Meghalaya High Court
The Secretary Meghalaya Public Service ... vs Shri Adelbert Kharlyngdoh And Ors on 24 March, 2015
Bench: Uma Nath Singh, S.R. Sen
1
THE HIGH COURT OF
MEGHALAYA
IN THE MATTER OF :
WA. No.10/2015
The Secretary,
Meghalaya Public Service Commission,
Shillong & Ors.
:::Appellants
-VERSUS-
Shri. Adelbert Kharlyngdoh & Ors
:::: Respondents
-AND-
IN THE MATTER OF:
WA No.9 of 2015 The Secretary, Meghalaya Public Service Commission, Shillong & Ors :::Appellants
-VERSUS-
Smti. Santilang Kurbah & Ors :::: Respondents
-AND-
IN THE MATTER OF:
WA. No. 3 of 2015 Shri. Firstborn Sutnga & Ors.
::::Appellants
-VERSUS-
Shri. Adelbert Kharlyngdoh, :::Respondents
-AND-
IN THE MATTER OF :WA. No. 4 of 2015 2
Shri. Firstborn Sutnga & Ors :::Appellants
-VERSUS-
Smti Santilang Kurbah & Ors :::Respondents
-AND-
IN THE MATTER OF :WA. No. 5 of 2015
Smti Bakhriamdor Sohliya & Ors.
:::Appellants
-VERSUS-
Shri. Adelbert Kharlyngdoh & Ors :::Respondents
-AND-
IN THE MATTER OF:WA. No. 6 of 2015
Smti Bakhriamdor Sohliya & Ors :::Appellants
-VERSUS-
Smti Santilang Kurbah & Ors :::Respondents
-AND-
IN THE MATTER OF :WA.No. 7 of 2015
Shri. Lewotki Rangad & Ors.
:::Appellants
-VERSUS-
Shri. Adelbert Kharlyngdoh, :::Respondents
-AND-WA.No. 8 of 2015
Shri. Lewotki Rangad & Ors :::Appellants
-VERSUS-
Smti Santilang Kurbah & Ors :::Respondents 3
-BEFORE-
THE HON'BLE MR JUSTICE UMA NATH SINGH, CHIEF JUSTICE THE HON'BLE MR JUSTICE S.R. SEN Date of hearing : 24.03.2015 Date of Judgment : 24.03.2015 Advocates who appeared in these cases :
Mr ND Chullai, Sr. Advocate, Mr B Khyriem. Mr K Paul, Mr S Thapa, Mr S Panthi, Ms R Dutta, Ms L Warjri, Mr GA Dkhar, Mr E Murmu and Ms R Paul, for appellants.
Mr KS Kynjing, AG, Mr ND Chullai, Sr. Adv, Mr KP Bhattacharjee , Mr N Syngkon, Mr S Dey, Ms QB Lamare, Mr. LR Sangma, Ms K Lytep, Mr NM Sangma and Mr M Pyrtuh, for respondents.
JUDGMENT AND ORDER Hon'ble Mr. Justice Uma Nath Singh,CJ This order shall dispose of the bunch of writ appeals arising out of a common judgment and order passed by learned Single Judge, dated 05-02-2014, in WP(C) No. 118/2014 and WP(C) No. 244/2014, whereby the select list under challenge before the Court was quashed and set aside. Consequently, the writ petitions were allowed with costs of Rs. 10,000/-.
2. It appears that 36(thirty six) candidates filed WP(C) No. 118/2014 and 1(one) preferred WP(C) No. 244/2014, while contending that they were eligible for the appointment on Grade- III posts in the Meghalaya Agricultural Service (for short the MAS). The posts were called: (1) Agriculture Development Officer, (2) Horticulture Development Officer, (3) Scientific Officer 4 (Research) and (4) Seed Technology, (5)Soil Testing/Seed Testing Officers, etc.
3. The Meghalaya Public Service Commission (for short the MPSC), Shillong, issued the advertisement being No. MPSC/Advt- 38/1/2012-2013/1, Shillong dated 20th April, 2012, inviting applications from the eligible candidates for recruitment to 16 posts of Grade-III MAS and the applications were to be received upto 5.00 p.m. on 25th May, 2012, and no application was to be entertained after the closing date. The advertisement also contained the eligibility/academic qualification namely, B.Sc (Agriculture/Horticulture) or equivalent degree from a recognized university and the number of posts so advertised was only tentative which could be varied or changed at the time of appointment. Under paragraph 8 of the said advertisement dated 20th April, 2012, a preliminary scrutiny of the applications was to be completed before the written examination was held. Acceptance of candidature was only provisional in nature. Commission's decision in respect of eligibility and candidature of applicants was to be final. Moreover, in the advertisement dated 20th April, 2012, there was no any mention that the MPSC had any power to relax the conditions as provided in the advertisement. The advertisement for ready reference is reproduced hereunder:
"MEGHALAYA PUBLIC SERVICE COMMISSION SHILLONG No.MPSC/ADVT-38/1/2012-2013/1 dated Shillong, the 20th April, 2012 Applications (Off-line/On-line) in the Commission's prescribed form AF-1 are invited from genuine citizens of India who are desirous to apply in terms and conditions of this Advertisement for recruitment to the various categories of posts specified in the table below:-5
Application will be received up to 5:00 PM on 25th May, 2012 and no application will be entertained after the closing date. For on-line applications through MPSC Website closing date is 23.59 Hrs on 25th May, 2012, after which the link will be disabled.
Para 1: LIST OF POSTS
Serial Name of Posts & No. of Age Relaxation
Pay Scale vacancies limits
No. as on
1.1.20
12
**** **** **** **** ****
4. Grade III 16 18 to 27 1. For all posts,
Meghalaya years Upper age limit is
Agricultural relaxable by 5
Service (MAS) years for ST/SC
(Agriculture candidates.
Development
Officer/Horticultu
re Development 2. For candidates
Officer/Scientific who are already in
Officer (Research)
regular Govt.
Seed service, no upper
Technology/Soil age limit for posts
Testing/Seed at Sl.No.1,2,4 & 5.
Testing etc.) For post at Sl.3
Rs.17,000-470 upper age limit
..... 33,690/- relaxable up to 45
years.
3. For persons
with physical
disabilities (PWDs)
age is relaxable by
10 years (15 years
for ST/SC).
4.
Retrenched/Tempo
rary Personnel of
Temporary
Departments of the
Government of
Meghalaya will get
age concession as
prescribed by
Government.
6
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
No. Qualifications
**** **** ****
4. Grade III Meghalaya B.Sc
Agricultural Service (MAS) (Agriculture/Horticulture
(Agriculture Development or equivalent Degrees
Officer/Horticulture from a recognized
Development Indian Universities
Officer/Scientific Officer
(Research) Seed
Technology/Soil
Testing/Seed Testing etc.)
Para 8: COMMISSION'S DECISION ON ELIGIBILITY OF CANDIDATES In view of the anticipated large number of applicants, only preliminary scrutiny of the applications and other aspects will be undertaken before the Written Examination and therefore, the acceptance of candidature will only be provisional. Candidates are advised to go through the requirements of educational qualification, age, physical standards etc. and satisfy themselves that they are eligible for the posts, before applying. Copies of supporting documents will be sought only from those candidates who qualify in the Written Examination. When scrutiny is undertaken after the Written Examination, if any claim made in the application is not found substantiated the candidature will be cancelled and the Commission's decision in this regard shall be final.
Para 9: DEBARTMENT 7
(a) Candidates should make sure of their eligibility to the post applied for and that the declaration made by them in the format of application regarding their eligibility is correct in all respects. Any candidate furnishing incorrect information or making false declaration regarding his/her eligibility at any stage or suppressing any information is liable TO BE BEBARRED FROM APPEARING FOR ANY OF THE EXAMINATIONS CONDUCTED BY THE COMMISSION, and summarily rejection of their candidature for this recruitment.
(b) The Commission is vested with the constitutional duty of conducting recruitment and selection as per rules duly maintaining utmost secrecy and confidentially in this process and any attempt by anyone causing or likely to cause breach of this constitutional duty in such manner or by such action as to violate or likely to violate the fair practices followed and ensured by the Commission will be sufficient cause for rendering such questionable means as ground for debarment.
(c) If any candidate is or has been found impersonating or procuring impersonation by any person or resorting to any other irregular or improper means in connection with his/her candidature for selection or obtaining support of candidature by any means, such a candidate may in addition to rendering himself/herself liable to criminal prosecution, will be liable to be debarred permanently from any exam or selection held by the Service Commissions in the country.
Sd/-
Secretary, Meghalaya Public Service Commission, Shillong."
4. Thus, apart from other things, it is clear from the advertisement that the candidature being provisional, the candidates were required to submit supporting documents only after they qualified in the written examination during the course of scrutiny. After the initial exercise of scrutiny a list of rejected candidates being No. MPSC/D-5/3/2011-2012/34, dated 25th March, 2013, was published, which included as many as 244 8 candidates including some of the appellants herein vide the notice as follows:
"MEGHALAYA PUBLIC SERVICE COMMISSION MEGHALAYA SHILLONG No.MPSC/D-5/3/2011-2012/34 dated Shillong, the 25th Mar-2013 NOTICE REJECTION LIST Recruitment to the post of GRADE III MEGHALAYA AGRICULTURE SERVICE (AGRICULTURE DEVELOPMENT OFFICER/ HORTICULTURE DEVELOPMENT OFFICER/ SCIENTIFIC OFFICER (RESEARCH) SEED.
Reference: No.MPSC/ADVT-38/1/2012-2013/1 Dated 24- Apr-2012 This is for general information that the applications of the candidates whose names are listed below in respect of the above mentioned post are proposed to be rejected because of the reason(s) mentioned against each.
Objections if any, against the proposed action should be filed so as to reach the Controller of Examinations, Meghalaya Public Service Commission on or before the 12-Apr-2013, failing which the rejection shall be treated as final.
Application Code Name of Candidate Reason(s)
1.057F00700001 SHRI.SILRAK R.SANGMA No required
qualification
***** ***** *****
2.057F00700002 SHIR.SILBERT CHISIM No required
SANGMA qualification
***** ***** *****
3.057F00700003 SHRI.GINSENG R.MARAK No required
qualification
***** ***** *****
9
4.057F00700004 SHRI.MIMO CH MOMIN Incomplete
*Respondent No.41 application
***** ***** *****
5.057F00700011 SMTI.MAIRITHA D.SANGMA No required
qualification
6.057F00700015 SHRI.OTTENBERG GABIL No required
MOMIN qualification
***** ***** *****
7.057F00700019 SHRI.THUPAN RITCHIL No required
MARAK qualification
***** ***** *****
8.057F00700027 SMTI.SABINA D.SANGMA No required
qualification
***** ***** *****
55.057F015000024 SMTI.BINGIALA LALOO Under-qualified
*Respondent No.30
***** ***** *****
100.057F01600050 SMTI.AMENISHA LYNGDOH Under-qualified
*Respondent No.31
***** ***** *****
238.057W99900065 SMTI.BAKHRIAMDOR SOHLIYA Under-
*Respondent No.51 Qualified
***** ***** *****
244.057W99900075 SHRI.ROFIQUL ISLAM No required
ISLAM RANU qualification
Sd/-
Chief Controller of Examinations, Meghalaya Public Service Commission 10 Shillong."
5. After the aforesaid rejection list, the MPSC again issued another rejection list of the applications of the candidates as per notice of rejection being No. MPSC/D-5/3/2011-2012/50, Shillong dated 20th June, 2013. The said list contained the names as under:
"MEGHALAYA PUBLIC SERVICE COMMISSION MEGHALAYA SHILLONG No.MPSC/D-5/3/2011-2012/50 dated Shillong, the 20- Jun-2013 NOTICE REJECTION LIST Recruitment to the post of GRADE III MEGHALAYA AGRICULTURE SERVICE (AGRICULTURE DEVELOPMENT OFFICER/ HORTICULTURE DEVELOPMENT OFFICER/ SCIENTIFIC OFFICER (RESEARCH) SEED.
Reference: No.MPSC/ADVT-38/1/2012-2013/1 Dated 24-Apr-2012
This is for general information that the applications of the candidates whose names are listed below in respect of the above mentioned post are proposed to be rejected for the reason(s) mentioned against each.
Objections if any, against the proposed action should be filed so as to reach the Chief Controller of Examinations, Meghalaya Public Service Commission on or before the 10-Jul-2013, failing which the rejection shall be treated as final.
Application Code Name of Candidate Reason(s)
***** ***** *****
26.057F00700055 SMTI.CHONKAME RANGSA Qualified after
MARAK the last date of
the notification/
*Respondent No.48 advertisement.
***** ***** *****
33.057F00700067 SMTI.SIERRA MANDA Qualified after the
11
SANGMA last date of the
*Respondent No.43 notification/
advertisement.
***** ***** *****
65.057F01500024 SMTI.BINGIALA LALOO Qualified after the
last date of the
notification/
advertisement.
*Respondent No.30
***** ***** *****
115.057F01600050 SMTI.AMENISHA LYNGDOH Qualified after
the last date of
the notification/
advertisement.
*RespondentNo.31
***** ***** *****
263.057W99900055 SMTI.DINGSAI DALBOT SHIRA Qualified after *Respondent No.40 the last date of the notification/ advertisement.
***** ***** *****
266.057W99900065 SMTI.BAKHRIAMDOR SOHLIYA Qualified
*Respondent No.51 after the last
date of the
notification/
advertisement.
***** ***** *****
272.057W99900075 SHRI.ROFIQUL ISLAM ISLAM No required RANU qualification.
Sd/-
Chief Controller of Examinations, Meghalaya Public Service Commission Shillong."12
6. Thereafter, the Government of Meghalaya, Department of Agriculture, through Under Secretary, Agriculture Department, vide reference No. AGRI(E) 76/2011/57, dated 26th April, 2013, requested the MPSC to consider issuing of a corrigendum, in case the time so permitted, specifying the total number of posts available as 49 against the advertised 25 vacant posts. Thus, after a lapse of one year, Notification No. MPSC/Advt-38/1/2012- 2013/110, dated 6th May, 2013, was issued for general information whereby the number of vacancies available was notified to be 49. But no fresh applications were called for the increased posts beyond the earlier 25 posts available in the advertisement. The letter and the corrigendum as aforesaid of Agriculture Department, the Government of Meghalaya being state as:
"GOVERNMENT OF MEGHALAYA AGRICULTURE :::: DEPARTMENT No.AGRI (E) 76/2011/57 Dated Shillong, the 26th April, 2013 From:- Smti. H Sun, Under Secretary to the Govt. of Meghalaya. To, The Secretary, Meghalaya Public Service Commission, Shillong.
Subject: Advertisement for recruitment to the post of MAS-III under Agriculture Department.
Reference: This Department's letter No.AGRI (E) 76/2011/16 dated 1.12.2011.
Your letter M.No.MPSC/D-5/3/2011-12/24 dated 23.4.2012.
Sir, With reference to above, I am directed to inform you that the number of vacancies have now increase in view of the creation of new districts, retirement, etc. 13 In view thereof, I am directed to request you to consider issuing a Corrigendum, if time permits as "49 vacant posts" instead of "25 vacant posts".
Yours faithfully, Sd/-
(Smti. H. Sun), Under Secretary to the Govt. of Meghalaya, Agriculture Department.
MEGHALAYA PUBLIC SERVICE COMMISSION SHILLONG No.MPSC/ADVT-38/1/2012-2013/110 Dated Shillong, the 6th May, 2013.
ADDENDUM To This Office Advertisement No.MPSC/ADVT-38/1/2012- 2013/1, Dt.20.04.2012 Consequence upon the increase in the number of vacancies as informed by Government in the Agriculture Department vide Letter No.AGRI (E) 76/2011/57, dt.26th April, 2013 in respect of the post of Grade III Meghalaya Agricultural Service (MAS) (Agriculture Development Officer/Horticulture Development Officer/Scientific Officer (Research) Seed Technology/Soil Testing/Seed Testing etc.) appearing at SL.No.4 of Para 1 of the above referred advertisement, it is hereby notified for general information of all concerned that the number of vacancies in respect of the said post is 49 (forty nine).
Sd/-
Secretary, Meghalaya Public Service Commission Shillong".
7. Thus, the MPSC issued a notice for conducting the written examination for all the 49 posts of Grade-III Meghalaya Agriculture Service as available on 07-02-2014. However, just 9(nine) days prior to the said date scheduled for holding the written test namely, 07-02-2014, the MPSC took a decision to dispense with the written examination and issued Notification No. 14 MPSC/D-5/3/2011-2012/85, Shillong dated 30th January, 2014, for information that the Commission had decided to dispense with the written test. The contents of minutes of the meeting of the Commission and the aforesaid Notification read as:
"MINUTES OF THE COMMISSION'S MEETING HELD IN THE OFFICE CHAMBER OF THE CHAIRPERSON, MPSC ON 28TH JANUARY, 2014.
Present: Smt. L.R. Sangma-Chairperson Shri. I.R. Lanong-Member Shri. P.S. Dkhar-Member Smt. B.W. Momin-Member Shri. R Rapthap-Secretary The meeting was chaired by the Honourable Chairperson. The Chairperson initiated the discussion. After a detailed deliberation, the following decisions were taken.
1. Recruitment to the post of Grade-III Meghalaya Agricultural Service:
The Commission reviewed the earlier decision taken on 8th April, 2013, in relation to the conduct of written examination scheduled to be held on 7th February, 2014. It was informed that the number of vacancies to be filled up by this recruitment has been enhanced to 49 (forty nine) vide Addendum issued under Memo. No. MPSC/ADVT-38/1/2012-2013/110 dated 6th May, 2013. The number of eligible candidates is 205. The method of selection is not specified by the Service Rules. In such cases the Commission has the discretion to decide if written test should be conducted and such decision is made on the basis of the number of eligible candidates against the available vacancies. The Commission, after taking into account the number of eligible candidates, which is 205, and the number of vacancies, which is 49, decided that the conduct of written examination is not necessary in this recruitment. Hence the written test scheduled to be held on 7 th February, 2014 is cancelled. Notice to this effect shall be issued immediately. It was also decided that the personal interview shall be held from 17th to 21st February, 2014. All candidates are to be informed accordingly.15
***** ***** ***** Memo No.MPSC/D-5/3/2011-2012/84-A Dt.28th January, 2014.
Sd/-
Smt. L.R. Sangma Chairperson, MPSC Copy to:
1. All Hon'ble Members MPSC for information.
2. Secretary/Chief Controller Examination/Dy.Secretary/Under Secretary/concerned D.A. for information and necessary action.
Sd/-
Smt. L.R. Sangma Chairperson, MPSC MEGHALAYA PUBLIC SERVICE COMMISSION SHILLONG No.MPSC/D-5/3/2011-2012/85 Dated Shillong, the 30th January, 2014 NOTICE (Recruitment to the post of Grade III Meghalaya Agriculture Service) This is for the general information of all concerned candidates that the Commission has decided to dispense with the Written Examination in respect of the above mentioned recruitment. The Written Examination scheduled on 7th February, 2014 is therefore cancelled. The selection of suitable candidate to the 49 vacancies notified vide No.MPSC/ADVT-38/1/2012-2013/110 dated 6th May, 2013 shall be made on the basis of personal interview only. It is further notified that the programme of the Personal Interview shall be as follows:-
Dates Roll Nos. Time
17.02.2014 1-40
18.02.2014 41-80
19.02.2014 81-120 9:30 AM onwards
20.02.2014 121-160
16
21.02.2014 161-205
Sd/-
Secretary,
Meghalaya Public Service Commission Shillong".
8. During the course of proceedings before the learned Single Judge, the respondent-State filed the affidavit while mentioning that a request was made to the MPSC to allow the candidates who were awaiting the results of the examination of B.Sc (Agriculture/Horticulture) at the time of filling their applications, for writing the examination for selection and the result thereof be made subject to outcome of the examination of B.Sc (Agriculture/Horticulture). It appears that in the affidavit-in- opposition filed by the State and private respondents before learned Single Judge in WP(C) No. 118/2014, it was mentioned that the candidates had filed a representation and some of them had filed even two representations namely one to the Hon'ble Chief Minister of Meghalaya and another to the Hon'ble Minister In-charge of Agriculture Department. In this background, the MPSC in the light of correspondence received from the State Government decided only to conduct interview for appointment in Grade-III, Agriculture Service, against 49 available vacancies and published the list of recommended candidates vide Notification No. MPSC/D-5/3/2-11-2012/89, dated Shillong 28th February, 2014. Even names of 7(seven) private respondents shown to be impleaded before learned Single Judge, were also included in the impugned list.
17
9. Learned Single Judge also noticed the fact that the aforesaid two representations submitted to Hon'ble the Chief Minister and Hon'ble the Minister concerned were not disclosed by the petitioners in WP(C) No. 118/2014. Learned Single Judge has taken an adverse view after citing a number of decisions of Hon'ble the Apex Court on this subject. The MPSC thus carried out the selection process against 49 posts of Grade-III MAS only on the basis of personal interview pursuant to the correspondence made to the MPSC on the aforesaid representations of the candidates. In the writ petition, an interim order dated 01-04-2014 was passed restraining the respondents from issuing appointment letters to the selected candidates. The said impugned order was made absolute on a later date. Learned Single Judge upon considering the materials on record and hearing learned counsel for the parties, held that the selection process began with the issuance of advertisement. It was also mandatory for the MPSC to have satisfied itself as to how many of total candidates fulfilled the requisite qualification as required vide the advertisement in question. The advertisement so issued, clearly stipulated that the applicants must possess the essential qualification as on the date of Notification i.e. 20th April, 2012. Learned Single Judge also took notice of the fact that the select list included the names of 7(seven) such candidates who were not qualified on the date of Notification or advertisement dated 20th April, 2012, and thus, they were not eligible to appear in the selection process. It is also the view of learned Single Judge that the selection criteria or rules of the game cannot be changed when the game is under process. When the selection process in 18 the instant case had started, it was not open for the MPSC to have amended the mode of selection of candidates contrary to the advertisement dated 20th April, 2012. Moreover, the rules of the mode of selection as mentioned in the advertisement in question provided for written examination as well as viva voce. The composition of service is contained in Rule 4, 7 and 11 of the Meghalaya Agricultural Service Rules, 1996. The said Rules are also reproduced for ready reference:
"4. Composition of the Services:- (1) The services shall consist of the following Grades namely:-
(i) Senior Grade
(ii) Grade-I
(iii) Grade-II
(iv) Grade-III
(2) Each of the categories of posts as listed in Schedule I shall form an independent cadre. Members of the lower cadre shall have no claim for appointment to any of the higher cadre except in accordance with the provisions made in these rules.
7. Method of recruitment:- (1) Appointment to any post in the senior Grade of the service shall be made by promotion from amongst the members of the service holding the next lower posts in the grade and those belonging to Grade-I as specified in the Schedule-II and included in the Select List approved under sub- rule (4) of rule 9.
(2) Appointment to any post in the Grade-I shall be made by promotion from amongst the members of the service holding the next lower post in that grade and those belonging to Grade-
II as specified in Schedule-II and included in the Select List approved under sub-rule (4) of rule 9.
(3) Appointment to any post in the Grade-II shall be made by promotion from amongst the members of the service belonging to Grade-III as specified in Schedule- II and included in the Select List approved under sub- rule (4) of rule 9.
(4) Appointment to any post in the Grade-III of the service shall be made by direct recruitment on the result of the examination conducted by the Commission.
19
11. Direct Recruitment:- (1) Examination for direct recruitment under sub-rule (4) of rule 7 shall be held at such intervals as the Appointing Authority may in consultation with the Commission from time to time. The date on which and the place at which the examination shall be held shall be fixed by the Commission.
(2) The examination shall be conducted by the Commission in accordance with such syllabus as the Appointing Authority may from time to time make in consultation with the Commission.
(3) Out of the vacancies to be filled up on the result of each examination, there shall be reservation in favour of candidates belonging to Schedule Caste and Schedule Tribes to the extent and subject to the conditions as the Government may from time to time prescribe.
(4) On the basis of the result of the examination, the Commission shall prepare a list of all successful candidates in order of merit, which shall be determined in accordance with the aggregate marks obtained by each candidates and if two or more candidates obtained equal marks the Commission shall arrange them in order of their relative merit which shall be determined in accordance with the general suitability of the candidates for appointment to the post. The number of persons to be included in the list shall be according to the actual vacancies that are likely to occur during the recruitment year plus 10 percent of the actual vacancies or 2 names whichever is more. The list shall be forwarded to the Appointing Authority.
(5) The inclusion of a candidates' name in the list confer no right to appointment unless the Government is satisfied after such enquiry as may be considered necessary that the candidate is suitable in all respect for appointment to the post and that appointment to any post in the service is subject to availability of vacancy."
10. The Rules thus provided that the selection to the post of Grade-III MAS shall be made by direct recruitment on the basis of result of examination conducted by the Commission. Moreover, the post of Grade-III service in agriculture is an entry point in service, and the age group provided is between 18 to 27 years. Learned Single Judge in the light of various decisions has thus 20 come to the conclusion that the decision of the MPSC as well as the State Government taken in contravention of the terms and conditions of the advertisement dated 20th April, 2012, by dispensing with the written examination and also allowing the candidates who were not qualified on the date of Notification as per advertisement dated 20th April, 2012 to appear in the selection process seems to be perverse. Regarding the Notification of additional 33 posts by the MPSC after the advertisement was issued on 20th April, 2012, it would amount to denial of opportunity to other eligible candidates who had acquired the qualification of eligibility for appointment on the additional posts between the date of advertisement i.e. 20th April, 2012 and the date of Addendum dated 06-05-2013. Learned Single Judge also took notice of the fact that an un-communicated official order/official correspondence has no force in the eye of law. Thus, no claim can be made on the basis of such un-communicated order/official correspondence. Moreover, interdepartmental correspondence could not have been issued after the selection process was set in motion which also provided for requisite educational qualification to apply for appointment on the posts in question. Learned Single Judge also held that no matter some candidates were selected but the element of sympathy cannot outweigh the application of law. Thus, on such a ground there could not have been any departure from the operation of law. Accordingly, the select list drawn on 28-02-2014 was quashed and set aside and the writ petitions were allowed with costs of Rs. 10,000/-.
21
11. In this background, we have heard learned counsel for the parties. Learned counsel for the appellants, Mr. K.Paul, raised the point of locus standi of the writ petitioners/respondents to move this Court questioning the select list prepared by the MPSC, inter alia, on the ground that it is the writ petitioners who had submitted the representations to the Hon'ble Chief Minister as well as the Minister, In-charge of Agriculture. It was only towards their representations that the correspondence was made to the MPSC and a decision was taken to dispense with the written test. It is thus the submission of Mr. K.Paul, learned counsel for the appellants that there was no fault on the part of the appellants, selected candidates, who legitimately and in bonafide belief participated in the selection process by way of oral interview. If there was any mistake, commission or omission, it was only on the part of the MPSC. Learned counsel also tried to argue that the examination does not only mean written examination and it could only be a viva voce test, and the State Government being the final authority can decide the mode of selection in consultation with the MPSC. There was a good ground for the MPSC to have exercised its discretion in dispensing with the requirement of written examination: for, they had received the representations of candidates through the office of Hon'ble the Chief Minister and the Minister concerned.
12. On the other hand, Mr. ND Chullai, learned Sr. counsel, contends that the MPSC acted upon the representations in a bonafide belief and within the pale of its competence. It is also the submission of Mr. ND Chullai, learned Sr. counsel, that the Commission would readily accept the verdict of this Court 22 upholding the impugned judgment, whereby select list had been quashed, with one modification that the candidature of applicants may be allowed to remain alive for the purpose of fresh examination for selection on 16 posts as existed on the date of advertisement.
13. On due consideration of the rival submissions, we do not find any force in the arguments of learned counsel for the appellants for the reasons that the points raised herein were argued before learned Single Judge with equal vehemence and the same having not found favour with the Court were correctly, on the basis of settled principles of law, repelled. Once the Rules provides for holding of examination for selection, we cannot interpret to say that the State Public Service Commission has discretion to act contrary to Rules and/or the conditions of advertisement by dispensing with the written test. A Constitution Bench of Hon'ble the Apex Court in the case of Ajay Hasia & others vs. Khalid Mujib Sehravardi and others, reported in 1981(1) SCC 722 has observed that selection by way of oral interview is subjective and is based on first impression. Its result is influenced by many uncertain factors and it is capable of abuse, unless the persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification. In that case, even the allocation of more than 15% of the total marks for the oral interview was held to be arbitrary and unreasonable and was thus struck down as constitutionally invalid.
In the case of Anzar Ahmed vs. State of Bihar and others, reported in 1994(1) SCC 150, the Hon,ble Supreme 23 Court has held that unless the Commission is able to show that the practice to dispense with written test had been followed in the past also, the selection to any post in the instant case posts of MAS (Grade-III) cannot be carried out on the basis of interview. There should be a consistent practice being followed by the Commission as such, to support the assertion that it can carry out the selection of MAS Officers (Grade-III) only on the basis of oral interview. Besides, higher weightage can be given to interview in comparison with the written test only where it is required to maintain high standard in the job like that of a Judicial Service. Moreover, in the advertisement, there is no such mention that the number of posts is likely to be increased in near future and if so, such posts can also be included in the number of vacancy available in the advertisement and the candidates applying for the said existing vacancy can also be considered for appointment against the increased vacancy. Moreover, as many as 7(seven) candidates were declared selected only on the basis of viva voce who were not even qualified or possessed the requisite eligibility qualification on the date of advertisement namely, 20th April, 2012. In that view of the matter, we dismiss the writ appeals and uphold the impugned judgment. But-that- nevertheless, in view of the fact that the MPSC carried out scrutiny of the application forms and found a good number of applicants eligible to appear in the test for selection and further that if fresh applications against the existing vacancy are invited, there is a chance of their being declared as disqualified on the ground of age or otherwise, and they may suffer prejudice for no fault on their part and the process of selection may be further 24 delayed, we agree with the submission of Mr. ND Chullai, learned Sr. counsel, appearing for the State Public Service Commission that the applicants whose candidature was found to be valid, having possessed the eligibility qualification, be allowed to appear in the written test as well as viva voce; that their candidature should not be rejected for the fresh test on the ground of being overaged etc. and that the selection process be allowed to be carried out within a time frame to be prescribed by this Court. As the candidature of all the applicants is only provisional, and in the case of large number of candidates, it was found to be valid (excluding the case of 7(seven) applicants who were not eligible on the date of advertisement dated 20th April, 2012), such applicants are to be allowed to appear in the examination for selection against the existing posts in question, in case the State Government in consultation with the MPSC or either of them having powers to take decision in such matter so decides. Moreover, we make it clear that the applications had since been invited only against 16 vacancies as per the advertisement, the candidature of eligible applicants shall be valid against only those vacancies, and not the ones which were added later by way of corrigendum notification. As regards the rest of the vacancies, the MPSC can issue fresh advertisement inviting fresh applications and carry out a separate selection.
14. Thus, all the writ appeals namely, WA.No. 3/2015, WA.No. 4/2015, WA.No.5/2015, WA.No.6/2015, WA.No.7/2015, 25 WA.No.8/2015, WA.No.9/2015 and WA.No.10/2015 stand dismissed with the aforesaid modifications, directions and the observations.
JUDGE CHIEF JUSTICE S.Rynjah