Meghalaya High Court
Shri. Nikiru War & Anr. vs . State Of Meghalaya & Ors. on 19 March, 2021
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 75 of 2015 with
WP(C) No. 76 of 2015
Date of Decision: 19.03.2021
Shri. Nikiru War & Anr. Vs. State of Meghalaya & Ors.
Smti. Meskhera Dkhar & Anr. Vs. State of Meghalaya & Ors.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. Philemon Nongbri, Adv.
For the Respondent(s) : Mr. A.H. Hazarika, GA. for R 1-4.
Mr. H.L. Shangreiso, Adv. for R 5, 6, 8, 9 & 10.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. These two sets of petition being identical and pertaining to the same subject matter, it is deemed expedient and convenient to take them up together and to dispose the same vide this common judgment and order.
2. Vide advertisement No DSC.3/ADVT/2012/14 dated Jowai, the 1st November, 2012, the Office of the Respondent No. 4 has issued an advertisement for recruitment to various posts in different State Government offices/departments in West Jaintia Hills District, which posts includes 6(six) posts of Sericulture Demonstrator lying vacant in the office of the Respondent No. 3.
13. In the said advertisement dated 01.11.2012, for the post of Sericulture Demonstrator, the minimum educational qualification and other qualifications prescribed is Matriculate with 15th Months' Certificate Course in Sericulture.
4. While the said advertisement dated 01.11.2012 was still subsisting, Respondent No. 4 issued a Corrigendum to the same vide Office Corrigendum No. DSC.3/ADVT/2012/18 dated Jowai the 28th November 2012 to the extent that the original advertisement was modified to increase the number of posts of Sericulture Demonstrator from 6 to 10 with minimum qualification of 15(fifteen) months' course at Sericulture Training Institute Ummulong with two years' experience.
5. The Petitioners herein in response to the said advertisement applied for the said post of Sericulture Demonstrator even though their qualification is matriculation having also completed the 15(fifteen) months' course training in Sericulture Training Institute Ummulong, West Jaintia Hills District. The Petitioners were then allowed to appear in the aptitude written test which was held on 10.01.2014 and having cleared the same, they were called to appear in the personal interview held on 07.07.2017.
6. The District Selection Committee (DSC) published the final result on 21.07.2014 and 12(twelve) candidates who have qualified have been recommended for appointment by Respondent No. 3 vide letter dated 28.07.2017. In the said result and recommendation, the name of Petitioner Shri Nikiru War figured at Sl. No. 2, that of Petitioner Smti Lasankiru Manners at Sl. No. 7, Petitioner Smti Meskhem (Meskhera) Dkhar at Sl. No. 10 and Petitioner Smti Rafflecia Challam at Sl. No. 11.
7. The Petitioners on 20.08.2014 submitted a representation to Respondent No. 2 seeking intervention in the matter with a request to issue the appointment order in their favour, however, till date no appointment order was issued to them in terms of the recommendation dated 28.07.2014. However, it is learnt that some persons have been appointed on an officiating 2 and temporary basis, thus depriving the Petitioners of their rightful entitlement.
8. Being aggrieved by the action of the official Respondents, the Petitioners have preferred these two writ petitions with similar prayer before this Court for a direction to be issued upon the Respondents to appoint them to the post of Sericulture Demonstrator and also to set aside and quash the appointment of the private Respondents herein who are said to be occupying the said posts in an officiating capacity.
9. At this juncture, it may be mentioned that this matter has come before this Court the second time around, the first being the disposal of the same vide order dated 04.11.2016 whereby, this Court has dismissed the prayer of the Petitioners, but has however also directed that Respondent No. 11 to 16 therein may be removed from service since they are adhoc appointees.
10. The Petitioner herein being aggrieved and dissatisfied with the said order of the Hon'ble Single Judge dated 04.11.2016 had preferred an intra- Court appeal being W.A No. 90/2016 and the Appellate Court vide order dated 20.06.2017 had disposed of the appeal inter alia, by remanding the matter for reconsideration by this Court. The order as regard the Respondent No. 11 to 16 have however not been disturbed by the Appellate Court and the appointment of Respondent No. 5 to 10 on the post of Sericulture Demonstrator was also not interfered with and stand affirmed. The Petitioners were however advised to amend the writ petition for effective consideration by this Court.
11. Accordingly, the Petitioners moved for amendment of their respective writ petitions which was allowed. In the amended writ petition, the prayer portion was amended to inter alia, pray that the impugned Corrigendum dated 28.11.2012 to the effect of enhancing the minimum qualification be quashed.
312. Heard Mr. Philemon Nongbri, learned Counsel for the Petitioners who has submitted that the main issue canvassed by the Petitioners herein is that by way of corrigendum dated 28.11.2012 whereby the minimum qualification required for the post of Sericulture Demonstrator, apart from the criteria of 'matriculation with 15(fifteen) months' certificate course' has been enhanced to also include two years' experience, is totally illegal in the absence of any rules governing the service and providing for the same.
13. Learned counsel for the Petitioners has further submitted that changes by way of corrigendum is permissible, however any change in criteria putting any one in disadvantage is not permissible in law. The rule of the game cannot be changed after the game is under process. The case of Rakesh Kumar v. High Court of Delhi and Anr: (2010) 3 SCC 104 at paragraphs 14 to 18 and also the case of State of Orrisa v. Mamata Mohanty: (2011) 3 SCC 436 at paragraphs 50 and 51 has been cited to prove this point.
14. On the question of estoppel, the learned counsel has submitted that the contention of the Respondents that after taking part in the selection process, the Petitioners cannot come before this Court to challenge the process, thereby invoking the doctrine of estoppel. However, it is submitted that the doctrine of estoppel would be applicable if a person has taken part in the process and fails, he cannot come around and challenge the process. In this case, this is distinguishable, inasmuch as, the Petitioners herein have not failed, but have been declared successful after being allowed to participate in the process.
15. It is also submitted that there is no bar by the doctrine of estoppel to challenge the process when glaring illegality have been committed in the procedure. In this case, the Petitioners were the successful candidates, but for the impugned corrigendum, their appointment have been denied. The case of Ramjit Singh Kardam & Ors v. Sanjeev Kumar & Ors: (2020) SCC Online SC 448 at paragraphs 39-41 have been relied upon in this regard.
416. On a query by this Court, Mr. Nongbri has submitted that in the absence of rules, but the department has to function, then the Government by notification can prescribed the minimum qualification in the notification. But in this case, neither are there any rules, nor was there any notification prescribing the minimum qualification. The prescription of the minimum qualification and the subsequent issuance of the said corrigendum was done at the District level unilaterally. Recently, the Respondents have brought out an advertisement, wherein the same post of Sericulture Demonstrator was sought to be filled up and there is no minimum qualification of two years required. The case of Ramesh Prasad Singh v. State of Bihar & Ors: (1978) 1 SCC 37 at paragraph 5 was referred to in this regard.
17. Per contra, Mr. A.H. Hazarika, learned GA has submitted that the advertisement No. DSC.3/ADVT/2012/14 dated Jowai, the 1st November, 2012, was for various posts in different departments including the Sericulture Department, for which at that point of time there were vacancies for 6(six) posts of Sericulture Demonstrator. The last date for submission of application was on 17.12.2012. In the meantime, the authority concerned has issued the said corrigendum dated 28.11.2012 wherein at paragraph 3 of the same, the number of vacancies in the post of Sericulture Demonstrator was increased to 10(ten) from the original 6(six) and minimum qualification of 15(fifteen) months' course training, Sericulture Training Institute Ummulong with 2 years' experience was added indicating that the requisite qualification was modified to the extent that two years' experience is now required above the benchmark set vide the original advertisement dated 01.11.2012.
18. Learned GA has also submitted that the Petitioners did not possess the requisite qualification as per the corrigendum and as such, their candidature was not accepted for appointment.
19. It is also further submitted that the District Selection Committee, Jowai is an independent autonomous body with its own set of procedure as far as conduct of written and aptitude test is concerned and has accordingly allowed 5 even the unqualified candidates including the Petitioners herein to participate in the process and has also declared the results on 21.07.2014, whereby 12(twelve) candidates were recommended for appointment as Sericulture Demonstrator including the Petitioners herein. It is however contended that the Appointing Authority in the Sericulture and Weaving department is not bound to accept the recommendation made by the DSC, more particularly if unqualified candidates were recommended.
20. The next limb of argument advanced by Mr. Hazarika is that the Petitioners were fully aware of the fact that the required qualification for the said post of Sericulture Demonstrator is 15(fifteen) months' training course in Sericulture and two years' experience, however they did not raise any objection at the relevant time and has submitted their application forms as follows: -
1. Shri Nikiru War. - 05.12.2012
2. Smti Lasankiru Manners - 17.12.2012
3. Smti Meskhera Dkhar - 14.12.2012
4. Smti Rafflecia Challam - 13.12.2012 which applications were filed after the said corrigendum has been issued. The case of Vijendra Kumar Verma v. Public Service Commission, Uttarakhand & Ors: (2011) 1 SCC 150 at paragraphs 24, 27, 28, 29 & 31 was referred to by the learned GA in this regard.
21. Yet another submission made by Mr. Hazarika is that even assuming, but not admitting that this Court accepts that contention of the Petitioners that the rule of the game cannot be changed after the game is over and that change of criteria in the midst of selection process is not permissible and consequently, the said corrigendum is set aside and quashed, then what remains is that the original advertisement with the number of posts at 6(six) will have to be accepted for which, from the set of four Petitioners in these proceedings, only the Petitioner figuring at Sl. No. 2 in the final results for the post of Sericulture Demonstrator issued by the DSC, West Jaintia Hills District vide notification No. DSC.4/2013/17, dated Jowai the 21 st July 2014 6 will be eligible for appointment and the other Petitioners would have no case at all.
22. On consideration of the submissions and contention of the parties, what is to be considered by this Court is whether the Respondents could have issued the impugned corrigendum dated 28.11.2012 when the selection process has already been initiated by the said advertisement dated 01.11.2012 and whether by such process the rules of the game have been changed after the game is over thereby putting the Petitioners herein at a disadvantageous position to the extent that their appointment have not been affected till date and as such, an illegality have been committed by the Respondents.
23. Facts mentioned above reiterated would show that the criteria mentioned in the said advertisement dated 01.11.2012 has enabled the Petitioners herein to qualify for application for the said post of Sericulture Demonstrator. However, by the said corrigendum dated 28.11.2012, the criteria have been revised to show the addition of two years' experience required apart from the basic educational qualification and the completion of 15(fifteen) months' training at the Sericulture Training Institute Ummulong. The number of posts has also increased from 6(six) to 10(ten). This, according to the Petitioners is the aspect of changing the rules of the game after the game is over which is not permissible in law as the Petitioners have been put at a disadvantage. In the case of Ramjit Singh Kardam (supra) relied upon by the learned counsel for the Petitioners, particularly at paragraphs 39 to 41, where the Apex Court had discussed the principle of estoppel as applicable to the Petitioners therein, it is seen that the Apex Court has held that the petitioners who had participated in the selection are not estopped from challenging the selection in the facts of the present case, since the selection criteria which was followed was never notified till the declaration of final result, whereas in this instant case, the revised selection criteria was known to the Petitioners herein even before they had filed their application forms and as such, the 7 above judgment would not help the Petitioners herein as far as application of the principle of estoppel is concerned.
24. It is also pertinent to mention herein that the Petitioners have filed their applications forms on dates after the said corrigendum has been issued, i.e between 05.12.2012 to 17.12.2012. The learned counsel for the Petitioners on a query by this Court have not been able to specifically state as to whether the Petitioners were aware or not aware of the said corrigendum at the time of filing their application forms. Inference therefore has to be made that the Petitioners were aware of the said corrigendum at the relevant time. On perusal of the said corrigendum it is also noticed that wide publicity has been given to the same. There is nothing to prevent the Petitioners to assail the said corrigendum before the competent authorities before the last date fixed in the said advertisement which is 17.12.2012, but no action was taken at the relevant time.
25. On the above premise, what is required to be ascertained is whether the Petitioners knowing fully well that they are not qualified for the post for lack of two years' experience, yet have taken a chance and took part in the selection process are estopped from raising any objection as regard the selection process. The authority cited by the learned GA in this regard i.e the case of Vijendra Kumar Verma (supra) at paragraph 24 of the same has relevance in this connection, the same is reproduced herein below as:
"24. When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning 8 thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction."
26. Though it is not a disputed fact that the Petitioners even while taking part in the selection process have come out successful, as submitted by the learned GA, their appointment could not be affected as they are not qualified, there is no legal duty cast upon the Appointing Authority to appoint them and the Petitioners have no legal right to be appointed as the power of appointment is the prerogative of the Appointing Authority.
27. In the case of Jai Singh Dalal & Ors v. State of Haryana & Anr: 1993 Supp (2) SCC 600 the Hon'ble Supreme Court dealing with a similar case as the present one, has at paragraph 7 held as under: -
" 7. ..... An examination was held by the HPSC and 40 candidates passed the said examination with the required minimum 45 per cent marks. Their names were published in the Government Gazette. The State Government, the appointing authority, made seven appointments out of the said list in the order of merit. Respondents, who ranked 8, 9 and 13 respectively in that list, did not get an appointment although there were vacancies. The reason for not appointing the respondents was that in the view of the State Government, which was incidentally identical to that of the High Court, candidates getting less than 55 per cent marks in the examination should not be appointed as Subordinate Judges in the interest of maintaining high standards of competence in judicial service. Respondents 1 to 3 challenged this decision on the ground that the State Government was not entitled to pick and choose only seven out of them for appointment, because to do so tantamounted to prescribing a standard which was not contemplated. The State Government on the other hand contended that the rules did not oblige them to fill in all the vacancies and it was open to them to appoint the first seven candidates in the interest of maintaining high standards. It was further contended that there was no question of picking and choosing and since the rules did not preclude it from selecting from the list the candidates for appointment to set a higher 9 standard, the State Government could not be said to have infringed any legal right of the selectees for appointment. In the background of these facts this Court came to the conclusion that the mere fact that the candidates were chosen for appointment in response to the advertisement did not entitle them to appointment. To put it differently, no right had vested in the candidates on their names having been entered on the select list and it was open to the Government for good reason not to make the appointments therefrom and fill in the vacancies. In a recent decision in Shankarsan Dash v. Union of India,(1991) 3 SCC 47 the Constitution Bench of this Court reiterated that even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to appointment against the existing vacancies. It was pointed out that ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. The State is under no legal duty to fill up all or any of the vacancies by appointing candidates selected for that purpose. Albeit, the State must act in good faith and must not exercise its power mala fide or in an arbitrary manner. The Constitution Bench referred with approval the earlier decision of this Court in Subash Chander. Therefore, the law is settled that even candidates selected for appointment have no right to appointment and it is open to the State Government at a subsequent date not to fill up the posts or to resort to fresh selection and appointment on revised criteria..."
28. In view of the above, this Court is of the considered opinion that the Petitioners herein have not been able to make out a case for writ of mandamus and accordingly, their respective petitions are hereby dismissed.
29. Before parting with this case, this Court has noted the fact that the Petitioners herein have brought on record the subsequent development in this case, inasmuch as, vide Advertisement No. DSC.3/ADVT/2012.117 dated Jowai, the 3rd November, 2020, the Deputy Commissioner & Chairman, District Selection Committee, West Jaintia Hills District, Jowai had called for applications to various posts, including 11(eleven) posts of Sericulture Demonstrator with the qualification and experience required being Matriculate with 15(fifteen) months' Certificate Course Training in 10 Meghalaya Sericulture Training Institute, Ummulong, West Jaintia Hills District, the last date being 11.12.2020.
30. This instant case having travelled for almost six years, the Petitioners have lost precious time to enable them to be considered for alternative employment within the permissible age limit in the event of the case going against them, this Court moulding the reliefs suitably, hereby directs the Respondents herein to consider their fresh application to suitable posts on being duly qualified by relaxation of the age limit if any, such application is filed within one year from today.
31. In the light of the foregoing reasons, these instant writ petitions stand disposed of.
Judge Meghalaya 19.03.2021 "D. Nary, PS"
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