Gauhati High Court
Y. Zheto Asumi And Ors. vs State Of Nagaland And Ors. on 14 March, 2001
Author: B. Lamare
Bench: B. Lamare
JUDGMENT
1. By this writ petition the petitioners have challenged the selection of respondents 4, 5 and 6 as Junior Engineers in the Power Department of the State Government. According to the petitioners the selection for the post of Junior Engineers in the department should be in accordance with Section 8(a)(iii) of the Nagaland Engineering Service Rules, 1997 (Class-I and Class-11). Rule 8(a)(iii) of the said Nagaland Engineering Service Rules, 1997 (Class-I and Class-II) (in short 1997 Rules herein) read as follows :-
"50% of the total vacant posts of Junior Engineer at the time of requisition shall be through open competition, with a minimum prescribed qualification being 3(three) years Diploma from ' recognised institute, and 40% of the total vacancies being reserved for 3 years Diploma Certificate holder as indicated in Schedule VI of this Rules."
According to this Rule, the petitioners alleged that 40% of the vacancies should be reserved for 3 (three) years Diploma Certificate holders, and therefore, the selection of respondents 4, 5 and 6 by the Nagaland Public Service Commission (in short N.P.S.C.) was totally against the 1997 Rules.
2. Before going further, the brief of the case is that, by requisition dated 20.11.98 the Jt. Secretary to the Government of Nagaland, Department of Power has requested the NPSC for recruitment of 5 (five) posts of Junior Engineers (Electrical). Again by requisition dated 7.1.99, the Jt. Secretary to the Government of Nagaland, Department of Power has requisitioned for another 2(two) posts of Junior Engineers (Electrical). The said requisitions are at Annexures 'A' and 'B' to the Affidavit-in-opposition filed on behalf of respondents 1 and
2. On the basis of the requisition, the NFSC has issued an advertisement No. 2/99-2000 dated 10th April, 1999 Annexure -'A' to the writ petition. Relevant portion of the said advertisement relating to the post of Junior Engineer (Electrical) is as follows :-
"Item No. 2(a): 7(seven) posts of Junior Engineer (Elect.).
(b); 3 (three) posts of Junior Engineer (Civil), Class-1 Gazetted, under the Department of Power, Nagaland. Qualification for the posts of Junior Engineer (Elect.) is 3(three) years Diploma in Electrical Engineering and Junior Engineering (Civil) is 3 years Diploma in Civil Engineering from any recognised institution.
Scale of Pay : Rs. 1650-55-1925-65-2705-70-3475 p.m."
3. Three petitioners submitted an application for the said post to the NPSC, and the examination was conducted on 15.9.99 and 16.9.99 and the result of the examination was published on 11.2.2000 in the Dally Nagaland Post. In the said written examination, the petitioners were shown to have been qualified, but after the Oral interview which was published by the NPSC on 23.3.2000, the name of the 7(seven) persons including the respondents 4, 5 and 6 were selected for the post of Junior Engineer (Electrical) Class-II Gazetted in order of merit. The names of the petitioners did not appear in the said select list of candidates. Petitioners therefore claims that they should have been selected in place of respondents 4,5 and 6, as the said three posts are reserved for the 3(three) years Diploma Certificate holders according to 1997 Rules.
4. The respondents 1 and 2 filed Affidavit-in-opposition. In the Affidavit-in-opposition, the respondents categorically stated that, the requisition for the post was made to the NPSC prior to the coming into force of 1997 Rules, and therefore, in the instant case the selection was done on the basis of the Nagaland Engineering Services Rules, 1984 and the Nagaland Engineering Services Rules, 1970. (hereinafter caleld 1984 rules and 1970 Rules). The respondents also stated the 1997 Rules are not applicable in the instant case inasmuch as the 1997 Rules came into force only on 15.2.1999 the date on which the same was published in Official Gazette. The respondents 1 and 2 have also stated that in case 1997 Rules are applicable, 50% of the posts are open to all eligible candidates and 40% of the posts are reserved for the candidates with 3(three) years Diploma Certificate holders.
5. In the Affidavit-in-opposition, the NPSC has clearly stated that the posts in question were requisitioned by the concerned department in 1998. The Service Rule holding the field was Nagaland Engineering Service (Revised) Rules, 1970 where there is no reservation for the Diploma Certificate holders. The Nagaland Engineering Service Rules, 1984 (Class-1 and Class II) does not apply in the present case, since Junior Engineer becomes Class-II Gazetted only in the year 1995 and the said Service Rule was never amended. The Nagaland Engineering Service Rules, 1997 (Class-1 and Class-II) was published in the Gazettee only on 15.12.1999. Accordingly the posts were advertised in terms of the Service Rule of 1970, and the Service Rules of 1997 does not apply in the present case.
6. On the face of the above facts and circumstances, the relevant question to be discussed in the instant case is that, whether the selection made by the NPSC in the instant case is covered by 1997 Rules or 1970 Rules. In the instant case, the admitted position is that, 1970 Rules are the prevailing Rules at the relevant time when requisition was made and that 1997 Rules come into effect only on 15.2.1999 from the date of publication of the Rules in the Nagaland Gazette as provided in Section l(b) of the Rules. Section 8 of 1997 Rules relating to direct recruitment of Asstt. Engineer and Junior Engineer read as follows :-
"8. Source of recruitment: Recruitment referred to in Schedule VI shall after the commencement of these Rules be made as follows :
(i) Direct Recruitment;
For direct recruitment to the post of Assistant Engineer and Junior Engineer or to the posts mentioned in Sub-rule (2) of Rule 7 the Government shall send requisition in duplicate in the form prescribed by the Commission to them . The Commission shall advertise the post(s) specifying the terms and conditions of these rules.
(ii) 60% of the total vacant posts of Assistant Engineers at the' time of requisition shall be filled up by direct recruitment through the commission.
(iii) 50% of the total vacant posts of Junior Engineer at the time of requisition shall be through open competition, with a minimum prescribed qualification being 3(three) years Diploma from recognised Institute, and 40% of the total vacancies being reserved for 3 years Diploma Certificate holder as indicated in Schedule VI of this Rule.
(iv) A candidate for direct recruitment must apply before such date, in such a manner and in such form as the Commission may prescribe.
(v) An examination or interview or both for selection to the post(s) shall be held at such time and place as may be prescribed in the notice issued by the Commission for the purpose.
(vi) The Commission shall prepare a list of all candidates who have qualified in the examination or interview or both in order of merit which shall be determined in accordance with aggregate marks obtained by each candidate and if two or more candidates obtain equal marks, the commission shall arrange them in order of their relative merit inacordance with the general suitability of the candidates to the service. The Commission shall forward the names in order of merit up to the number of vacancy/ vacancies reported for direct recruit-ment.
(vii) The inclusion of candidate's name in the list of successful candidates shall not confer right to him for appointment unless the Government is satisfied after such inquiry as may be considered necessary that the candidate is suitable in respects for appointment to the service."
7. Heard learned counsel for the petitioners as well as for the State/ respondents and for the Nagaland Public Service Commission. Learned counsel for the petitioners contended that the selection has been made after the 1997 Rules came into effect, therefore, the petitioners are entitled to 40% reservation provided for 3 years Diploma certificate holders as envisages in 1997 Rules, Learned counsel for the petitioner therefore, contends that the selection is totally against the provision of the Rules and that the respondents 4, 5 and 6 should not have been selected and they have no right to be appointed to the post to which they were selected as the said posts are meant for the three years Diploma certificate holders. According to the learned counsel, the petitioners should have been appointed to the said three posts. The learned counsel for the State/respondents submits that the petitioners having failed to qualify themselves for the post approached this Court by taking a chance to get selection of the respondents 4, 5 and 6 quash although the petitioners are not entitled for appointment to the post.
The learned counsel for the Nagaland Public Service Commission on the other hand contended that the vacancy of the post arose in November 1998 and January 1999 before the coming into force of 1997 Rules. According to the counsel the criteria for decision regarding applicability of the Rules is to be taken at the time when the vacancy arose, and as such, in the instant case 1970 Rules are applicable.
8. On perusal of the requisition as well as advertisement it is not mentioned as to which Rules for selection are applicable, but it is evident that the reservation is according to the State Government policy and not according to the 1997 Rules. To make it clear, Rule 25 of 1997 Rules regarding Repeal and Savings is quoted below :-
"The Nagaland Engineering (Revised) Service Rules, 1984 and any other rules corresponding to these rules which were in force immediately before the commencement of these rules are hereby repealed in respect of the Nagaland Engineering (Class I & II) Services :
Provided that any order made or action taken under the rules so repealed shall be deemed to have been made or action taken validly under the corresponding provision of these rules. BY ORDER AND IN THE NAME OF THE GOVERNOR."
According to Section 25 of 1997 Rules, 1984 Rules were repealed to certain extent; but 1970 Rules were not repealed and were left intact. As noted above; the 1984 Rules are not applicable in the instant case. The 1997 Rules also does not provide any retrospective effect but it is prospective in nature. Rules 8(i) of 1997 clearly states that for direct recruit for the post of Assistant Engineer and Junior Engineer or to the post mentioned in sub-Rule 2 of the Rule 7, the Government shall send requisition in the form prescribed by the Commission to them. The Commission shall advertise the post and specify the terms and conditions of these rules. The above provision of Rule 8(a)(l) shows that the rules are meant only for future vacancies that my arise after the rules have come into effect i.e. after 15.2.1999. The vacancies in the instant case arose before the 1397 Rules came into effect, and as such, the vacancies and selection of the posts in the instant case were done in accordance with 1970 Rules.
10. On perusal of the 1997 Rules as stated above, there is no indication that the intention of 1997 Rules was to cover the selection made in the instant case which was done in accordance with the Rules when the vacancy arose.
11. The Apex Court in P. Ganeshwar Rao and others, Appellants v. State of Andhra Pradesh and others, respondents, reported in AIR 1988 SC 2068 stated as follows :-
"We do not find any indication in the amendment that was made on 28.4.1980 that it would be applicable to the vacancies which had arisen prior to the date of the amendment even by necessary implication. In the instant case the State Government had taken the decision even before the amendment came into force to fill up the vacancies by direct recruitment according to the law prevailing then. Had it been the intention of the State Government, while promulgating the amendment that the amendment should be applicable to the vacancies which had arisen prior to the date of the amendment simultaneously the State Government would have addressed a letter to the Public Service Commission to make recruitment in accordance with the special Rules as amended on 28.4.1980. No such action was taken by the State Government in this case."
The Apex Court further observed in the said P. Ganeshwar Rao and others (supra) that :-
The vacancies which occurred prior to the amended Rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade-II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
12. Following the principles of law laid down by the Apex Court in the above decisions, it can safely be concluded in the instant case that, since the vacancies arose in November 1998 and January 1999 before the 1997 Rules becomes effective, the relevant rules applicable at the time of vacancy arose is the 1970 Rules. Therefore, the contention of the petitioners that the 1997 Rules are applicable has no basis. The petitioners, therefore, are not entitled to the claim of 40% reservation for the 3(three) years Diploma Certificate holders.
13. The next question to be decided is that, whether the petitioners after having failed to qualify in the said selection have any right to approach this Court by way of this petition. It is admitted fact that the petitioners appeared in the written examination and qualified for the same, but they have failed to qualify in the Oral examination in which 7(seven) candidates including respondents 4, 5 and 6 were selected. It is also an admitted fact that the petitioners have all along appeared and attended the examination conducted by the NPSC and did not raise any objection. It is also an admitted position that the petitioners were aware of the advertisement published by the NPSC and took part all along till the final result was published. The petitioners did not raise any objection nor challenge the advertisement even though it is not specified regarding quantum of reservation as claimed by the petitioners under 1997 Rules. The petitioners have come with this petition only when they have failed in the process of selection and after the results were declared. The petitioners therefore, are aware of the whole process of the interview and selection including the advertisement, but did not approach this Court to challenge the advertisement for not providing the reservation quota. On the other hand, the petitioners themselves acquiesce to the entire process of selection.
14. This Court in Assam Animal Husbandry & Veterinary Service Association & Others, Appellants v. State of Assam & others, Respondents, 1999(2) GLJ 419 has clearly laid down the law on this point where it is observed as follows :-
"In the instant case, however, precisely what is objected to on behalf of the respondents is that the petitioner had participated in the interview and according to their own allegations they became aware of the alleged irregularities during the course of the selection proceedings itself. Therefore, immediately after the selection was over, it would have been proper that the petitioners had challenged the proceedings, rather to wait till result was declared and the petitioners came to know that they remained unsuccessful. It is not to be taken mechanically that since the petitioners participated in the interview that they may not be heard complaining about the same. But what is objectionable if that they were keeping quiet after the alleged irregularities came to their knowledge till the result was out. Respondents would not be unjustified in pointing out that this period of waiting, for result to be declared, was only for the purpose of taking a chance and on being declared unsuccessful they turned round to challenge the proceedings in respect of which they did not raise objection before the result was declared. In the case of Rajkumar (supra) relied upon by the appellant, the Hon'ble Supreme Court did not deviate from what has been laid down in Madanlal (supra), but in view of the facts under consideration and application of wrong rules, it was found to be a glaring mistake on the part of the State hence the Court interfered in the matter. We are of the view that the petitioner was entitled to challenge the proceedings of the selection pointing out the alleged irregularities, but within a reasonable time of the irregularities coming to their knowledge, namely, after their interview was over. But their conduct in springing up into action only after the result was declared, which was not favourable to them raises doubt about their bona fides and it may be amended to acquiescence to the selection process in which they took part and waited to challenge it till the result was declared."
15. In my considered view, the above decision of this Court squarely covered the instant case inasmuch as the petitioners have approached this Court only after having failed in the selection process. In other words, the petitioners have not approached this court for their grievances at any stage of the selection process and they have, therefore, no right to approach this Court at this stage.
16. In view of the above discussions and findings, the instant writ petition is therefore devoid of merit and accordingly it is dismissed.
In view of the facts and circumstances of the case, parties are asked to bear their own costs.