Meghalaya High Court
Smti. Sengsime A Sangma And Anr vs The State Of Meghalaya And Ors on 7 May, 2014
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(C) No.341/2013
1. Smti. Sengsime A Sangma,
D/o Alvrise Lucie R Marak,
Village/PO Chitoktak, Tura,
West Garo Hills.
2. Ms. Nikme R Marak,
D/o Shri. Premingstone Ch Momin,
Modynagar, West Garo Hills, Tura.
3. Smti. Anitha Ch Momin,
D/o Jemson A. Sangma,
Village Darenggari,
PO Araimile, Tura, West Garo Hills.
4. Smti. Peary D Marak,
D/o Clyfort K. Sangma,
West Garo Hills, Tura.
5. Smti. Maxian R Marak,
D/o Thrison M Sangma,
Village/P.O. Ronglchon,
West Garo Hills, Tura. :::: Petitioners
-Vs-
1. The State of Meghalaya represented by the
Secretary to the Govt. of Meghalaya,
Department of Education, Shillong.
2. Secretary, Meghalaya Public Service Commission,
Shillong.
3. Smti. Mimie Thina D Arengh,
near Balading Club, Balading, Tura,
West Garo Hills, Meghalaya - 794001.
4. Smti. Christilla Agitok Sangma,
Tura Govt. College, Tura,
West Garo Hills, Meghalaya - 794001.
5. Smti. Porthyna Rangsa Marak,
Tura Govt. College, Tura,
West Garo Hills, Meghalaya - 794001
Page 1 of 28
6. Shri.Sengrik Manda Sangma,
Williamnagar Govt. College,
Williamnagar, East Garo Hills,
Meghalaya - 794111.
7. Shri. Rhinkle Mrong Marak,
Baghmara Govt. College, Baghmara,
South Garo Hills, Meghalaya - 794102.
8. Smti. Maria Grecitha T Sangma,
near Wadanang Baptist Church,
Wadanang, Tura, West Garo Hills,
Meghalaya - 794001.
9. Smti. Brainy Mrong Marak,
Modynagar, Tura, West Garo Hills,
Meghalaya - 794001.
10. Smti. Runavallerie N Sangma,
Tura Govt. College, Tura,
West Garo Hills, Meghalaya - 794001.
11. Smti. Norime Rangsa Marak,
Springt Hills, Makkre Adap, Tura,
West Garo Hills, Meghalaya - 794002.
12. Smti. Siljak Rangsa Marak,
Baghmara Govt. College, Baghmara,
South Garo Hills, Meghalaya - 794102. :::: Respondents.
BEFORE THE HON‟BLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioners : Mr. VK Jindal, Sr. Adv.
Mr. S Dey,
Ms.Q.B. Lamare, Advs
For the Respondents : Mr. ND Chullai, Sr. GA
Mr. KP Bhattacharjee, GA
Mr. HS Thangkhiew, Sr.Adv,
Mr. N. Mozika, Adv.
Mr. B Khyriem, Adv
Date of hearing : 24.04.2014
Date of Judgment & Order : 07.05.2014
Page 2 of 28
JUDGMENT AND ORDER
Petitioners, five in numbers, are assailing the list of the selected candidates i.e. the private respondents No.3-12 vide Notification No.MPSC/D- 3/1/2011-2012/23 dated 06.05.2013 furnished to the State Govt. under the letter of the Secretary, Meghalaya Public Service Commission (for short „MPSC‟) dated 21.05.2013 for appointment to the posts of Lecturers in Garo in Govt. colleges under the Education Department, Govt. of Meghalaya on amongst other reasons (i) selected candidates, are not eligible for appointment to the posts of Lecturers in Garo; (ii) essential eligibility criteria for appointment to the posts of Lecturers in Garo cannot be relaxed through correspondences between the Education Department, Govt. of Meghalaya and the Secretary, MPSC long after cut-off date for determining the eligibility criteria of the candidates for the posts of Lecturers in Garo; (iii) there is no provision for relaxation in the concerned advertisement dated 21.08.2012 for the posts of Lecturers in Garo; (iv) in absence of power of relaxation, relaxation of the essential criteria for the posts of Lecturers in Garo advertised in the advertisement dated 21.08.2012 cannot be relaxed on humanitarian ground (v) if the essential qualifications of the candidates for the posts of Lecturers in Garo are relaxed, there should be re- advertisement for the posts of Lecturers in Garo mentioning the relaxed qualifications, so as to enable the candidates eligible under the relaxed qualifications may apply for the posts, and (vi) once the selection process started, there cannot be relaxation of the essential qualifications in the midst of the selection process, that too, it cannot be through official correspondences, which cannot be given effect to unless and until, those are communicated to the persons or candidates, who could apply for the post under the relaxed qualification.
Page 3 of 28
2. Heard Mr. VK Jindal, learned senior counsel assisted by Mr. S Dey, learned counsel for the petitioners and Mr. ND Chullai, learned Sr. GA assisted by Mr. KP Bhattacharjee, learned GA appearing for the respondent No.1., Shri B. Khyriem, learned counsel for the respondent No.2 . Also heard Mr. Mr. HS Thangkhiew, learned senior counsel assisted by Mr. N Mozika, learned counsel appearing for all the private respondents.
3. Factual Backgrounds:- The petitioners have good academic backgrounds and cleared the National Eligibility Test (for short „NET‟) conducted by the University Grants Commission (for short „UGC‟). Educational qualifications, experiences etc. of the petitioners are hereunder:-
Sl. Name of the Date of BA MA UGC Other
No. petitioners birth (Hons) (Garo) NET qualifications/Experience
1. Sengsime A 24-5-84 2005 2007 2011 1.Lecturer in Don Bosco
th
Sangma 60% 56.88% College Tura since 10
st nd
1 Div. 2 Div October 2009 till date
2.Attended UGC
sponsored Refresher
Course in English &
Comparative Literature,
2011 & 2013.
2. Nikme R Marak 18-11-78 2003 2005 2009 1.Lecturer of Tura Govt.
65.25% 61.75% College since 25-10-
st st
1 Div. 1 Div. 2010.
2.Diploma Course in
Folkloristic.
3.Attended National
Seminar on Tribal
Literature.
4.Awarded Certificate of
Merit by NEHU in Essay,
Writing, Poetry Writing.
3. Anitha Ch 11-3-84 2006 2008 2011 1.B.Ed (63.12%) 2010
Momin 61.2% 53.99%
st nd
1 Div. 2 Div. 2.Lecturer in Don Bosco
st
College, Tura since 1
September, 2010 till date.
4. Peary D Marak 25-10-88 2010 2012 2012
63.2% 63.0%
st st
1 Div. 1 Div.
5. Maxian R 15-8-87 2010 2012 2012
Marak 60.75% 54.40%
st nd
1 Div. 2 Div.
Page 4 of 28
4. The respondent No.2 issued an advertisement No.MPSC/ADVT- 38-1/2012-2013/49 dated 21.08.2012 in the Garo Daily Edition "Salantini Janera", Tura dated 27.08.2012 inviting applications in the prescribed form from the eligible candidates for 10(ten) posts of Lecturers in Garo in Govt. colleges under the Education Department, Govt. of Meghalaya. The last date for submission of form was 5:00pm of 21.09.2012. Under the said advertisement dated 21.08.2012, the upper age limit was 30 years with usual relaxation for SC/ST candidates and the essential qualifications for the posts of Lecturers are clearly mentioned in Para 2 Srl.No.3 of the advertisement dated 21.08.2012. It is also pertinent to mention herein that there is no provision for relaxation of the essential qualifications for the posts of Lecturers in Garo nor the power for relaxation of the essential qualifications of the candidates is indicated in the said advertisement dated 21.08.2012. Para 2 Srl.No.3 of the said advertisement dated 21.08.2012 is quoted hereunder:-
"Para 2: EDUCATIONAL QUALIFICATIONS Applicants must possess the essential qualifications as detailed below subject to various specifications in the relevant service rules as on the date of Notification.
Sl. Name of Posts Educational Qualifications
No
1. ********** **********
2. ********** **********
3. Lecturer in Govt. Colleges under Education Candidates must have
Department Honours in the subject at the
First Degree Level. They must
also have a consistently good
academic record with at least
53% marks (for an equivalent
grade in a point scale
whenever grading system is
followed) at the Master Degree
Level in a relevant subject from
an Indian University or an
equivalent degree from
accredited foreign university.
Page 5 of 28
They must also have cleared
National Eligibility Test (NET)
conducted by UGC/CSIR or
similar tests accredited by the
UGC. For the posts of
Lecturers of CTE, Tura, B.Ed,
is an essential qualification.
Relaxation of 5% marks from
55% is applicable to SC/ST
candidates. Ph.D. Degree
holders are exempted from
requirement of NET."
5. The petitioners, having fulfilled all the essential educational qualifications for the posts of Lecturers in Garo mentioned in the advertisement dated 21.08.2012, applied in the prescribed form for the posts of Lecturers in Garo in the Govt. colleges under the Education Department, Govt. of Meghalaya. The Chief Controller of Examination, MPSC, Shillong issued call letters to the petitioners asking them to appear before the Commission at Shillong on 01.05.2013 for the personal interview. It will be more profitable to refer to the Para 6 "Instruction" of the advertisement dated 21.08.2012, which reads as follows:-
"PARA 6: INSTRUCTION I. All application must be completed in all respects and accompanied with proof of payment of fee and enclosed with one enveloped of 4 cms affixed with Rs.5/- postage stamp.
II. Candidates are required to clearly indicates both the Division and percentage of marks in the column captioned "Decision/Percentage" at Sl.No.20 of AF-I Form.
III. The following document are to be attached/ uploaded along with the application form:
(a) Recent self attested passport size photograph. (b) MPSC copy of Fee Challan.
IV. Incomplete application will be summarily rejected and no further correspondence will be entertained.
V. Government Employees may submit their application directly to the office of the Secretary, Meghalaya Public Service Commission, Page 6 of 28 Shillong in Form AF-I with separate request to their heads/appointing authorities for "PERMISSION" when called for Examination/or Interview.
VI. Candidate must appear for Written Test/Interview at his/her own expenses."
6. It is an admitted fact of both the parties that the private respondents No.3-12 are neither Ph.D. Degree holders nor cleared NET on or before the cut-off date i.e. 21.09.2012 the last date for submission of form under the said advertisement dated 21.08.2012. Under "Para 6 Instruction" of the advertisement dated 21.08.2012, the candidates must appear written test/interview at his/her own expenses. There were no twin tests i.e. written test and viva voce test as provided under Para 6 Instruction and there was only interview of the candidates on 1st, 2nd & 3rd May, 2013 from 11:00am to 2:30pm in the Office of the MPSC, Shillong; and 65 candidates including the petitioners and the private respondents No.3-12 appeared for the interview for the posts of Lecturers in Garo. The interview was only about 10 minutes per candidate and the interview was conducted in the most haphazard manner. The respondent No.2 vide Notification No.MPSC/D/3/1/2011-2012/23 dated 06.05.2013, recommended the private respondents No.3-12 for recruitment to the posts of Lecturers in Garo in Govt. colleges under the Education Department and forwarded the select list along with the said Notification to the respondent No.1 vide letter No.MPSC/D/3/1/2011-2012/24 dated 21.05.2013. Being aggrieved by the impugned select list, the petitioners filed the joint writ petition for quashing the impugned select list for appointment of the private respondents No.3-12, who are not the eligible candidates for the reasons mentioned in the aforementioned Para No.1.
7. The private respondents No.4, 5, 6, 7, 10 & 12 filed joint affidavit- in-opposition. In Para 4 of the joint affidavit-in-opposition, it is stated that the writ Page 7 of 28 petitioners have cleared their University Grants Commission - National Eligibility Test (UGC-NET) in "Folk Literature" subject and not Garo subject and as per the UGC Regulations, a candidate must have cleared UGC-NET in the particular subject. As such, the contention of the writ petitioners that NET is mandatory for appointment to the posts of Lecturers in Garo subject is accepted, the petitioners themselves are not eligible for appointment to the posts of Lecturers advertised in the advertisement dated 21.08.2012, which clearly indicated that clearance of NET is an essential qualification but the Ph.D. Degree holders are exempted from the requirement of NET. It is also stated that the UGC does not conduct UGC-NET in Garo subject and as per the UGC Regulations, if NET is not conducted in a particular subject , NET is not a mandatory requirement for appointment of Lecturers in that particular subject. But in the present case, it is admitted case of the parties that NET is an essential qualification for the posts of Lecturers in Garo under the advertisement dated 21.08.2012 but the Ph.D. Degree holders are exempted from the NET. The respondents No.4, 5, 6, 7, 10 & 12 further stated in their joint affidavit-in-opposition that the Govt. of Meghalaya, Education Department vide letter No.EDN.18/2005/35 dated 08.10.2012, after cut-off date i.e. last date for submission of form i.e. 21.09.2012, informed the Secretary, MPSC that NET is not required for Lecturers in Garo Department and necessary corrections be made in respect of educational qualifications that "preference will be given to the candidates with Ph.D. or NET" in place of "qualify for NET or Ph.D." and long after the viva-voce examination of the candidates was over, the Special Officer Education Department also wrote a letter dated 13.05.2013 to the Secretary, MPSC that he learnt from some candidates that NET or Ph.D. was insisted as the requisite qualification for appointment and it is clarified that NET is preferable only as the appointment are for filling up posts with State scale of Pay initially. The said two letters i.e. 18.10.2012 and 13.05.2013 are the interdepartmental correspondences and that too, after the cut-off date i.e. last date i.e. 21.09.2012 Page 8 of 28 for submission of form for the posts of Lecturers in Garo and the relaxation of the essential qualifications under the said two interdepartmental correspondences were not made public nor re-advertisement mentioning the relaxed essential qualification nor known to the candidates having relaxed qualifications. The said two departmental letters/correspondences i.e. 18.10.2012 and 13.05.2013 are quoted hereunder:-
"GOVERNMENT OF MEGHALAYA EDUCATION DEPARTMENT No.EDN.18/2005/35 dated Shillong, the 8th October, 2012.
From : Smti. E. Kharmawphlang, Under Secretary to the Govt. of Meghalaya, Education Department.
To, Shri. R. Rapthap, MCS, Secretary, Meghalaya Public Service Commission, Shillong.
Subject: Recruitment to the Post of Lecturer in Government Colleges.
Ref:No.MPSC/D-3/1/2011-2012 dated 13th September, 2012.
Sir, With reference to the letter on the subject cited above I am directed to furnish herewith the requisite information as follows:-
1. There is no vacant post of Lecturers in College of Teachers Education Tura.
2. NET is not required for Lecturer in Garo Department.
3. Also kindly refer to the Advertisement vide No.MPSC/ADVT-
38/1/2012-2013/49 dated 21st August 2012 where necessary correction may be made in respect of Para 2. Educational Qualification at Sl.No.3 that „Preference will be given to the Candidate with Ph.D. or NET in place of „qualify for NET or Ph.D. Yours faithfully, Sd/-
Under Secretary to the Govt. of Meghalaya, Education Department.
Page 9 of 28
"GOVERNMENT OF MEGHALAYA EDUCATION DEPARTMENT No.EDN.66/2007/104 dated Shillong, the 13th May,, 2013.
From : Shri. W Mukhim, Special Officer to the Govt. of Meghalaya, Education Department.
To, Secretary, Meghalaya Public Service Commission, Shillong.
Subject: Recruitment to the Post of Lecturers in Govt. Colleges.
Ref: No.EDN.66/2007/69 dated 1st Sept,. 2011.
Sir, With reference to this Department‟s letter cited above, I am directed to say that Govt. had requested the Commission to advertise for filling up of the vacant posts in Govt. colleges.
However, it was learnt from some candidates that NET or/ and Ph.D. was insisted as the requisite qualification for appointment.
In view of the above, I am directed to clarify that NET is preferable only as the appointment are filling up posts with State scale of Pay initially. However, if there are candidates who have passed NET or/ and Ph.D., they shall be given first preference and shall be automatically appointed with UGC Scale of pay on joining.
This has the approval of the Competent Authority.
Yours faithfully, Sd/-
Special Officer to the Govt. of Meghalaya, Education Department."
8. The petitioners filed rejoinder affidavit dated 12.03.2014 to the affidavit-in-opposition filed by the respondents No.4, 5, 6, 7, 10 & 12. Para 4 of the rejoinder affidavit filed by the petitioners reads as follows:- Page 10 of 28
"That the averments and objections as raised and/or made by the Private Respondents in their related affidavit in Oppositions that the Petitioners have cleared their UGC NET in "Folk Literatures"
subject and not in Garo subject is not correct and sustainable. Further, it is also not fully correct to say that no UGC NET is conducted in Garo subjects. Further contentions of the Respondents that the Govt. in Education Department vide Letter dt. 08.10.2012 (Annexure R - 2) addressed to the Secretary, MPSC has intimated that NET is not required for Lecturer in Garo Department and the necessary correction be made in respect of Educational qualification that "Preference will be given to the Candidate with NET or Ph.D", is also not acceptable to the Petitioners. The related position is explained as hereunder:-
(i) The North Eastern Hill University, Shillong confers the Master Degree (Post Graduate) in Garo Subject in the Department of Garo. The Course is of 2 years and is divided into 4 Semesters with the following subjects with their related Code Numbers:-
Semester - I Sl. No. Subject Code Number
(a) History of Garo language and Literature 101 (b) Sacrificial Rights and Invocation 102 (c) Drama - I 103 (d) Linguistics - I 104 (e) Environmental Studies 105 Semester - II Sl.No. Subject Code Number (a) Fiction I 201 (b) Literature in Translation 202 (c) Prose I 203 (d) Linguistic II 204 (e) Linguistic III 205 Page 11 of 28 Semester - III Sl.No. Subject Code Number (a) Literary Theory and Criticism 301 (b) Epic as a Literary Genre 302 (c) Drama II 303 (d) Linguistic III 304 (e) Folklore I 305 Semester - IV Sl.No. Subject Code Number (a) Poetry II 401 (b) Folklore II 402 (c) Tragedy as a Literary 403 (d) Indian Literature in English 404 (e) Modern Poetry 405 The Deponent submits that as per the aforesaid Syllabus of Master Degree in Garo subject, Linguistic is a subject which is taught in Semester I, II and III and similarly Folklore (Folk Literature) is also a subject which is taught in IIIrd and IVth Semesters of the Master Degree in Garo subject.
Though University Grants Commissions conducts NET Examination in 95 subjects and Garo Subject is not included as one of them, but Clause 3 (iv) of the University Grants Commission, National Educational Testing (NET) Bureau notification published every year provides as follows:-
Clause 3 (iv) "Candidates are advised to appear in the subject of their Post Graduation only. The Candidates whose Post Graduation subject is not covered in the List of Subjects in item No. 9, may appear in a related subject"
Item serial No. 9 (subjects) of the said Notification includes the Linguistics and Folk Literature as the subjects for which NET is Page 12 of 28 conducted by the UGC. The Petitioners have appeared in the NET Examination in Folk Literature which is one of the related subject in the Garo subject in Post Graduate level conducted by the UGC and they have qualified the same.
Therefore, in view of what has been stated hereinabove the objection of the Respondents that the UGC does not conduct NET in Garo subject is not fully correct as the UGC allows such candidate to appear in the NET Examination in their related subject. Folk Literature (Folklore) is one of the related subjects in Garo and the Writ Petitioners appeared in the said subject and qualified the same. Thus the contention of the respondents that the Petitioners themselves do not possess the requisite qualification is not at all sustainable.
(Copy of the Syllabus in Garo subject and UGC, NET Bureau Notification are enclosed and are marked as Annexure P12 and P13 respectively)."
9. The University Grants Commission, National Educational Testing (NET) Bureau prescribed the conditions of the eligibility of the candidates for clearing NET and also the subject for NET. For easy reference, the relevant portions of the University Grants Commission, National Educational Testing (NET) Bureau (Annexure-P 13 to the rejoinder affidavit) are quoted hereunder:-
"UNIVERSITY GRANTS COMMISSION NATIONAL EDUCATIONAL TESTING (NET) BUREAU Important Notification Results Marks e-Certificate e-certificate Previous help Dates for NET verification Question Papers Age Check List Eligibility Enclosures Fee General Instruction How to apply Scheme of Scheme of Subjects Coordinating Syllabus NET Test Examination Institutions subjects Page 13 of 28
3) CONDITIONS OF ELIGIBILITY
i) Candidates who have secured at least 55% marks (without rounding off) in Master‟s Degree OR equivalent examination from universities/institutions recognized by UGC in Humanities (including languages) and Social Science, Computer Science & Applications, Electronic Science etc. are eligible for this Test.
The Scheduled Caste (SC) / Scheduled Tribe (ST) / Persons with disability (PWD) category candidates who have secured at least 50% marks (without rounding off) in Master‟s degree or equivalent examination are eligible for this Test.
ii) Candidates who have appeared OR will be appearing at the qualifying Master‟s degree (final year) examination and whose result is still awaited OR candidates whose qualifying examinations have been delayed may also apply for this Test. However, such candidates will be admitted provisionally and shall be considered eligible for award of JRF/Assistant Professor eligibility only after they have passed their Master‟s degree examination or equivalent with at least 55% marks (50% marks in case of SC/ ST/ PWD (Persons with disability) category candidates). Such candidates must complete their P.G. degree examination within two years from the date of NET result with required percentage of marks, failing which they shall be treated as disqualified.
iii) The Ph.D. degree holders whose Master‟s level examination had been completed by 19th September, 1991 (irrespective of date of declaration of result) shall be eligible for a relaxation of 5% in aggregate marks (i.e., from 55% to 50%) for appearing in NET.
iv) Candidates are advised to appear in the subject of their post-graduation only. The candidates whose post-graduation subject is not covered in the list of subjects in item No. 9, may appear in a related subject.
v) Candidates belonging to SC/ST/OBC (Non-creamy layer)/PWD category are required to submit attested copy of the category Certificate along with online printout of their Application Forms (obtained while applying on-line). Other candidates are not required to submit any certificates/documents in support of their eligibility along with printout of their Application Form. Therefore, the candidates, in their own interest, must satisfy themselves about their eligibility for the Test. In the event of any ineligibility being detected by the Commission at any stage, their candidature will be cancelled and they shall be liable for legal action.
***** ***** *****
***** ***** *****
Page 14 of 28
8) IMPORTANT :
i) The National level Test for determining the eligibility of candidates for the award of Junior Research Fellowship/ Assistant Professor in science subjects (Chemical Sciences; Earth, Atmospheric, Ocean & Planetary Sciences; Life Sciences; Mathematical Sciences and Physical Sciences) is conducted jointly with the Council of Scientific and Industrial Research (CSIR), New Delhi. The candidates in these science subjects, desirous of availing UGC-JRF or obtaining eligibility for Assistant Professor in these subjects are advised to appear in the Joint CSIR- UGC Test for Junior Research Fellowship and Eligibility for Assistant Professor conducted by CSIR.
ii) The UGC-NET for JRF/eligibility for Assistant Professor will be held at the NET Coordinating Institutions specified in the list under item No. 10.
iii) PLEASE NOTE THAT CHANGE OF NET INSTITUTION WILL NOT BE ALLOWED UNDER ANY CIRCUMSTANCES.
9. Subjects:
The list of NET subjects along with their respective codes is as given below:-
***** ***** ***** 71. Folk Literature."
On plain perusal of the UGC, National Educational Testing (NET) Bureau, it is clear that the candidates are advised to appear in subject of their post-graduation only. The candidates whose post-graduation subject is not covered in the list of subjects (9. subjects) may appear in a related subject of subjects i.e. 9. subjects which had been quoted above. "Folk Literature" is one of the related subjects being Item No.71 of the 9. subjects. The petitioners admittedly cleared NET in "Folk Literature" which is the related subject in Semesters III & IV of the 2 years Course for Master Degree (Post Graduation) in Garo subject in the department of Garo, North Eastern Hill University (NEHU), Shillong. For the sake of repetition, it is reiterated that the writ petitioners had cleared NET in Folk Literature, which is a related subject of 2 years course of Page 15 of 28 Master Degree (Post Graduation) in Garo subject in the department of Garo, NEHU, Shillong.
10. Selection Process:
It is well settled in service jurisprudence that the selection process begins with the issue of advertisement. For this well settled position of law, it may not be required to refer to a catena of decisions of the Apex Court and it would be sufficed to refer to the decision of the Apex Court in A.P. Public Service Commission, Hyderabad & Anr vs. B. Sarat Chandra & Ors: (1990) 2 SCC 669.
11. Un-communicated correspondence:
It is also settled law that the un-communicated order/official correspondences have no force and not valid in the eye of law and no claims can be made on the basis of the un-communicated orders/official correspondence. The interdepartmental correspondences in the present case dated 18.10.2012 and 13.05.2013, cannot be made effective unless and until those are communicated to the persons/candidates, who had possessed relaxed qualifications. Over and above, interdepartmental correspondences dated 18.10.2012 and 13.05.2013 cannot be operative after the selection process had already been started by issuing advertisement dated 21.08.2012 wherein, it is clearly prescribed that the essential qualifications or educational qualifications for the candidates for appointment of Lecturers in Garo i.e. 10 (ten) posts advertised under the advertisement dated 21.08.2012. The Apex Court in (i) Tagin Litin vs. State of Arunachal Pradesh & Ors: (1996) 5 SCC 83 and (ii) State of W.B. vs. Mr. Mondal & Anr: (2001) 8 SCC 443 had considered and discussed the un-communicated Govt. orders.Page 16 of 28
The Apex Court in Tagin Litin‟s case (Supra) held that:
"11. It is settled law that, in order to be effective, an order passed by the State or its functionaries must be communicated to the person who would be affected by that order and until the order is so communicated the said order is only provisional in character and it would be open to the authority concerned to reconsider the matter and alter or rescind the order. (See: Bachhittar Singh vs. State of Punjab: 1962 Supp (3) SCR 713: AIR 1963 SC 395, SCR at p.721)."
The Apex Court in Mr. Mondal‟s case (Supra) held that:
"16. ........... An order passed but retained in file without being communicated to the plaintiff can have no force or authority whatsoever and the same has no valid existence in the eye of the law or claim to have come into operation and effect. No reliance can be placed on the same to even assert a claim based on its contents. If its utility depended upon a decision to be taken on the performance of the plaintiff by the competent authority, neither the authority could be compelled to take a decision or any concrete rights could be said to have been acquired by the plaintiff, to warrant the grant of the type of directions given in this case. It is really surprising that the discretionary power to grant injunction, be it of prohibitory or mandatory nature, has been availed of to bring into existence and force upon the State a new contract, which could never have been the intention of the State itself."
12. Last date of eligibility ("relevant date for fulfillment of the eligibility criteria for appointment to the posts advertised in the particular advertisement"):
It is well settled that recruitment of a post must be made in the terms of the advertisement operating in the field. The essential qualification must be possessed by a person as on the date of issuance of the Notification or as specified in the rules and only in absence thereof, the qualification acquired till the last date of filing the application. For this settled position of law, we may refer to the four decisions of the Apex Court in (i) U.P. Public Service Commission U.P., Allahabad & Anr. vs. Alpana: (1994) 2 SCC 723; (ii) Ashok Kumar Sonkar vs. Union of India & Anr.: (2007) 4 SCC 54; (iii) Rajasthan Public Page 17 of 28 Service Commission vs. Kalia Kumar Paliwal & Anr: (2007) 10 SCC 260 and; (iv) Bedanga Talukdar vs. Saifudaullah Khan & Ors: (2011) 12 SCC 85.
12.1. The Apex Court in Alpana‟s case (Supra) held that the relevant date for fulfillment of educational qualifications should be the last date for receipt of applications by the Public Service Commission and subsequent attainment even before commencement of written examination did not entitle the respondents (writ petitioners) to appointment. In that case, the Apex Court further held that many candidates superior to the respondents (writ petitioners) in merit may not have applied as the results of the LL.B. examination were not declared before the last date for receipt of applications. If once such an approach is recognized there would be several applications received from such candidates not eligible to apply and that would not only increase avoidable work or the selecting authority but would also increase the pressure on such authorities to withhold the interviews till the results are declared, thereby causing avoidable administrative difficulties.
12.2. The Apex Court in Ashok Kumar Sonkar‟s case (Supra) held that possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In the absence of any rules or any specific date having been fixed in the advertisement, the law would be the last date for filing the application. Paras 11, 15 & 20 of the SCC in Ashok Kumar Sonkar‟s case (Supra) read as follows:-
"11. The question as to what should be the cut-off date in absence of any date specified in this behalf either in the advertisement or in Page 18 of 28 the reference is no longer res integra. It would be last date for filing application as would appear from the discussion made hereinafter.
15. It was held: SCC pp.21-22, para 6) "So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. 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 or 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. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan: 1993 Supp (3) SCC 168: 1993 SCC (L&S) 951: (1993) 25 ATC 234. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview."
20. Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application."
12.3. The Apex Court in Kaila Kumar Paliwal‟s case (Supra) held that recruitment to a post must be made strictly in terms of the Rules operating in the field. Essential qualification must be possessed by a person as on the date of Page 19 of 28 issuance of the Notification or as specified in the Rules and only in absence thereof, the qualification acquired till the last date of filing of the application would be the relevant date. Even the Selection Committee in absence of any express power conferred upon it cannot relax such essential qualification. Even where their exists a provision for relaxation, for example relaxation in age, the same must be strictly complied with. Paras 20, 21 & 22 of the SCC in Kaila Kumar Paliwal‟s case (Supra) read as follows:-
"20. A person in order to be considered for promotion to a higher post must possess the essential qualification. If he does not do so, he cannot be considered therefor. Even the Selection Committee in absence of any express power conferred upon it cannot relax such essential qualification. [See J.C. Yadav v. State of Haryana:
(1990) 2 SCC 189: 1990 SCC (L&S) 218: (1990) 12 ATC 745 and Bhanu Prasad Panda (Dr) v. Chancellor, Sambalpur University: (2001) 8 SCC 532: 2002 SCC (L&S) 14].
21. Recruitment to a post must be made strictly in terms of the Rules operating in the field. Essential qualification must be possessed by a person as on the date of issuance of the notification or as specified in the Rules and only in absence thereof, the qualification acquired till the last date of filing of the application would be the relevant date. (See Ashok Kumar Sharma v. Chander Shekar: (1997) 4 SCC 18: 1997 SCC (L&S) 913, U.P. Public Service Commission v. Alpana: (1994) 2 SCC 723: 1994 SCC (L&S) 742 and Harpal Kaur Chahal v. Director, Punjab Instructions: 1995 Supp (4) SCC 706).
22. Even where their exists a provision for relaxation, for example relaxation in age, the same must be strictly complied with. (See Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy: (2006) 8 SCC 671: (2007) 1 SCC (L&S) 23 and P.K. Ramachandra Iyer v. Union of India: (1984) 2 SCC 141: 1984 SCC (L&S) 214)."
12.4. Power of relaxation (of the essential qualification for the post mentioned in the advertisement):-
It is fairly settled that the selection process has to be conducted strictly in accordance with stipulated selection procedure which needs to be scrupulously maintained. There cannot be any relaxation in terms and conditions of the advertisement unless such power is specifically reserved in relevant rules and/or in advertisement. Even when the power of relaxation is or is not provided Page 20 of 28 in relevant rules it must be mentioned in the advertisement. Such power, if exercised should be given due publicity to ensure that those candidates who become eligible due to relaxation are afforded equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication is contrary to mandate of equality in Articles 14 and 16 of the Constitution. Paras 29, 30, 31 & 32 of the SCC in Bedanga Talukdar‟s case (Supra) read as follows:-
29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained.
There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India.
30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of respondent No. 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India.
31. In our opinion, the High Court was in error in concluding that the respondent No.3 had not treated the condition with regard to the submission of the certificate along with the application or before appearing in the preliminary examination, as mandatory. The aforesaid finding, in our opinion, is contrary to the record. In its resolution dated 21-5-2010, the Commission has recorded the following conclusions:-
"Though Shri S. Khan had mentioned in his letter dated 10.12.2009 that he was resubmitting the Identity Card with regard Page 21 of 28 to Locomotor Disability he, in fact, had submitted the documentary proof of his Locomotor Disability for the first time to the office of the A.P.S.C. through his above letter dated 10.12.2009. However, after receiving the Identity Card the matter was placed before the full Commission to decide whether the Commission can act on an essential document not submitted earlier as per terms of advertisement but submitted after completion of entire process of selection. The Commission while examining the matter in details observed that Shri S. Khan was treated as General candidate all along in the examination process and was not treated as Physically Handicapped with Locomotor Disability. Prior to taking decision on Shri S. Khan it was also looked into by the Commission, whether any other candidate's any essential document relating to right/benefits etc. not furnished with the application or at the time of interview but submitted after interview was accepted or not. From the record, it was found that prior to Shri S. Khan's case, one Smt. Anima Bashya had submitted an application before the Chairperson on 26.2.2009 claiming herself to be a S.C. candidate for the first time. But her claim for treating herself as a S.C. candidate was not entertained on the grounds that she applied as a General candidate and the caste certificate in support of her claim as S.C. candidate was furnished long after completion of examination process."
32. In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In such circumstances, the High Court could not have issued the impugned direction to consider the claim of respondent No.1 on the basis of identity card submitted after the selection process was over, with the publication of the select list."
12.5. The Apex Court in Dr.M.C Bindal vs. R.C. Singh & Ors: (1989) 1 SCC 136 held that the Public Service Commission has to consider and to get itself satisfy as to which of the candidates has fulfilled the requisite qualifications specified in the advertisement. The Apex Court had set aside the candidates who were appointed without requisite qualifications and directed to re-advertise. 12.6. The Apex Court in State of Gujarat & Ors vs. Arvindkumar T. Tiwari & Anr: (2012) 9 SCC 545 held that the Court cannot direct the authority Page 22 of 28 to make the appointment of the selected candidates or persons by granting relaxation of eligibility on humanitarian grounds and in a particular case, where it is so required, relaxation of even educational qualifications may be permissible, provided that the rules empower the authority to relax such eligibility in general. Para 10 of the SCC in Arvindkumar T. Tiwari‟s case (Supra) reads as follows:-
"10. The appointing authority is competent to fix a higher score for selection, than the one required to be attained for mere eligibility, but by way of its natural corollary, it cannot be taken to mean that eligibility/norms fixed by the statute or rules can be relaxed for this purpose to the extent that the same may be lower than the ones fixed by the statue. In a particular case, where it is so required, relaxation of even educational qualification(s) may be permissible, provided that the rules empower the authority to relax such eligibility in general, or with regard to an individual case or class of cases of undue hardship. However, the said power should be exercised for justifiable reasons and it must not be exercised arbitrarily, only to favour an individual. The power to relax the recruitment rules or any other rule made by the State Government/authority is conferred upon the Government/authority to meet any emergent situation where injustice might have been caused or, is likely to be caused to any person or class of persons or, where the working of the said rules might have become impossible. (Vide State of Haryana v. Subash Chander Marwaha: (1974) 3 SCC 220: 1973 SCC (L&S) 488: AIR 1973 SC 2216, J.C. Yadav v. State of Haryana: (1990) 2 SCC 189: 1990 SCC (L&S) 218: (1990) 12 ATC 745 and Ashok Kumar Uppal v. State of J&K: (1998) 4 SCC 179: 1998 SCC (L&S) 1055)".
12.7. The Apex Court in Smti.Swaran Lata vs. Union of India & Ors:
(1979) 3 SCC 165 held that no relaxation in qualifications can be made when the advertisement has duly been issued inviting applications and persons possessing the qualifications advertised, as prescribed by the Rules, are available and have submitted their applications. In the case of Swaran Lata case (Supra), the advertisement itself contained a relaxation clause. In the present case, the advertisement dated 21.08.2012 does not contain a relaxation clause and therefore, there is no question of relaxation in educational qualifications after the selection process had duly been started. Para 63 of the SCC in Swaran Lata case (Supra) reads as follows:-Page 23 of 28
"63. Lastly, the contention of respondent 7, Smt. Usha Wadwa that the failure of the Union Public Service Commission to re-advertise the post prevented her from applying for the post and thereby there was denial of equal opportunity to her in violation of Article 16(1) can be easily disposed of. It is true that no relaxation in qualifications can be made when an advertisement has duly been issued inviting applications and persons possessing the qualifications advertised, as prescribed by the rules, are available and have submitted their applications. If a relaxation has to be made, there is a duty cast to re-advertise the post. In the instant case, however, the advertisement itself contained a relaxation clause and, therefore, nothing prevented respondent 7 from making an application, if she felt that she was better, if not equally, qualified as respondent 6. the contention appears to be an afterthought and must be rejected."
12.8. Selection criteria or Rules of the game:-
It is too late for the day to accept the submission of the respondents that the essential educational qualifications of the candidates for appointment to the posts of Lecturers in Garo mentioned in the advertisement dated 21.08.2012 can be changed long after the selection process had been started by interdepartmental correspondences dated 18.10.2012 and
13.05.2013. It is well settled that the selection criteria or rules of the game cannot be changed when the game is under process. In the present case, the game was under process i.e. the process of selection when the State Govt. through a process not permissible under the law amended the essential qualifications or educational qualifications for the candidates for the posts of Lecturers in Garo advertised in the advertisement dated 21.08.2012. We may refer to the decisions of the Apex Court in (i) K Manjusree vs State of Andhra Pradesh & Anr: (2008) 3 SCC 512; (ii) Ramesh Kumar vs. High Court of Delhi & Anr: (2010) 3 SCC 104 and; (iii) State of Orissa & Anr v. Mamata Mohanty: (2011) 3 SCC 436. The Apex Court in Ramesh Kumar‟s case (Supra) held that:
"14. Similarly, in K Manjusree v. State of A.P.:(2008) 3 SCC 512:
(2008) 1 SCC (L&S) 841: AIR 2008 SC 1470, this Court held that Page 24 of 28 selection criteria has to be adopted and declared at the time of commencement of the recruitment process. The rules of the game cannot be changed after the game is over. The competent authority, if the statutory rules do not restrain, is fully competent to prescribe the minimum qualifying marks for written examination as well as for interview. But such prescription must be done at the time of initiation of selection process. Change of criteria of selection in the midst of selection process is not permissible."
(emphasis supplied) The Apex Court in State of Orissa & Anr v. Mamata Mohanty:
(2011) 3 SCC 436 (2011) 3 SCC 436 held that:
"50. In the absence of an enabling provision for grant of relaxation, no relaxation can be made. Even if such a power is provided under the statute, it cannot be exercised arbitrarily. (See Union of India v. Dharam Pal: (2009) 4 SCC 170 : (2009) 1 SCC (L&S) 790.) Such a power cannot be exercised treating it to be an implied, incidental or necessary power for execution of the statutory provisions. Even an implied power is to be exercised with care and caution with reasonable means to remove the obstructions or overcome the resistance in enforcing the statutory provisions or executing its command. Incidental and ancillary powers cannot be used in utter disregard of the object of the statute. Such power can be exercised only to make such legislation effective so that the ultimate power will not become illusory, which otherwise would be contrary to the intent of the legislature. (Vide Matajog Dobey v. H.S. Bhari : AIR 1956 SC 44 : 1956 Cri LJ 140 and State of Karnataka v. Vishwabharathi House Building Coop. Society: (2003) 2 SCC 412.)
51. More so, relaxation in this manner is tantamount to changing the selection criteria after initiation of selection process, which is not permissible at all. Rules of the game cannot be changed after the game is over. (Vide K.Manjusree v. State of A.P. : (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841 : AIR 2008 SC 1470 and Ramesh Kumar v. High Court of Delhi : (2010) 3 SCC 104 : (2010) 1 SCC (L&S) 756 : AIR 2010 SC 3714.)
13. At the last there was a faint attempt from the side of the respondents that the petitioners are barred from filing the present writ petition as they had already participated in the concerned selection process by the principle estoppel or acquiescence. Yes, the petitioners may be barred from filing the writ Page 25 of 28 petition after they had participated in the selection process on the ground that the results of the selection process are not palatable to them, but the writ petitioners are not barred, even if they participated in the selection process, by principle estoppel or acquiescence in questioning the recommendations of the candidates who do not possess the requisite qualifications under the Rules or the advertisement inasmuch as the appointment of the ineligible candidates is illegal and there cannot be estoppel against the law. The Apex Court in Dr. Prit Singh vs. S.K.Mangal & Ors: 1993 Supp (1) SCC 714 held that:
"13. We fail to understand as to how the Vice-Chancellor who himself was of the opinion that the appellant did not possess the requisite qualifications for the post of Principal and who had refused to approve the said appointment, later approved the same appointment on November 13, 1987 with effect from October 16, 1987. It has rightly been submitted on behalf of the respondents that the Vice-Chancellor approved the appointment after October 15, 1987 when the amendment was made in the prescribed qualifications for the post of Principal of a recognized College of Education. If he was not eligible for appointment in terms of the prescribed qualifications on the date he was appointed by the Managing Committee subject to the approval of the Vice- Chancellor, then later he cannot become eligible after the qualifications for the post were amended. As such we are in agreement with the view expressed by the High Court, that on the date of the appointment the appellant did not possess the requisite qualifications and as such his appointment had to be quashed."
14. Mr. ND Chullai, learned Sr.GA appearing for the respondents No.1 & 2 in his usual fairness had submitted that under the law or under the principle estoppel, the writ petitioners, who had already participated in the selection process cannot be barred from filing the writ petition challenging the recommendations of the candidates illegally, but the writ petitioners are barred for filing the writ petition questioning the composition of the Selection Committee or assessments of the writ petitioners by the Selection Committee or comparative performances of the writ petitioners and the selected candidates. Keeping in view of the settled position of law, this Court is not exercising the judicial review of the comparative assessments of the petitioners and the Page 26 of 28 selected candidates by the Selection Committee. The Apex Court in Ramesh Kumar vs. High Court of Delhi & Anr: (2010) 3 SCC 104 held that the question of acquiescence does not arise in the writ petition filed by the writ petitioners, who had already participated in the examination in questioning the legality of the selected candidates. Para 18 of the SCC in Rajesh Kumar case (Supra) read as follows:-
"18. These cases are squarely covered by the judgment of this Court in Hemani Malhotra v. High Court of Delhi: (2008) 7 SCC 11: (2008) 2 SCC (L&S) 203: AIR 2008 SC 2103, wherein it has been held that it was not permissible for the High Court to change the criteria of selection in the midst of selection process. This Court in All India Judges' Assn. (3) case: (2002) 4 SCC 247: 2002 SCC (L&S) 508: AIR 2002 SC 1752 had accepted Justice Shetty Commission's Report in this respect i.e. that there should be no requirement of securing the minimum marks in interview, thus, this ought to have been given effect to. The Court had issued directions to offer the appointment to candidates who had secured the requisite marks in aggregate in the written examination as well as in interview, ignoring the requirement of securing minimum marks in interview. In pursuance of those directions, the Delhi High Court offered the appointment to such candidates. Selection to the post involved herein has not been completed in any subsequent years to the selection process under challenge. Therefore, in the instant case, in absence of any statutory requirement of securing minimum marks in interview, the High Court ought to have followed the same principle. In such a fact situation, the question of acquiescence would not arise."
15. The Apex Court in Union of India vs. S.J. Kumar: (2007) 8 SCC 100 held that there are certain exceptions to the rules that those candidates who had taken part in the selection process knowing fully well the procedures laid down therein were not entitled to question the same.
16. For the foregoing discussions, the grounds for challenging the recommendation of the private respondents No.3-12 by the impugned Notification dated 06.05.2013 and the impugned communication dated 21.05.2013 mentioned in the aforementioned Para No.1 are answered in favour Page 27 of 28 of the writ petitioners and come to finding that the recommendations of the private respondents No.3-12 under the said impugned letter dated 06.05.2013 and the communication dated 21.05.2013 are illegal. Accordingly, the impugned letter dated 06.05.2013 and the communication dated 21.05.2013 are hereby quashed and set aside.
17. In the result, the writ petition is allowed.
JUDGE Lam Page 28 of 28