Meghalaya High Court
Smt Meridalin Kharlyngdoh vs State Of Meghalaya on 1 August, 2017
Author: Sr Sen
Bench: Sr Sen
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THE HIGH COURT OF MEGHALAYA
AT SHILLONG.
WP(C) No. 197 of 2016
1. Smti. Meridalin Kharlyngdoh,
D/o Treling Marwein,
R/o Mawkyrwat, South West
Khasi Hills District, Meghalaya.
2. Smti. Lydia Florence Sutnga,
D/o Darling Suchiang,
R/o Jrisalein, Upper Chutwakhu,
Jowai, West Jaintia Hills District,
Meghalaya.
3. Smti. Sngurlinda Khongstia,
W/o Rapborlang Saiborn,
R/o Mawlai Nonglum, Block - 6,
East Khasi Hills District, Meghalaya.
4. Smti. Pynhunshisha P. Sutnga
D/o Venywell Pomblang,
R/o Pohktieh Nongthymmai,
Shillong, East Khasi Hills District,
Meghalaya.
5. Smti. Kanli Ymbon,
D/o Kihobi Sema,
R/o Sahsniang, West Jaintia Hills District,
Meghalaya. ....Writ Petitioners
- Versus -
1. The State of Meghalaya represented by
Chief Secretary, Shillong.
2. The Principal Secretary to the Govt. of Meghalaya,
Health and Family Welfare Department,
Meghalaya, Shillong.
3. The Secretary to the Govt. of Meghalaya,
Health and Family Welfare Department,
Meghalaya, Shillong.
4. The Director of Health Services (MI)
Meghalaya, Shillong.
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5. The Deputy Director of Health and Family
Welfare Department, (Admn), Meghalaya,
Shillong.
6. The Deputy Director of Health Services
(Nursing), Meghalaya, Shillong.
7. The Departmental Recruitment Committee
Headed by the Director of Health Services (MI),
Meghalaya, Shillong.
8. The Inquiry Committee headed by the
Chairman, Department of Health and Family
Welfare, Government of Meghalaya, Shillong.
9. The Chairman of the Health and Family
Welfare Department, Government of Meghalaya,
Shillong. ... Respondents.
BEFORE
THE HON'BLE MR JUSTICE SR SEN
For the Petitioner : Mr. H.L. Shangreiso, Adv.
For the Respondents : Ms. G. Deka, Sr. GA
Mrs. I. Lyngwa, GA
Date of hearing : 01.08.2017
Date of Judgment & Order : 01.08.2017
JUDGMENT AND ORDER (ORAL)
Heard Mr. H.L. Shangreiso, learned counsel for the petitioners as well as Ms. G. Deka, learned Sr. GA assisted by Mrs. I. Lyngwa, learned GA for the State.
2. The brief fact of the petitioner's case in a nutshell is that:
"In pursuance to the advertisement dated 11- 01-2013 for filing up the total 180 posts of non-bonded staff nurse under the Health and Family Welfare Department, Government of Meghalaya, Shillong, 811 applicants including 3 the writ petitioners had applied for the same and 392 candidates including the writ petitioners had appeared in the written examination conducted on 10th August 2013 by the respondent Departmental Recruitment Committee (in short selection authority). In the said test, only 15 candidates including the writ petitioners had passed successfully in securing more than 50% qualifying marks. The names of the present writ petitioners secured top slot in the select list on merit. Accordingly, the writ petitioners appeared for personal interview on 29th and 30th August 2013.
However, having noticed the inordinate in declaring the result of the said personal interview and publish the final select list on merit, the writ petitioners after running from pillar obtained the information from the PIO vide reply dated 18.01.2016 under R.T.I. Act, 2005 who informed them that on the basis of the impugned recommendation/minute dated 18-02-2014 forwarded by the respondent Inquiry Committee, the impugned Order dated 19-08-2014 has been taken by the respondent Chairman of Health and Family Welfare Department, Government of Meghalaya and held the above written test and personal interview as null and void and directed for fresh advertisement for the same posts of non-bonded staff nurse. The PIO further informed that the impugned actions has been taken on the ground that many candidates only secured less than qualifying marks of 50% in the above written test due to tough questions papers and in order to help to those failed candidates, the respondent selection authority in sou moto awarded "20 grace marks" so as to enable them to qualify for personal interview.
The above decision is highly arbitrary for the simple reason that the writ petitioners along with other 10 candidates (total 15) had admittedly secured more than 50% qualifying marks in the written test and without taking the benefit/assistant of another 20 grace marks, by virtue of their own merit, they successfully passed and rightly and effectively appeared for personal interview on 29th and 30th August 2013 and hence, their case deserve proper segregation from the case of those failed candidates. Besides, the impugned recommendation/minutes dated 18.02.2014 as well as the impugned order dated 19.08.2014 were taken by the respondent Inquiry Committee and the Chairman of Health and Family Welfare Department, Government of Meghalaya, Shillong even without issuing show cause 4 notice to defend themselves before resorting the above impugned adverse actions.
The post in question are still lying vacant and the respondents state is yet to advertise for appointment on competitive examination till date. Under the above circumstances, the writ petitioners is humbly and reasonably justified to file this writ petition before this Hon'ble Court under Article 226 of the Constitution of India and pray with folded hands that Your Lordship may be kind enough to direct the respondent selection authority to complete the selection process in declaring the final select list on merit and direct the respondent state to consider the case of the writ petitioners for an appointment against the posts already advertised as per law."
3. The learned counsel for the petitioners submits that the petitioners whose names are reflected in Serial Nos. 1, 3, 6, 7 and 10 annexed at Annexure-12 Page 62 of the writ petition have already secured the required qualified marks, so they should be segregated from the other candidates who have passed by receiving bonus marks. The learned counsel for the petitioners also pointed out to Annexure-20 and Annexure-21 which is the minutes of the meeting held on 7th February, 2014 and 18th February, 2014 in the office chamber of the Director of Health Services (MI).
On perusal of the said minutes referred above, it appears that out of 811(eight hundred eleven) candidates only 15(fifteen) candidates got 50% marks, however sou moto grace marks of 20 each was given to all the candidates and also mentioned that the basis for granting grace marks seems to have been taken in the meeting of the Departmental Committee for recruitment/appointment of non-bonded students to the post of Staff Nurse held on 22nd August, 2013, perhaps in order to allow the candidates to be declared successful in the written test, in order of merit. The minutes of the meeting are reproduced herein below for ready reference:
"MINUTES OF THE MEETING HELD ON 7TH FEBRUARY, 2014 & 18TH FEBRUARY, 2014 IN THE OFFICE CHAMBER OF THE DIRECTOR OF HEALTH SERVICES (MI).
A. Minutes of the meeting held on the 7th February, 2014 5 Members present:
1. Shri M.R. Synrem, IAS, Secretary, H&FW Deptt-
Chairman.......................................................
2. Shri. K.W. Marbaniang, IAS, Secretary, H&FW Deptt-Member..................................................
3. Dr. A. Dkhar, Director of Health Services(MI), Member Secretary...........................................
4. Dr(Mrs) L.L. Sawian, Director of Health Services(MCH&FW), Member..............................
The Committee constituted by the
Government under Notification No. Health
250/2007/Pt.II/3 dated 06.11.2013 to enquire into the news item captioned "Grace marks granted for Nurses Posts" appearing in Eastern Chronicle dt. 08-
10-2013 met in the office chamber of the DHS(MI), Laitumkhrah at 10:30 am on 7th February, 2014.
After scrutinizing all the answer papers & tabulation sheets, the following facts emerged:-
1. It was found that initially only 15 (fifteen) candidates out of a total of 811 (eight hundred & eleven) candidates were found to have secured the pass mark of 50% and above.
2. Suo Moto grace marks of 20 each was given to all the candidates.
3. The basis for granting grace marks seems to have been taken in the meeting of the Departmental Committee for recruitment/appointment of non-bonded students to the post of Staff Nurse held on 22nd August, 2013, perhaps in order to allow the candidates to be declared successful in the written test, in order of merit.
The Committee decided to meet again on 18th February, 2014 at 10:30 am to deliberate further on the matter before making a final report."
"B. Minutes of the meeting held on the 18th February, 2014 Members present:
1. Shri M.R. Synrem, IAS, Secretary, H&FW Deptt-
Chairman.......................................................
2. Shri. K.W. Marbaniang, IAS, Secretary, H&FW Deptt-Member..................................................
3. Dr. A. Dkhar, Director of Health Services(MI), Member Secretary...........................................
4. Dr(Mrs) L.L. Sawian, Director of Health Services(MCH&FW), Member..............................
The Committee again met on the scheduled date, i.e. 18th February, 2014 at 10:30 am in the office chamber of the DHS(MI), Shillong. After a detailed and threadbare discussion the following decisions were arrived at:
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1. The question papers set for the examination appears to be very tough and hence perhaps the very large number of unsuccessful candidates.
2. The Committee therefore suggests for re-
advertisement of the posts of GNM and to conduct fresh examination (written & personal interview).
3. The Examination Board to be headed by the DHS(MI). Question papers to be set and decided by the Recruitment Committee and results will be based on the total qualifying marks obtained by the candidates in the examination so conducted."
As a result, the learned counsel for the petitioners submits that, those candidates who obtained 50% marks without any bonus marks should be segregated.
4. The learned Sr. GA for the State admitted that there are some mistakes that have been committed on the part of the Government authority and the Government is ready to conduct a fresh examination.
5. I have also perused the advertisement which is at Annexure-3 of the writ petition and the same is reproduced herein below:
"Advertisement The Director of Health Services (MI) Meghalaya, Shillong invites application form eligible non-bonded candidates who are bonafide citizens of India for the posts of Staff Nurse.
1. No. of Post - 180 (tentative)
2. Qualification - Possessing General Nursing and Midwifery Certificate/P.G. Diploma in Nursing/B.Sc Nursing from recognized Institution/University & registered under Meghalaya Nursing Council.
3. Additional - Knowledge of Khasi, Jaintia & Garo languages.
4. Age - 18 to 27 yrs. Upper age limit relaxable by 5 yrs in case of SC/ST Candidates.7
5. Scale of Pay - Rs. 11300-280-13260-EB-360- 16500-500-22000/-
Last date to submit the application form is 15 th February, 2013 date of interview to be notified later.
There shall be reservation in favour of candidate belonging to SC/ST in accordance with the reservation Policy of Government.
The application form to be submitted to the Office of the undersigned.
Sd/-
Director of Health Services (MI) Meghalaya, Shillong."
6. After hearing the submissions advanced by the learned counsel for the parties and after going through the advertisement referred above, I find that the advertisement is totally defective and also unclear. In the said advertisement, it shows that the number of posts is 180, but nothing is mentioned with reference to the syllabus nor is there anything mentioned with regards to the number of posts reserved for SC/STs and other backward classes, further the bench marks for these classes have also not been mentioned so also the number of posts reserved for general category. Therefore, I find that that the advertisement itself is defective. An advertisement is to initiate the process of an interview or examination and its purpose is to serve as a rule or guideline in conducting an examination. We must remember that rules are framed before the game starts and are not to be changed or altered in the mid or end of the game. Therefore, I find that the entire selection was very much on the blink and it is also not clear whether the examining authority has any power to give the bonus marks. Therefore, since the advertisement itself is faulty, the said advertisement is hereby set aside as well as the entire selection process. The Government is directed to call for a fresh examination condoning the age of those candidates who had earlier sat for the examination; mentioning the detailed syllabus, number of posts allotted to each category and their respective bench marks and they are further directed to choose the best of the best candidate as they are to work in the Health Department and also further directed to follow strictly the 8 common Judgment and Order dated 19.07.2017 passed by this Court in WP(C) No. 103 of 2016, WP(C) No. 82 of 2016, WP(C) No. 85 of 2016 and WP(C) No. 102 of 2016.
7. With this observation and direction the writ petition is dismissed and stands disposed of.
JUDGE D. Nary