied upon the condition prescribed in the Notification dated 28-09-2016 with the expression "Filled in application form along with relevant documents should reach the office of the undersigned on or before 3.00 pm of 10th October, 2016". Looking at the dates of issue bearing on the certificates, the copies of which have been filed along with the writ petition, the contention of the petitioner appears to be correct. But in the affidavit of the respondent No.2, it has been stated that the respondent No.3 possessed a licence issued on 16-12-2013 which was valid for three years and before the expiry of the same, a new licence was obtained on 04-11-2016. The copies of both the license are in the relevant file and only a copy of the licence dated 04-11-2016 was furnished in reply to the RTI application, as it was considered proper. A copy of the licence dated 16-12-2013 is filed along with the affidavit-in-opposition. The copies of both the license are in the relevant file and only a copy of the licence dated 04-11-2016 was furnished in reply to the RTI application, as it was considered proper. A copy of the licence dated 16-12-2013 is filed along with the affidavit-in-opposition. It is not clear as to how and when a copy of the licence dated 04-11-2016 was filed by the respondent No.3. Since the validity and correctness of the license dated 16-12-2013 and 04-11-2016 are not the subject matter in issue herein, this court cannot go into it. But the fact remains that both the license are held by the respondent No.3 and therefore, it cannot be said that the respondent No.3 was not eligible for appointment to the post of the Assistant Cinema Operator. So far as the respondent No.5 is concerned, it has been contended by the counsel appearing for the petitioner that the respondent No.5 was not eligible on the last date for submission of application form because the licence produced by him was issued only on 13-10-2016. In this regard, the explanation given by the respondent No.2 in its affidavit, is that along with the application, the respondent No.5 submitted a provisional certificate dated 10-10-2016 due to non-availability of licence card and his licence was produced on 13-10-2016 before the DPC process commenced. Therefore, he was allowed to sit for the written test held on 23-10-2016 and viva voce held on 25-10-2016 wherein he secured highest marks from amongst the candidates belonging to ST category. [11] It has been vehemently submitted by the counsel appearing for the petitioner that there is no provision in the Manipur Cinematograph Rules, 1955 for issuing a provisional licence. He may be right to that extent but it may be noted that a provisional certificate is normally issued by the authority who is empowered to issue the certificate, when it is unable to issue the certificate for some time for certain cogent reasons. In the provisional certificate itself, it has been stated that though the respondent No.5 is qualified to hold the certificate as per the rule, the same cannot be issued for want of licence cards and that it will be issued in a week or two. The certificate was in fact issued on 13-10- 2016 before the common written test was held on 23-10-2016. The certificate was in fact issued on 13-10- 2016 before the common written test was held on 23-10-2016. The respondent No.5 who belongs to ST category, was appointed against the post reserved for them and the petitioner could, in no way, be considered against the post reserved for the ST category, even assuming that the respondent No.5 was found to be ineligible. No other candidate belonging to ST category seems to have any grievance on the appointment of the respondent No.5 and moreover, the issuance of the provisional certificate, at the most, can be said to be irregular for no fault of the respondent No.5. Had the respondent No.5 not been allowed to sit for the test on the ground that it was only a provisional certificate, he would have lost, in his career, the opportunity of being appointed as the Assistant Cinema Operator and on top of that, this is not the case where this court ought to exercise its discretionary jurisdiction for the reason that the recruitment process had already completed without any objection from any angle and the appointment order had been issued two years ago. Interference by this court at this stage without any justifiable reasons will be highly unfair and unreasonable. After the hearing was over, a file pertaining to this case was handed over to this court by the Government Advocate for perusal by this court and on perusal thereof, it is seen that so far as the respondent No.3 is concerned, the certificates dated 16-12-2013 and 04-11-2016 issued in his favour are in the file. In respect of the respondent No.5, the provisional certificate dated 10-10-2016 alleged to have been filed by him, is not there in the file. Similarly, the sheet showing the renewals of the petitioner?s licence filed along with the reply affidavit dated 04-03- 2019 is not available in the file. These are disputed questions of facts which cannot be gone into by this court in view of the observations made hereinabove. Moreover, there is hardly any difference between the petitioner and the respondent No.5 in respect of the essential qualification as regards the holding of Cinematograph Operator Licence. Keeping in mind the peculiar facts and circumstances of the present case, this court is not inclined to interfere with the appointment order dated 03-12-2016 in respect of the respondent Nos. 3 5. Moreover, there is hardly any difference between the petitioner and the respondent No.5 in respect of the essential qualification as regards the holding of Cinematograph Operator Licence. Keeping in mind the peculiar facts and circumstances of the present case, this court is not inclined to interfere with the appointment order dated 03-12-2016 in respect of the respondent Nos. 3 5. Since the contention of the counsel appearing for the petitioner is devoid of any merit and is not convincing, there is no need of going into the correctness of the argument advanced by the counsel appearing for the private respondents that the petitioner was ineligible for appointment to the post of the Assistant Cinema Operator. Thus, the instant writ petition deserves for dismissal. [12] In view of the above and for the reasons stated hereinabove, the instant writ petition is dismissed with no order as to costs.