Gauhati High Court
Ms Lalrinkimi Tochhawng vs Smti K. Vanlalhmangaihi And 4 Ors on 17 December, 2019
Equivalent citations: AIRONLINE 2019 GAU 649, 2020 LAB IC 1145
Bench: Ajai Lamba, Achintya Malla Bujor Barua
Page No.# 1/17
GAHC010001802019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA 8/2019
1:MS LALRINKIMI TOCHHAWNG
SELECTION OFFICER, MIZORAM UNIVERSITY TANHRIL , AIZAWL, 796009
VERSUS
1:SMTI K. VANLALHMANGAIHI AND 4 ORS
D/O K. VANLALRUATA. R.O LENGPUI, MAMIT DISTRICT, MIZORAM, 796421
2:SMTI. LALDINSANGI
D/O HRANGZIKA R/O ELECTRIC VENG
AIZAWL. MIZORAM 796007
3:THE MIZORAM UNIVERSITY
REPRESENTED BY ITS VICE CHANCELLOR
TANHRIL
AIZAWL
796009
4:THE REGISTRAR
MIZORAM UNIVERSITY
TANHRIL
AIZAWL. 796009
5:THE JOINT REGISTRAR
MIZORAM UNIVERSITY
TANHRIL
AIZAWL. 79600
Advocate for the Petitioner : MR. K N CHOUDHURY
Page No.# 2/17
Advocate for the Respondent : MR A D CHOUDHURY , (R-1 AND 2)
Linked Case : WA 35/2019
1:THE MIZORAM UNIVERSITY AND 2 ORS
(A CENTRAL UNIVERSITY ESTABLISHED IN THE YEAR 2000 BY AND ACT
OF PARLIAMENT) REPRESENTED BY ITS VICE CHANCELLOR TANHRIL
AIZAWL.
2: THE REGISTRAR
MIZORAM UNIVERSITY
TANHRIL
AIZAWL
3: THE JOINT REGISTRAR
MIZORAM UNIVERSITY
TANHRIL AIZWAL
VERSUS
1:SMT K. VANLALHMANGAIHI AND 3 ORS
D/O K. VANLALRUATA
R/O LENGPUI
MAMIT DIST.
MIZORAM
2:SMT. LALDINSANGI
D/O T. HRANGZIKA
R/O ELECTRIC VENG
AIZAWL
3:MS LALRINKIMI TOCHHAWNG
SECTION OFFICER
MIZORAM UNIVERSITY
TANHRIL
AIZWAL
4:SH. LALNUNMAWIA KHIANGTE
SECTION OFFICER
MIZORAM UNIVERSITY
TANHRIL
AIZWAL
Advocate for the Petitioner : MR. I CHOWDHURY SR ADV
Page No.# 3/17
Advocate for the Respondent : MR. K N CHOUDHURY
(R-3 AND 4)
Linked Case : WA 9/2019
1:SRI LALNUNMAWIA KHIANGTE
SECTION OFFICER
MIZORAM UNIVERSITY
TANHRIL
AIZWAL
PIN- 796009
VERSUS
1:SMTI K. VANLALHMANGAIHI AND 4 ORS
D/O- K VANLALRUATA
R/O- LENGPUI
MAMIT DIST
MIZORAM
PIN- 796421
2:LALDINSANGI
D/O- T HRANGZIKA
R/O- ELECTRIC VENG
AIZAWL
MIZORAM
PIN- 796007
3:THE MIZORAM UNIVERSITY
REP. BY ITS VICE CHANCELLOR
TANHRIL
AIZAWL
PIN-796009
4:THE REGISTRAR
MIZORAM UNIVERSITY
TANHRIL
AIZAWL
PIN- 796009
5:THE JOINT REGISTRAR
MIZORAM UNIVERSITY
TANHRIL
AIZAWL
PIN- 796009
Page No.# 4/17
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : MR A D CHOUDHURY
(R-1 AND 2)
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AJAI LAMBA
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT & ORDER (CAV)
(AM Bujor Barua, J.)
17.12.2019
Heard Mr. KN Choudhury, learned senior counsel for the appellants in WA No.8/2019 and
WA No.9/2019 as well as Mr. I Choudhury, learned senior counsel for the appellants in WA
No.35/2019. Also heard Mr. AD Choudhury, learned counsel for the respondents No.1 and 2 in
the appeals.
2. The respondents No.1 and 2 Ms. K Vanlalhmangaihi and Ms. Laldinsangi, by preferring
WP(C)No.154/2016 had assailed the orders, both dated 14.06.2016 of the Registrar, Mizoram
University by which Ms. Lalrinkimi Tochhawng, appellant in WA No.8/2019 and Sh.
Lalnunmawia Khiangte appellant in WA No.9/2019 were appointed as Section Officer in the
Mizoram University.
3. Earlier an employment notice dated 24.02.2014 was issued by the Mizoram University
inviting applications, amongst others for one post of Section Officer. Although 48 applications
were received, but as they were processed by following a strict interpretation of the
recruitment rules as well as the eligibility conditions provided in the employment notice, only
three of the applicants were found to be eligible. Even out of the three, none could qualify in
the written test.
Page No.# 5/17
4. Consequent thereof, the post of Section Officer was re-advertised as per the
employment notice dated 15.09.2015 and the eligibility conditions provided are as follows:
Sl.No. Name of No.of Post/ Post Upper Educational/Desirable/Oth
Post/Pay Code Age Limit er Qualifications
Band + Reservation
Grade Pay
1. Section Officer 1 (UR) SOM Not Essential:
exceeding
PB-2, Rs.9300- (i) Bachelor's degree from a
34,800 with GP 35 years recognized University with working
Rs.4,600 knowledge of computer
applications.
(ii) 3 years' experience as Assistant
or equivalent in the PB-2 Rs.9300-
34800 with GP Rs.4200 in the
Central/State Government/
PSUs/Statutory/ Autonomous
Bodies;
OR
8 years' experience as UDC or
equivalent in the PB-1 Rs.5200-
20200 with GP Rs.2400 in the
Central/ State
Government/PSUs/Statutory/
Autonomous Bodies
Desirable:
Master's degree from a recognized
Institution/University.
Page No.# 6/17
5. Although only one post of Section Officer was notified, but in the meantime, on
11.12.2015 one of the incumbents, in the post of Section Officer was promoted to a next
higher post, resulting in the availability of one further vacancy. In the resultant situation, the
selection process initiated by the employment notice of 15.09.2015 was made applicable for
two of the vacancies of Section Officer. By a notification dated 18.05.2016, the list of
candidates who qualified in the written examination for the two posts of Section Officer was
declared, wherein the names of the two appellants as well as the respondents No.4 and 5
were included. Thereupon, the successful candidates in the written test were subjected to the
interview process and thereupon on the recommendation of the selection committee, the two
appellants namely, Ms. Lalrinkimi Tochhawng and Sh. Lalnunmawia Khiangte were appointed
as Section Officer in the Mizoram University, as per the two orders, both dated 14.06.2016 of
the Registrar Mizoram University.
6. In writ petition WP(C)No.154/2016, the respondents No.1 and 2 took the stand that the
appellants were ineligible to participate in the selection process, and, therefore, they ought
not to have been allowed to go through the written examination. According to the
respondents No.1 and 2, the appellant Ms. Lalrinkimi Tochhawng worked as an Assistant in
the pay scale of PB-1 of Rs.5200/- - 20,200/- + GP of Rs.2400/-, but she did not have the
experience of 8(eight) years in the said pay scale and hence did not meet the eligibility
criteria provided in employment notice dated 15.09.2015. In respect of the appellant Sh.
Lalnunmawia Khiangte, a stand was taken that from the engagement cards of hers it is
discernible that she had never drawn a pay in the scale of PB-II of Rs.9300/- - 34,800/- with
GP of Rs.4200/-.
As the two appellants did not have any experience of working as an Assistant in the pay
scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/- in any Central/State
Government/PSUs/ Statutory/Autonomous Bodies, as per the eligibility criteria given in
employment notice dated 15.09.2015, the participation of the appellants in the selection
Page No.# 7/17
process and their selection, as well as their appointment by the orders dated 14.06.2016
were illegal and unsustainable.
In the circumstances, if the selection and appointment of the appellants are illegal and
unsustainable, it would be the respondents No.1 and 2, who would be candidates next in the
line in order of merit.
Accordingly, a claim was made that upon setting aside the appointment of the
appellants, the respondents No.1 and 2 be appointed.
7. The Mizoram University in their affidavit-in-opposition in paragraph 8 took the following
stand:
"8. That with regard to the statements made in paragraph No.7 of the writ petition, I
say that one post of Section Officer was advertised on 24 th February, 2014. Out of the 48
applicants, the Screening Committee considered only 3 applicants eligible to appear for the
Competitive Written Examinations. The Screening Committee had screened-in those
candidates who were on regular basis only. However, none of the eligible candidates obtained
the minimum qualifying marks to appear for the interview.
Therefore, the post of Section Officer was re-advertised on 15 th September, 2015. Out of
the 103 applicants, 33 applicants were found eligible to appear for the Competitive Written
Examinations.
The Screening Committee had screened-in-the 33 candidates, taken into account the
nature of works, duties and responsibilities as well as the corresponding post they are
holding. It may be indicated that the '3 years experience' idealized in the MZU Cadre
Recruitment Rules, 2013 is inclusive of 'any experience' in the clerical line; at the level of
Assistant or equivalent posts.
Therefore, as per the prerogative of the Screening Committee empowered under
Appendix I(A) of Mizoram University Cadre Recruitment Rules, 2013, the number of years of
experience possessed by the candidates at Assistant and equivalent level in Central/State
Government/PSU/Statutory and Autonomous body were liberally screened-in. As such, the
Screening Committee had screened-in candidates with 'regular', 'contractual', 'co-terminus',
'muster roll' and 'consolidated pay' inclusive of bank service and those 'no longer in service'.
..........................................................................................................
Despite the fact that the above-mentioned candidates were on "non-regular basis", and had not enjoyed 'Pay Band nor Grade Pay', however, the nature of works, duties, functions, Page No.# 8/17 and responsibilities against their corresponding posts were considered equivalent to that of Assistant level or higher. Hence, the Screening Committee had considered eligible to appear for the competitive written examination to the post of Section Officer. Further, it may be highlighted that the pay of Assistant and equivalent posts in Mizoram University are placed in PB-2, 9300-34800 with 4200 GP, whereas the Assistant Grade and equivalent posts in Government of Mizoram are placed in PB-2, 9300-34800 with 4400 GP. Likewise, the pay of UDC and equivalent posts in Mizoram University are placed in PB-1, 5200-20200 with 2400 GP, whereas the pay of UDC and equivalent posts in Government of Mizoram are placed in PB-2, 9300-34800 with 4200 GP.
....................................................................................................... Given the above, it is amply clear that the Screening Committee had screened-in the aforesaid candidates based on the Government of India pay scale of Assistant at PB-2, 9300-34800+4200 GP and consequentially had reckoned their service as 3 years which in effect could have altered their candidacies to their disadvantages; had the Screening Committee chosen to apply the Government of Mizoram norms / policy wherein PB-2, 9300-34800+ 4200 GP is of the level of UDC and equivalent posts, and could have debarred their candidacies as none of the aforesaid candidates have rendered 8 years experience as per MZU Cadre Recruitment Rules, 2013.
As such, the case of Petitioner No.1, K.Vanlalhmangaihi, read Sl.No.6 of the above-said can be inferred as 'NOT' having the requisite experience of 8 years at the level of UDC of equivalent.
............................................................................................ It may further be indicated that, had the Screening Committee been stringent like the previous recruitment, all the 'non-regular candidates' and 'no longer in service', including Petitioner No.1, who was a 'contractual' employee and Petitioner No.2, Laldinsangi who was a 'contractual employee' with 'no longer in service' would have been obviously screened-out. Therefore, the Screening Committee, keeping in mind the unavailability for selection in the previous recruitment and the urgent need for filling the vacant post of Section Officers, had screened-in the candidates with leniency without contravening the MZU Cadre Recruitment Rules, 2013.
As such, the Screening Committee, without partiality, had primarily focused on the nature of works, duties and responsibilities as a factor for determining the eligibility criteria for screening the candidates' experiences. Accordingly, candidates having experiences at the level of Assistant or equivalent or higher posts for 3 years; and having experiences at the level of UDC or equivalent for 8 years, irrespective of regular or temporary, in-service as well as no longer in service, inclusive of co-terminus under project work, contractual and muster roll employees, consolidated pay, Bank service were liberally screened-in."
8. The stand of the Mizoram University in a nutshell was that as a strict interpretation of the rules and the eligibility criteria in the employment notice was followed in the earlier round Page No.# 9/17 of selection process, it did not lead to any success as no candidate could be found who could fulfill the required criteria. In order to avoid a repeat of the situation, a more lenient approach was taken in the instant selection process by also including such candidates who were in a regular, contractual co-terminus, muster roll, consolidated pay inclusive of bank services and those who were also no longer in service for the purpose of evaluating the fulfillment of the eligibility criteria.
A further stand was also that although some of the candidates were serving on a non- regular post and had not enjoyed the required pay band or grade-pay, however, the nature of the work, duties, functions and the responsibilities of their respective posts where they were serving was taken into consideration for arriving at a conclusion as to whether they had the required experience of an Assistant or its equivalent.
9. In the affidavit of the Mizoram University, a further stand was taken that the respondent No.1 Ms. K Vanlalhmangaihi was a contractual employee on co-terminus basis in the KVK run by the Government of Mizoram with the assistance of the ICAR where she was initially appointed as a Superintendent-cum-Accountant. Subsequently, by the Notification dated 15.11.2013 of the Principal Secretary to the Government of Mizoram in the Agriculture Department, the post of Superintendent-cum-Accountant was re-designated as Assistant, in the pay scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/-, but subject to the condition that they are not to be treated as equal in rank and status with that of an Assistant under the Government of Mizoram.
In respect of the respondent No.2 Ms. Laldinsangi, a stand was taken that she was appointed as an Assistant Engineer on a contractual basis in NEILIT.
10. Writ petition WP(C)No.154/2016 was given its final consideration by the judgment and order dated 16.12.2018. The learned Single Judge arrived at a conclusion that from the eligibility criteria provided in the employment notice dated 15.09.2017 and in the Mizoram University Cadre Recruitment Rules (Non-Teaching) 2013 (for short, Rules of 2013) it can be inferred that the common thread between the word 'Assistant' and 'equivalent' appearing in Page No.# 10/17 the employment notice is the scale of pay given therein which is PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/-. Accordingly, a view was taken that to be eligible for the post of Section Officer, as required under the employment notice dated 15.09.2015, the person must have worked as an Assistant or in another equivalent post, both of which should be having a scale of pay of pay scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/- and the persons concerned should have been enjoying the said scale of pay.
Accordingly, it was held that as the appellant Ms. Lalrinkimi Tochhawng had her experience in the pay scale of PB-1 Rs.5200/- - Rs.20200/- with grade pay of Rs.2400/-,which was less than the pay scale prescribed in the eligibility conditions, therefore, she did not have the required qualification for the post of Section Officer. Similarly with regard to the appellant Sh.Lalnunmawia Khiangte it was concluded that though the scale of pay of a Computer Operator might have been PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/-, the appellant having worked on daily wage basis as a muster roll could not have been paid the prescribed pay scale. However the said appellant never worked as an Assistant and was only a Computer Operator on muster roll basis. As the appellant was not paid the scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/-, she also did not have the essential minimum qualification required for the post of Section Officer.
11. Further consideration was also given in the impugned judgment that although only one post of Section Officer was notified in the employment notice, the Mizoram University could not have filled up two posts of Section Officer. Although reliance was placed by the appellants on the pronouncements of the Supreme Court in Prem Singh and Others Vs. Haryana State Electricity Board and Others reported in 1996 4 SCC 314 where a lenient view was taken as regards the number of posts than that were advertised, but the learned Single Judge by relying upon the pronouncement of the Supreme Court in Mukul Saikia and Others Vs. State of Assam and Others reported in (2009) 1 SCC 386 and Rakhi Rai and Others Vs. High Court of Delhi and Others reported in (2010) 2 SCC 637, arrived at a conclusion that filling up of two posts of Section Officers where only one post was notified was illegal and unsustainable.
Further conclusion that was arrived at by the learned Single Judge was that the respondent No.1 Ms. K Vanlalhmangaihi had worked in the post of Superintendent-cum- Accountant in the KVK under the Directorate of Agriculture in the scale of pay of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/- and she had already completed 7 years of service as on October 2015 and there was nothing in the employment notice dated 15.09.2015 which Page No.# 11/17 disqualified her from being appointed to the post of Section Officer. As regards the appellant Ms. Laldingsangi it was concluded that she served as an Assistant Engineer which is equivalent to the post of Assistant in the scale of pay of Rs. PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/-, therefore, satisfies the qualification for the post of Section Officer as required in the employment notice dated 15.09.2015 and further that a person who was working in the teaching line would not be barred from being appointed as a Section Officer, although the work of Section Officer may be clerical in nature.
12. Upon such conclusion being arrived at, the learned Single Judge by the judgment dated 16.12.2018 had set aside the appointment orders dated 14.06.2016 of the appellants and the Mizoram University was directed to consider the respondents No.1 and 2 along with other remaining eligible candidates against one notified post of Section Officer pursuant to the employment notice dated 15.09.2015 and if desirable, the second post of Section Officer be filled up by issuing fresh advertisement for the purpose.
13. Being aggrieved by the judgment and order dated 06.12.2018, the Intra Court Appeal WA No.8/2019 had been preferred by the appellant Ms. Lalrinkimi Tochhawng, WA No.9/2019 by the appellant Sh. Lalnunmawia Khiangte and WA No.35/2019 by the Mizoram University.
14. Mr. K.N. Choudhury, learned senior counsel for the appellants Ms. Lalrinkimi Tochhawng and Sh. Lalnunmawia Khiangte contends that even though the employment notice dated 15.09.2015 as well as the Rules of 2013 provided the eligibility criteria of having experience as Assistant or equivalent in the scale of pay of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/- the appellants satisfy the requirement of three years experience as Assistant or equivalent in the said pay scale, although they may not have been paid the scale prescribed.
15. Further contention has been raised by Mr. K.N. Choudhury, learned senior counsel that as stated in the affidavit-in-opposition of Mizoram University a lenient and rational procedure Page No.# 12/17 was adopted as regards the stringent requirement of the eligibility criteria, more so, keeping in view the failure to find appropriate candidates in the earlier round of selection process for the same post. In doing so, the Mizoram University had taken the lenient and rational decision that for evaluating the equivalence of the experience of the candidates as Assistant in the given scale of pay, the nature of the work, duties, functions and responsibilities of the posts held by the candidates were taken into consideration. Accordingly, the fact that the appellants were not receiving a scale of pay as required in the employment notice, would not render them disqualified for not having met the required experience as Assistant or its equivalence in the pay scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/-.
16. As regards the conclusion of the learned Single Judge that the second vacancy of Section Officer which arose after the issuance of the employment notice dated 15.09.2015 could not have been filled up in the same selection process, Mr. K.N. Choudhury, learned senior counsel contends that the said question was not an issue between the parties and therefore no decision upon it was required.
17. Mr. I. Choudhury, learned senior counsel for the appellant Mizoram University has raised the contention by referring to its affidavit that because of the circumstance where no qualified candidate could be found out when a strict interpretation was given to the eligibility criteria, the authorities had adopted a more lenient and rational approach in that respect. A decision was taken that apart from the persons who were regularly employed, others who worked as contractual, co-terminus, muster roll, consolidated pay and those no longer in service would also be included. A decision was also taken that in order to evaluate the eligibility, the nature of work, duties functions and responsibilities of the posts where the candidates were working would also be taken into consideration.
18. According to Mr. I. Choudhury by following the said procedure which was made equally applicable to all, the appellants Ms. Lalrinkimi Tochhawng and Sh. Lalnunmawia Khiangte were found to be eligible for selection.
Page No.# 13/17
19. Contention has also been raised both by Mr. K.N. Choudhury, learned senior counsel appearing for the appellants Ms. Lalrinkimi Tochhawng and Sh. Lalnunmawia Khiangte and Mr. I. Choudhury, learned senior counsel for the Mizoram University that the respondents No.1 and 2 had not met the required qualification inasmuch as, the respondent No.1 worked as an Assistant in KVK under the Directorate of Agriculture, Govt. of Mizoram, but the notification dated 15.11.2013 had clearly stipulated that the post of Assistant in the KVK were not to be treated as equal in rank and status with that of an Assistant under the Govt. of Mizoram. Therefore, although the respondent No.1 may have been paid a pay scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/-, but the experience she had gained by working as an Assistant in the KVK cannot be considered to be an experience as an Assistant as required in the employment notice dated 15.09.2015. Similarly, the respondent No.2 having worked as an Assistant Engineer cannot be said to have gathered the experience of an Assistant as the nature and duties as Assistant Engineer were substantially different from the nature and duties of an Assistant.
20. Mr. A.D. Choudhury, learned counsel for the respondents No.1 and 2 has urged upon that the dominant consideration as per the employment notice dated 15.09.2015 was the requirement of working in a post having in the pay scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/-, and the experience that was gathered would be that of an Assistant or its equivalent in the pay band-II.
21. In the judgment and order dated 06.12.2018, a conclusion was arrived that two appellants although were serving as Assistants but they were not paid the regular scale of pay in pay scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/-. Accordingly, the learned Single Judge was of the view that as the appellant Ms. Lalrinkimi Tochhawng served as administrative officer in the NRHM at a fixed pay of Rs.10,000/- and thereafter as an Assistant in IGNOU, where she was paid in the PB-1 of Rs. 5200/- - Rs.20,200/- at grade pay of Rs.2400/-, she did not have the required eligibility criteria of having an experience of 3 Page No.# 14/17 years as Assistant or equivalent in the pay scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/-.
Similarly, as the appellant Sh. Lalnunmawia Khiangte worked as a Computer Operator who was engaged as a muster roll worker, therefore, she was not paid the scale of pay in PB- II of Rs.9300/- - 34,800/- with GP of Rs.4200/-. Later on, she worked as an LDA in the Mizoram University in the scale of PB, 5200/- - 20,200/- with GP of 1900/-. Accordingly, the learned Single Judge took a view that even the appellant Sh. Lalnunmawia Khiangte also did not have three years experience of working as an Assistant or its equivalent in the pay scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/-.
22. We also take note of that in the judgment and order dated 06.12.2018, the learned Single Judge had not taken into consideration the stand of the Mizoram University that in the prevailing facts and circumstances, a conscious decision was taken to adopt a lenient view as regards the eligibility requirements of the rules as well as that of the employment notice. By taking a lenient view, a decision was taken that apart from the candidates on regular employment, others who were employed on contractual, co-terminus, muster roll, consolidated pay and even those who were no longer in service were also to be included for consideration. The other decision that was taken was that the experience of the candidates would be evaluated on the basis of the nature of the work, duties, functions and responsibilities of the post where they were working. The two decisions had a combined effect that a strict requirement of satisfying the eligibility condition of having worked as an Assistant or its equivalent for three years in the pay scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/- would not be insisted upon and if a given candidate had worked in a post having the same nature of work, duties, functions and responsibilities of an Assistant, he/she would also be taken into consideration. In other words, strict insistence of having worked in the pay-scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/- would also not be insisted upon.
23. It is taken note of that the lenient procedure adopted by the Selection Committee was Page No.# 15/17 equally applicable across the board to all the candidates.
24. The conclusion of the learned Single Judge as regards the eligibility of the appellants on the basis of they having not worked in the pay scale of PB-II of Rs.9300/- - 34,800/- with GP of Rs.4200/- was on the basis of a strict interpretation of the eligibility requirements provided under the rules and in the employment notice. The authorities having taken a conscious decision to adopt a lenient procedure, more particularly in the backdrop of the circumstances that the earlier round of selection led to a failure as because a strict interpretation of the eligibility requirement was adopted, the learned Single Judge would be incorrect in adopting a strict interpretation and giving a go bye to the lenient and liberal procedure adopted by the authorities. It would be more so, inasmuch as, the liberal approach adopted by the authorities is not under challenge in the proceeding.
Further it is also taken note of that even the respondents No.1 and 2 do not meet the eligibility criteria prescribed under the rules and in the employment notice, inasmuch as, a question for determination still remains as to whether the posts in which they were working were actually a post of Assistant or its equivalent.
But without going into the said question, the authorities have also considered the candidature of the respondents No.1 and 2 as because they were also given the benefit of the lenient approach adopted by them, where the nature of the work performed was given a precedence.
25. From the said point of view, the learned Single Judge erred in applying the strict interpretation of the eligibility requirement in respect of the appellants, while at the same time accepted the lenient approach of the authorities in respect of respondents No.1 and 2.
26. If under the lenient approach, the candidature of the appellants and the respondents No.1 and 2 were accepted by the authorities although they do not strictly meet the eligibility requirement under the rules and the employment notice, it cannot be accepted that by applying the strict interpretation, the appellants would stand excluded for not meeting the eligibility requirement, but at the same time, accept the respondents No.1 and 2 by not Page No.# 16/17 equally applying the strict interpretation.
27. In the circumstances, as by applying the lenient approach of the authorities, the candidature of the appellants as well as the respondents No.1 and 2 are found to be acceptable, the only aspect that now remains would be whether as per the respective merits in the selection process, it is the appellants who are to be appointed or it would be the respondents No.1 and 2.
28. The selection on merit equally shows that the appellant in WA No.8/2019, Ms. Lalrinkimi Tochhawng secured a total of 218.5 marks, whereas the appellant in WA No.9/2018, Sh. Lalnunmawia Khiangte secured 214 marks. On the other hand, respondent No.1 Ms. K Vanlalhmangaihi secured 210.5 marks, whereas the respondent No.2 Ms. Laldinsangi secured 203.5 marks.
29. The appellants having secured more marks than that of the respondents No.1 and 2, no infirmity can be found in their selection as well as in the resultant appointments by the orders dated 14.06.2016.
30. As regards the other conclusion of the learned Single Judge that only one post of Section Officer having been advertised in the employment notice dated 15.09.2015, the subsequent vacancy which had arisen could not have been taken into consideration, we rely upon the pronouncement of the Supreme Court in Sandeep Singh Vs. State of Haryana and Another, reported in (2002) 10 SCC 549, wherein in paragraph 3, it has been held as under:
"3. ....That apart even on first principle, it appeals to us to commend that the vacancies available in any particular service till the date of interview at least should be filled up from the very same examination unless there is any statutory embargo for the same."
31. In the instant case, where it is an admitted position that the interview for the posts Page No.# 17/17 were held at a date subsequent on 18.05.2016 and the second post of Section Officer fell vacant on 11.12.2015 when the earlier incumbent was promoted to the next higher post, the subsequent vacancy had arisen atleast before the day on which the interview was conducted. Accordingly, by applying the proposition laid down in Sandeep Singh (supra), there was no infirmity in the conduct of the authorities by which even the second post that had fallen vacant in the meantime was also taken into consideration for filling up pursuant to the present selection process.
32. In view of the above, we are unable to sustain the judgment and order dated 06.12.2018 of the learned Single Judge of the Aizawl Bench in WP(C)No.154/2016 and accordingly, the same stands interfered and is set aside. Consequent, thereof, the appointment of the appellants as per orders dated 14.06.2016 also stands upheld.
33. Appeals stand allowed in the above terms.
JUDGE CHIEF JUSTICE Comparing Assistant