Gauhati High Court
High Court Bar Association vs The Gauhati High Court on 27 September, 2022
Author: Suman Shyam
Bench: Suman Shyam, Malasri Nandi
Page No.# 1/17
GAHC010167942020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4908/2020
HIGH COURT BAR ASSOCIATION,
KOHIMA, H.Q. KOHIMA, NAGALAND. REGD. NO.HOME/SRC-6419, REP. BY
ITS PRESIDENT, SHRI ASHIPRI ZHO, R/O. KOHIMA, NAGALAND.
VERSUS
THE GAUHATI HIGH COURT, GUWAHATI AND 7 ORS.
REP. BY THE REGISTRAR, GAUHATI HIGH COURT, KOHIMA BENCH,
KOHIMA, NAGALAND.
2:THE REGISTRAR GENERAL
GAUHATI HIGH COURT
GUWAHATI.
3:THE REGISTRAR (VIGILANCE) CUM IN CHARGE
RECRUITMENT CELL
GAUHATI HIGH COURT
GUWAHATI.
4:AISHWARYA NIGAM
R/O. SM-45
BLOCK-5
SAHYADRI ENCLAVE
BHADBHADA ROAD
DEPOT
BHOPAL-462003
MADHYA PRADESH.
5:SMTI. NIKILI ROCHILL
Page No.# 2/17
C/O. ER. VITOSHE K ROCHILL
ADDL. CHIEF ENGINEER (CIVIL)
DEPTT. OF POWER (T AND G)
BELOW AG
KOHIMA-797001
NAGALAND.
6:ROBERT LHUNGDIM
R/O. KUKI CHRISTIAN CHURCH COMPOUND
DEWLAHLAND
IMPHAL
MANIPUR-795001.
7:THE STATE OF NAGALAND
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF NAGALAND
KOHIMA.
8:THE PRINCIPAL SECRETARY
TO THE GOVT. OF NAGALAND
DEPTT. OF JUSTICE AND LAW
NAGALAND
KOHIMA
For the Petitioners: Mr. C.T. Jamir, Sr. Adv.
Mr. L. Wapang, Adv.
For the Respondents: Mr. H.K. Das, SC. GHC.
Ms. T. Khro, AAG, Nagaland.
Mr. S. Dutta, Sr. Adv
Mr. S. Dutta, Adv.
Linked Case : WP(C)/4910/2020
QHETO A. CHOPHY
S/O. SHRI AHOZHE CHOPHY
R/O. CHEKIYIE VILLAGE
P.O. AND P.S. DIMAPUR
DIST. DIMAPUR
NAGALAND.
VERSUS
THE GAUHATI HIGH COURT AND 6 ORS.
GUWAHATI
Page No.# 3/17
REP. BY THE REGISTRAR GENERAL
GAUHATI HIGH COURT
GUWAHATI
ASSAM.
2:THE REGISTRAR GENERAL
GAUHATI HIGH COURT
GUWAHATI
ASSAM.
3:THE REGISTRAR (VIGILANCE) CUM INCHARGE
RECRUITMENT CELL
GAUHATI HIGH COURT
GUWAHATI
ASSAM.
4:AISHWARYA NIGAM
R/O. SM-45
BLOCK-5
SAHYADRI ENCLAVE
BHADBHADA ROAD
DEPOT
BHOPAL-462003M MADHYA PRADESH.
5:ROBERT LHUNGDIM
R/O. KUKI CHRISTIAN CHURCH COMPOUND
DEWLAND
IMPHAL
MANIPUR-795001.
6:THE STATE OF NAGALAND
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF NAGALAND
KOHIMA.
7:THE PRINCIPAL SECRETARY
TO THE GOVT. OF NAGALAND
DEPTT. OF JUSTICE AND LAW
NAGALAND
KOHIMA.
------------
For the Petitioners: Mr. C.T. Jamir, Sr. Adv.
Mr. L. Wapang, Adv.
For the Respondents: Mr. H.K. Das, SC. GHC.
Ms. T. Khro, AAG, Nagaland.
Mr. S. Dutta, Sr. Adv
Mr. S. Dutta, Adv.
Page No.# 4/17
Linked Case : WP(C)/4909/2020
SMT. T. TILILA SANGTAM
D/O. Y.T. SANGTAM
R/O. CHUNGLIYIMTI VILLAGE
P.O. AND P.S. CHARE
DIST. TUENSANG
NAGALAND.
VERSUS
THE GAUHATI HIGH COURT AND 6 ORS.
GUWAHATI
REP. BY THE REGISTRAR
GAUHATI HIGH COURT
KOHIMA BENCH
KOHIMA
NAGALAND.
2:THE REGISTRAR GENERAL
GAUHATI HIGH COURT
GUWAHATI.
3:THE REGISTRAR (VIGILANCE) CUM INCHARGE
RECRUITMENT CELL
GAUHATI HIGH COURT
GUWAHATI.
4:AISHWARYA NIGAM
R/O. SM-45
BLOCK-5
SAHYADRI ENCLAVE
BHADBHADA ROAD
DEPOT
BHOPAL-462003
MADHYA PRADESH.
5:ROBERT LHUNGDIM
R/O. KUKI CHRISTIAN CHURCH COMPOUND
DEWLAND
IMPHAL
MANIPUR-795001.
6:THE STATE OF NAGALAND
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF NAGALAND
KOHIMA.
7:THE PRINCIPAL SECRETARY
Page No.# 5/17
TO THE GOVT. OF NAGALAND
DEPTT. OF JUSTICE AND LAW
NAGALAND
KOHIMA.
------------
For the Petitioners: Mr. C.T. Jamir, Sr. Adv.
Mr. L. Wapang, Adv.
For the Respondents: Mr. H.K. Das, SC. GHC.
Ms. T. Khro, AAG, Nagaland.
Mr. S. Dutta, Sr. Adv
Mr. S. Dutta, Adv.
BEFORE
THE HON'BLE MR. JUSTICE SUMAN SHYAM
THE HON'BLE MRS. JUSTICE MALASRI NANDI
Date of hearing : 25/08/2022.
Date of judgement : 27/09/2022.
JUDGEMENT AND ORDER (CAV)
Suman Shyam, J
1. Heard Mr. C. T. Jamir, learned senior counsel assisted by Mr. L. Wapang, learned counsel appearing for the writ petitioners in all the three writ petitions. We have also heard Mr. H.K. Das, learned Standing Counsel, Gauhati High Court, appearing for the respondent nos. 1, 2 and 3, Ms. T. Khro, learned Additional Advocate General, Nagaland, appearing on behalf of the State of Nagaland and Mr. Sishir Dutta, learned senior counsel assisted by Mr. S. Dutta, learned counsel for the respondent no. 5 in WP(C) No. 4908/2020. The remaining respondents did not appear during hearing of these writ petitions.
2. In these three writ petitions common questions of law and facts are involved and, therefore, those are being taken up for disposal by this common order.
3. The facts giving rise to the filing of these writ petitions are as follows :-
4. On 01/08/2018, the Registrar General of Gauhati High Court had issued an advertisement notice for filling up 3 (three) vacancies (2 existing and 1 anticipated vacancy) in the Grade-III category of Nagaland Judicial Service. In the advertisement notice dated Page No.# 6/17 01/08/2018, it was inter-alia, mentioned that all candidates who obtain 60% or more marks or corresponding grade in the final written examination shall be eligible to take part in the viva voce test of 70 marks. For the Schedule Caste/Schedule Tribe candidates, the cut- off mark was fixed at 50% or corresponding grade in the final written examination for participation in the viva voce test. The advertisement notice had further mentioned that the candidates will have to secure minimum 60% marks in the viva voce for being selected.
5. Based on the advertisement notice dated 01/08/2018, written test and viva voce test was conducted, where after, select list dated 14/03/2019 was published wherein, the names of three candidates i.e. the respondent nos. 4, 5 and 6 in WP(C) 4808/2022, was published. After publication of the select list, objection were received by the Government of Nagaland from the Nagaland Bar Association i.e. the writ petitioner in WP(C) 4808/2020 against the select list on the ground that the same was prepared in violation of the reservation policy of the State. The aforesaid objection was apparently taken on account of the fact that out of the 3 (three) selected candidates, only one candidate at serial No. 2 of the select list i.e. the respondent no. 5 in WP(C) No. 4908/2020 was a reserved category candidate from the State of Nagaland. Since, there is a policy decision of the State of Nagaland to have 80% reservation of posts in all public employment for the indigenous population of the State of Nagaland, hence, according to the objector, the select list dated 14/03/2019 containing the names of more than 20% candidates belonging to the general category was untenable.
6. The writ petitioner in WP(C) 4908/2020 viz. the High Court Bar Association, Kohima had submitted a representation on 10.04.2019 addressed to the Chief Justice of Gauhati High Court objecting to the select list dated 14.03.2019 on the ground that the same had been issued in violation of the reservation policy of the state. The Secretary to the Government of Nagaland, Justice & Law Department had also addressed a letter dated 26/06/2019 drawing the attention of the High Court to the aforesaid objection with a request to review the select list dated 14.03.2019. In the meantime, these three writ petitions came to be filed before the Kohima Bench of this High Court. WP(C) 97(K)/2019 was instituted by the High Court Bar Association, Kohima, whereas, WP(C) 106(K)/2019 and WP(C) 243(K)/2019 were instituted by the two unsuccessful candidates, viz. Smt. T. Tilila Sangtam and Qheto A. Chophy, respectively. Meanwhile, taking note of the letter dated 26/06/2019 issued by Secretary to the Page No.# 7/17 Government of Nagaland, Department of Justice & Law as well as the pendency of the three aforementioned writ petitions, the Administrative Committee of the High Court, vide resolution No. 3 dated 02/09/2019, had resolved to await the outcome of the three writ petitions. The three writ petitions were subsequently transferred to the Principal Bench at Guwahati and renumbered as WP(C) 4908/2020, WP(C) No 4909/ 2020 and WP(C) No 4910/ 2020.
7. The impugned selected list dated 14/03/2019 has been assailed by the petitioners primarily on two counts. Firstly, that the select list violates the reservation policy of the Government of Nagaland. Secondly, since the Rules of 2006 does not prescribe any 'cut off' mark for the written as well as viva voce test for a candidate to be selected, the prescription in the advertisement to such effect, merely based on the recommendation of the Full Court on the administrative side, was impermissible in the eye of law.
8. The three writ petitions were evidently instituted during the period of validity of the select list dated 14/09/2019. However, when the writ petitions were taken up for final hearing it came to the notice of this Court that the select list published on 14/03/2019 itself mentions that the same would be valid for a period of one year or till the next select list is published, whichever is earlier. The attention of this Court was also drawn to the provisions of Rule 10(v) of the Nagaland Judicial Service Rules, 2006 (herein after referred to as "the Rules of 2006"), which provides that the list so prepared under Clauses-III and IV of the Rules of 2006 shall cease to operate on the expiry of one year from the date of such publication. Since there is no order from the Court extending the life of the select list dated 14.03.2019 beyond one year from the date of its publication, hence, a further question arose as to whether, in view of the Rule 10(v) of the Rules of 2006, the said select list dated 14.03.2019 can be operated after the expiry of one year so as to make appointments. However, since the above issue had arisen during the pendency of the writ petitions, hence, there was no pleadings on record pertaining to the above issue.
9. Taking note of arguments addressed by the learned counsel for parties on the question of validity of the select list, this Court had permitted the contesting parties to file additional pleadings bringing their respective stands on record on the above point even at a stage when the matters were fixed for final hearing.
10. Mr. Jamir, learned senior counsel appearing for the writ petitioners has argued that Page No.# 8/17 the select list contravenes the reservation policy of the State of Nagaland and hence, the same cannot be acted upon. In so far as the "cut off" marks are concerned, the learned senior counsel for the petitioners has relied upon the decision rendered in the case of Durgacharan Misra. Vs. State of Orissa and others reported in (1987) 4 SCC 648; Hemani Malhotra Vs. High Court of Delhi reported in (2008) 7 SCC 11; Ramesh Kumar Vs. High Court of Delhi and another reported in (2010) 3 SCC 104, to contend that the recruiting agency would not have any power or authority to impose any additional criteria in the selection process which is not envisaged by the relevant Service Rules as such a measure would amount to amending the Rules framed under the proviso to Article 309 and 234 of the Constitution.
11. On the question of expiry of the select list, Mr. Jamir has placed reliance on the decision of the Supreme Court rendered in the case of State of Bihar and others Vs. Amrendra Kumar Mishra reported in (2006) 12 SCC 561 to contend that a select list cannot remain operative beyond the time prescribed by the Rules. In support of his above arguments, Mr. Jamir has also placed reliance on the decision of the Supreme Court rendered in the case of State of U.P. and others Vs. Harish Chandra and others reported in (1996) 9 SCC 309 as well as State of Rajasthan and others Vs. Jagdish Chopra reported in (2007) 8 SCC 161.
12. Mr. S. Dutta, learned senior counsel appearing for the respondent no.5 i.e. the selected candidate at Sl. No. 2 in WP(C) 4908/2020, on the other hand, has argued that the High Court Bar Association, Kohima does not have any locus standi to maintain this writ petition and, therefore, the same is liable to be dismissed on such count alone. In the above context, Mr. Dutta has relied upon the law laid down in the case of R.K. Jain Vs. Union of India reported in (1993) 4 SCC 119) as well as Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed reported in (1976) 1 SCC 671 to argue that the High Court Bar Association cannot intervene in a proceeding where the sole issue is the validity of a select list drawn up in a recruitment process. Contending that his client is not a party in the other two writ petitions wherein, the select list is under challenge, Mr. Dutta has prayed for dismissal of those writ petitions as well on the ground of non-joinder of necessary party. According to Mr. Dutta the petitioners in WP(C) No 4909/ 2020 and WP(C) No 4910/ 2020 having taken part in the selection process and having failed to get selected, cannot now turn Page No.# 9/17 back and assail the select list by filing those writ petitions.
13. The learned senior counsel for the private respondent No 5 has further argued that Rule 8 of the Rules of 2006 deals with reservation which permits inclusion of un-reserved candidates in the select list if reserved candidates are not available in a particular year. Therefore, there is no good ground for setting aside the select list due to contravention of the State's Reservation Policy.
14. By referring to the decision of the Hon'ble Supreme Court in the case of State of U.P. Vs. Ram Swarup Saroj reported in (2000) 3 SCC 699, Mr. Dutta has submitted that since the writ petitions were instituted during the period of validity of the select list and considering the fact that the selection process was stalled due to the pendency of these writ petitions, it cannot be said that the select list had expired by efflux of time.
15. Mr. H.K. Das, learned Standing Counsel, Gauhati High Court, appearing on behalf of the respondent nos. 1, 2 and 3, has invited the attention of this Court to the general instructions contained in Schedule 'B' of the Rules of 2006 to submit that the Rules confer authority upon the recruiting agency to prescribe 'cut off' marks both in the written as well as viva voce tests and to that extent, the arguments made by the petitioners' counsel that the recruiting agency did not have any jurisdiction or authority to prescribe the 'cut off' marks is wholly untenable. By relying upon the decision of the Supreme Court in the case of K.H.Siraj Vs. High Court of Kerala reported (2006) 6 SCC 395, Mr. Das has argued that since the Rules authorize the Recruitment Agency to prescribe as to the manner in which the selection criteria is to be framed, no fault can be found with the fixation of 'cut off' marks since the same is in consonance with the Rules of 2006. Mr. Das has also argued that the grounds for challenging the select list taken in the writ petitions are wholly untenable in the eye of law and, therefore, the writ petitions were liable to be dismissed.
16. Ms. T. Khro, learned Additional Advocate General, Nagaland, has submitted that due to the complaints received by the Government of Nagaland regarding violation of the Reservation Policy, the matter was referred to the High Court and the selection process has remained stalled due to the pendency of these writ petitions. However, according to the learned AAG, Nagaland, the select list is not in conformity with the notifications dated 06/07/1973 as well as 29/10/1983 issued by the Government of Nagaland, laying down the Reservation Policy of 80% reservation of posts for the indigenous local candidates and 20% Page No.# 10/17 for others.
17. We have considered the submissions advanced by the learned counsel for the rival parties and have also gone through the materials available on record.
18. As has been mentioned above, the advertisement notice itself clearly mentions that the candidates will have to secure minimum 'cut-off' mark of 60% in the written test as well as the viva voce test in order to be selected. There was relaxation in case of SC and ST candidates in whose case, the 'cut-off' mark was 50% in the written examination. However, in order to get selected the candidates would have to secure minimum 'cut off' marks in the viva voce as well. It is evident from the materials available on record that save and except the respondent no. 5 in WP(C) 4908/2020, who is a local candidate from Nagaland, no other local candidate could secure the minimum 'cut off' marks in the viva voce test. As such, their names were not included in the final select list published on 14/03/2019.
19. The learned counsel for the respondent Nos 1,2 and 3 has argued that the purpose behind prescribing 'cut off' marks for written test as well as viva voce was to ensure that only the suitable candidates were appointed as Judicial Officers. The above submission of Mr. Das finds due reflections in the Rules of 2006 as well. A plain reading of the 'General Instructions' contained in schedule 'B' of the Rules of 2006, clearly indicates that the recruiting agency would have the discretion of prescribing criteria for selection. The relevant portion of the 'General Instructions' contained in Schedule 'B' of the Rules of 2006, is extracted herein below for ready reference :-
"(3) General Instructions :
All candidates who obtain sixty percent or more marks or corresponding grade in the written examination shall be eligible for viva voce examination. Provided that Scheduled Caste/Scheduled Tribe candidates who obtain fifty percent or more marks or corresponding grade in the written examination shall be eligible for the viva voce examination.
Selection of candidates shall be made on the basis of cumulative grade value obtained in the written and viva voce examination.
The object of the viva-voce examination under sub-rules (1) and (2) is to be assess the suitability of the candidate for the cadre by judging the mental alertness, knowledge of law, clear and logical exposition, balance of judgement, Page No.# 11/17 skills, attitude, ethics, power of assimilation, power of communication, character and intellectual depth and the like of the candidate. All necessary steps not provided for in these Rules for recruitment under these Rules shall be decided by the recruiting authority.
The mode of evaluating the performance of Grading in the written and viva voce examination shall be as specified below."
20. From the aforesaid provisions of the Rules of 2006, it is apparent that prescribing 'cut- off' marks for written test and viva voce not only had a reasonable nexus with the purpose sought to be achieved by the Rules but such a recourse was also permissible under the Rules of 2006. It is to be noted here-in that the advertisement notice dated 01.08.2018 notifying such selection criteria by fixing the benchmarks is not under challenge in these proceedings. The petitioner have only challenged the select list dated 14.03.2019 which was published by following the selection criteria laid down in the advertisement notice dated 01.08.2018..
21. In the case of K.H.Siraj (supra) a similar question had arisen as to whether, fixing of separate minimum cut-off marks in the interview for further elimination of candidates after a comprehensive written test was violative of the statute. In that case, a process was initiated for recruitment of Munsif Magistrate under the Kerala Judicial Service Rules,1991 (Rules of 1991). As per Rule 7 of the Rules of 1991, the High Court was required to hold written and oral tests and to prepare a select list of candidates suitable for appointment as Munsif Magistrates. Interpreting Rule 7 of the said Rules 1991, the Supreme Court has observed that from the amplitude of power under Rule 7, it was open for the High Court to prescribe benchmarks for the written test and oral test in order to achieve the purpose of getting the best talent. The General Instruction of the Rules of 2006 supra, in our view contains similar provision permitting the High Court to prescribe benchmarks in the written and oral tests for recruitment of suitable candidates for appointment in the Nagaland Judicial Service. Therefore, by applying the principles laid down in the case of K.H.Siraj (Supra), we are of the view that prescribing cut- off marks for the written and oral test in the advertisement dated 01.08.2018 was not in violation of the provisions of the Rules of 2006.
22. In the case of Durgacharan Misra (supra) the recruitment process was initiated Page No.# 12/17 under the Orissa Judicial Service Rules 1964. The said rules did not provide for prescribing any minimum qualifying marks, rather as per Rule 18, the markes of the viva voce test was required to be added to the marks obtained in the written test. By interpreting the rules, it was held that the commission did not have any power to prescribe minimum standard for determining the suitability of the candidates.
23. In the case of Hemani Malhotra(supra) minimum marks for viva voce was prescribed after the written test was over. In that context it was held that the rules of the game cannot be changed during or after the selection process was over.
24. In the case of Ramesh Kumar (supra) relied upon by Mr. Jamir it was held on the facts of the case that the Delhi High Court should not have prescribed minimum qualifying marks for interview because of the Shetty Commission recommendations which was already accepted by the Supreme Court. It was, however, observed that in the absence of any contrary provision in the rules, it was permissible to prescribe qualifying marks for written test and viva voce test.
25. The aforementioned decisions relied upon by Mr. Jamir were evidently rendered in the facts and circumstances of those cases and hence, in our considered opinion, the ratio laid down in those decisions would not have any bearing in the facts of the present case. We are, therefore, unable to accept the submission of Mr. Jamir that the cut-off marks prescribed for the written test and viva voce test had any vitiating effect on the selection process in this case.
26. By the notification dated 06/07/1973 issued by the Chief Secretary to the Government of Nagaland, it was laid down that 100% posts in Grade-III and Grade-IV category would be reserved for persons belonging to the Tribes whereas 80% of posts in all other categories are to be filled up by direct recruitment from the persons belonging to the tribes mentioned in the notification. The notification dated 06/07/1973 was followed up by another notification dated 29/10/1983 issued by the Additional Chief Secretary to the Government of Nagaland, where also, the said position has been reiterated.
27. Coming to the issue of the select list being in violation of the reservation policy of the Government of Nagaland, from a reading of the notifications dated 06/07/1973 as well as 29/10/1983, it is apparent that 80% of the posts in the Grade-III and IV category had been reserved for local candidates belonging to the ST category of the State of Nagaland. However, Page No.# 13/17 it is the admitted position of fact that the said policy decision of the State Government has not been incorporated in any statute nor has any amendment been made to the Rules of 2006. The fact that the Cabinet of the Nagaland Government was also conscious of the requirement of making amendment of the Judicial Service Rules so as to implement the State's reservation policy in case of recruitment in the Nagaland Judicial Service is evident from the resolution of the Cabinet adopted in the meeting held on 10-06-2019 with regard to Agenda item No. 12 which is available on record. The fact, however, remains that the Rules of 2006 has not been amended till date. Be that as it may, Rule 8 of the Rules of 2006 deals with reservation policy. Rule 8(1) and (2) would be relevant for the purpose of this case and therefore, the same are reproduced here-in below for ready reference :-
"8. Reservation. A (1) The appointment to the service shall be subject to the orders regarding special representation for Scheduled Caste and Scheduled Tribes, issued by the Govt. from time to time.
(2) If sufficient number of suitable candidates belonging to the reserved category are not available, the posts may be filled up from among other candidates and an equivalent number of additional vacancies shall be reserved and carried forward till the quota is filled up subject, however, to the condition that in no calendar year shall the normal reserve vacancies taken together would exceed 50% of the total number of vacancies filled up."
28. A careful reading of Rules 8(1) goes to show that appointments made in the Judicial Service would have to be in conformity with the orders issued by the Government of Nagaland from time to time regarding special reservation of Schedule Caste and Schedule Tribes. However, sub-rule 2 of Rules 8 permits filling up of posts by un-reserved candidates if suitable candidates from the reserved category is not available. The only criteria appears to be that equivalent number of vacancies in the reserve category would have to be carried forward till the quota is filled. Rule 8(2), however, imposes a further restriction by providing that in any calendar year, the total number of normal reserve vacancies shall not exceed 50%. Rule 8.B of the Rules of 2006 further provides that 40 (forty) point roster is to be maintained to depict the posts reserved for General Candidates, SC,ST and other candidates for appointment in Grade-III of the Service.
Page No.# 14/17
29. A minute reading of the rules depicts that the use of expression " normal reserved vacancies " in sub-rule 2 of Rule 8 is incongruous to the scheme of the Rules of 2006. It appears that the purpose of Rules 8(2) was to put a ceiling of 50% vacancies in the "un- reserved vacancies" rather than the " reserved category vacancies" in any calendar year if suitable candidates from the reserved category i.e. SC, ST (Plains) and ST(Hills) was not available. It is also not clear as to how the 40 point roster would meet the requirement of the 80% reservation policy of the State for local candidates from Nagaland in the light of Rule 8 of the Rules of 2006. To that extent, there appears to be some ambiguity in the rules which requires to be suitably addressed by carrying out necessary amendments in the Rules. However, from a harmonious construction of Rules 8(1) and (2) of the Rules of 2006 read with the Government Notifications dated 06.07.1973 and 29.10.1983 what logically follows is that although the government order on reservation would have to be followed while making appointments in the Nagaland Judicial service, yet, if suitable candidates from the reserved category is not available, candidates from the un-reserved category can be appointed against those vacancies subject to the condition that the total number of reserved category vacancies would not exceed 50% of the vacancies in a particular calendar year and the vacancies would be carried forward to the next year.
30. After the decision of the Supreme Court rendered in the case of Indra Sawhney vs Union of India and others reported in 1992 Supp (3) SCC 215 law is well settled that except in some extra-ordinary situation, reservation contemplated under Article 16(4) of the Constitution of India should not exceed the ceiling of 50%.Therefore, it prima facie appears that Rules 8(2) meets the requirement of the law laid down in the case of Indra Sawhney(supra). The Rules of 2006 is not under challenge in these proceedings. The Rules of 2006 having been framed under the Article 309 read with Article 234 of the Constitution would obviously have the force of a statue and hence, would have to be followed in letter and spirit. As such, under the Rules of 2006, it would be permissible to appoint candidates from the un-reserved category, subject to the conditions laid down in sub-rule 2 of Rule 8. It would be equally significant to note that respondent No 5 in WP(C) 4908/2020 is a candidate who admittedly belongs to the ST category of Nagaland. Therefore, viewed from any angle, the inclusion of the name of respondent No 5 in WP(C) 4908/2020 in the select list dated 14.03.2019 did not violate the norms of reservation prescribed by the Rules of 2006 or the Page No.# 15/17 standing Government orders governing the subject. However, the petitioners in WP(C) 4908/2020 have assailed her selection as well.
31. In this case, although the petition appears to have been filed espousing the cause of the members, yet, the petitioner in WP(C) 4908/2020 being an association, obviously it cannot claim any right to be appointed against any of the vacancies advertised on 01/08/2018. Therefore, for all practical purpose, the writ petition is a PIL. In view of the law laid down in the decisions referred to above, we are of the opinion that the select list dated 14/03/2019 cannot be interfered with by this Court at the instance of the petitioner association since no grievance of an association can be recognized by this Court is a matter of this nature.
32. In so far as the two petitioners in WP(C) 4909/2020 and WP(C) 4910/2020 are concerned, both these petitioners are unsuccessful candidates. They had taken part in the selection process being fully aware of the criteria laid down in the advertisement notice. Both these petitioners had failed to secure the minimum bench mark in the viva-voce test, as a result of which, their names were not included in the final select list. Since we have held that the criteria of "cut-off" mark laid down in the advertisement notice dated 01/08/2018 was valid, hence, the petitioners cannot have any claim to get their names included in the select list or get appointed against any of those three vacancies.
33. After the decision of the Supreme Court rendered in the case of Madan Lal and others Vs. State of J & K and others reported in (1995) 3 SCC 486 as well as the subsequent decision rendered in the case of Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and others reported in (2011) 1 SCC 150, law is well settled that candidates participating in a selection process and being unsuccessful, cannot turn around and challenge the selection process by terming the same to be wrong. Having regard to the facts and circumstances of the case, we are also of the considered opinion that both the individual writ petitioners, having taken part in the selection process after accepting the selection criteria laid down in the advertisement dated 01/08/2018, they were clearly estopped from assailing the select list dated 14/03/2019, on the grounds urged in the writ petitions.
34. For the reasons stated herein above, we do not find any justifiable ground to interfere with the select list dated 14/03/2019 on the grounds urged by the writ petitioners.
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35. This brings us to the last issue involved in these proceedings, which is pertaining to the question of validity of the select list dated 14.03.2019. As has been indicated herein above, Rules 10(iii) and (iv) of the Rules of 2006 provides that the Recruitment Authority will prepare the select list of candidates in order of merit as provided in Schedule 'B'. As per Rule 10(v), the select list will cease to operate on expiry of one year from the date of its publication. Going by the plain language of the Rules, it is evident that the select list had ceased to operate on the expiry of one year from the date of its publication i.e. on and from 14/09/2019. The same is also indicated in the select list dated 14/03/2019 itself. However, the said aspect of the matter is yet to be considered by the Gauhati High Court or the Government of Nagaland. Moreover, expiry of the select list was not a plea originally taken in the writ petition. Although some arguments had been advanced by both the sides touching upon the issue, we are of the opinion that this issue, at the first instance, should be left open to be decided by the competent authorities on an appreciation of the facts and circumstances of the case as otherwise, it may amount to pre-empting the competent authority from taking a decision in a matter which lies in its domain. Therefore, notwithstanding the delay that has already taken place in the matter of appointment of Judicial Officers in the Grade-III category of Nagaland Judicial Service, we refrain from expressing any opinion on the above issue at this stage and leave the matter to be decided in an appropriate proceeding, as and when the occasion arises.
36. In the case of R.K. Jain (Supra) relied upon by Mr. Dutta, the Supreme Court has categorically held that in service jurisprudence, it is settled law that it is for the aggrieved person i.e. non-appointee to assail the illegality of the offending action. Third party has no locus standi to canvas the illegality or correctness of the action. Similar view has been expressed in the case of Neetu Vs. State of Punjab and others reported in (2007) 10 SCC 614 wherein, it has been observed that when a particular person is the object and target of a petition styled as PIL, the Court has to be careful to see whether the attack in the guise of public interest, is really intended to unleash a private vendatta, personal grouse or some other malafide object.
37. It appears that recommendation for appointment of the three selected candidates has already been made by the High Court. However, as noted above, there is no order of this court extending the validity of the select list. As such, until and unless a conscious decision is Page No.# 17/17 taken by the Government of Nagaland on the question of expiry of the select list dated 14.03.2019 a writ of mandamus cannot be issued by this court for appointing the selected candidates.
38. These writ petitions are, therefore, disposed of by issuing a direction upon the Government of Nagaland to take a decision on the question of validity of the select list dated 14.03.2019 within a period of six weeks from today. The Secretary to the Government of Nagaland, Justice & Law Department to communicate the decision of the Government to the Registrar General of this High Court within six weeks. Depending on the decision of the Government of Nagaland on the issue of validity (expiry) of the select list dated 14.03.2019, further action may be initiated in the matter in accordance with law.
39. The Writ Petitions stand disposed of.
40. A copy of this order be furnished to the Official respondents for necessary compliance.
41. There shall be no order as to costs.
JUDGE JUDGE Sukhamay Comparing Assistant