Meghalaya High Court
Shri Damir Ch Marak vs The State Of Meghalaya And Ors on 20 May, 2015
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(C) No.61/2014
Shri. Damir Ch. Marak,
S/o Shri. Gleeford S. Marak,
R/o Kapasipara, P.O./P.S. Baghmara,
South Garo Hills :::: Petitioner
-Vs-
1. The State of Meghalaya represented by the Commissioner
& Secretary, Personnel & Administrative Reforms (B), Department,
Shillong.
2. The District Selection Committee, South Garo Hills, Baghmara,
represented by its Chairman, Govt. of Meghalaya.
3. Smti. Sylvia Tera G. Momin,
D/o (L) Backstar Marak, R/o Rangdokram, Baghmara,
South Garo Hills District, Meghalaya. :::: Respondents.
BEFORE THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioner : Mr. SG Momin, Adv, For the Respondents : Mr. ND Chullai, Sr. GA Mr. S Sen Gupta, GA Mr. KC Gautam, Adv for respt.No.3 Date of hearing : 23.04.2015 Date of Judgment & Order : 20.05.2015 JUDGMENT AND ORDER By this writ petition, the petitioner is assailing the procedure followed by the District Selection Committee for selection of the candidates for the post of Surveyor advertised in the advertisement dated 15.12.2009 and also prayed for quashing the impugned order dated 27.06.2012 for appointing the respondent No.3 to the said post of Surveyor on the recommendation of the DSC by following a procedure, which according to the petitioner, is illegal, arbitrary and contrary to the rules. Page 1 of 23
2. Heard Ms. SG Momin, learned counsel for the petitioner, Mr. ND Chullai, learned Sr.GA assisted by Mr. S Sen Gupta, learned GA appearing for the respondents No.1 & 2 and Mr. KC Gautam, learned counsel for the respondent No.3.
3. The concise fact of the case, shorn detail, sufficient for deciding the matter in issue in the present writ petition is recapitulated. The writ petitioner, after completion of H.S.S.L.C., had undergone training course in survey in Meghalaya Survey School run by the Govt. of Meghalaya, which includes chain survey for cadastral purposes, map tracing, area extraction etc. After successful completion of which, a certificate dated 27.04.2005 for the petitioner was issued by the said Institution. The Member Secretary, District Selection Committee, South Garo Hills, Baghmara (Deputy Commissioner, South Garo Hills, Baghmara) issued an advertisement being No.SGH/DSC.24/2000-01 dated Baghmara, the 15th December, 2009 for recruitment to different posts including the post of Surveyor; and the educational qualification for the post of Surveyor is Matriculate or above and should have diploma certificate from any Govt. recognized Polytechnic Institution in survey works. The Member Secretary, District Selection Committee, South Garo Hills, Baghmara had clearly mentioned in the said advertisement dated 15.12.2009 that the candidates applying for the post shall have to take written test/viva voce test, whenever conducted by the District Selection Committee, South Garo Hills, Baghmara. There will be no TA/DA for candidates appearing for the written test/interview. In the said advertisement dated 15.12.2009, the number of posts of Surveyor advertised for recruitment was not mentioned except the name of post i.e. post of Surveyor.
Page 2 of 23
4. The Govt. of Meghalaya, Personnel & Administrative Reforms (B) Department, Shillong issued an Office Memorandum being No. PER (AR) 167/82/23 dated Shillong, the 3rd July, 1982 prescribing the composition and functions etc. of the District Selection Committee for the Districts in the State of Meghalaya and also the procedure for direct recruitment to various categories of posts which come under the purview of the Committee. Under the said Office Memorandum dated 03.07.1982, there shall be a District Selection Committee for each District, consisting of a Chairman, a Vice Chairman, a Member Secretary and two other Members. The District Selection Committee (for short 'DSC') shall conduct written examinations and/or interview for the purpose of recommending candidates suitable for appointments by direct recruitment to different categories of posts, which are borne in the offices/establishments of the Heads of Departments, District or Sub-divisional/Subordinate offices, and which do not come under the purview of the Meghalaya Public Service Commission or Departmental Selection Committee. The selection of persons for appointment as causal and work- charge employees shall fall outside the purview of the District Selection Committee. For recruitment to any post for which the minimum qualification is Matriculate/H.S.L.C. or above, there shall be a written examination as per the syllabus prescribed for the purpose and to be followed by an interview; and for recruitment to any post for which the minimum qualification is Matriculate/H.S.S.L.C. or above, and for which some extra physical fitness, skill or technical qualification are necessary, tests shall be conducted for such extra physical fitness, skill or technical requirements, besides the written examination as per the prescribed syllabus, to be followed by an interview. The said Office Memorandum dated 03.07.1982, also provides as to how the written examinations and interviews are be conducted by the DSC, and also prescribes the syllabus and also that the written examinations will be for 250 marks and interviews/viva voce will be for 50 marks. For easy Page 3 of 23 reference, the said Office Memorandum dated 03.07.1982 is reproduced hereunder:-
GOVERNMENT OF MEGHALAYA PERSONNEL AND ADMINISTRATIVE REFORMS (B) DEPARTMENT, SHILLONG.
No.PER (AR) 167/82/23 Dated Shillong, the 3rd June, 1982.
OFFICE MEMORANDUM Subject: Composition, functions, etc of the District Selection Committee for the District in the State of Meghalaya and the procedure for direct recruitment to various categories of posts which come under the purview of the Committee.
In supersession to this Department's office Memorandum No.PER(AR)97/78/Part-I/24, dated 30th March, 1981, the Government of Meghalaya have decided that the composition, functions, etc., of the District Selection Committee and the procedure for direct recruitment to various categories of posts which come under the purview of the Committee shall be as follows :-
1.1. Composition: - There shall be a District Selection Committee for each District, consisting of a Chairman, a Vice-Chairman, a Member- Secretary and two other Members.
1.2. Chairman: - By an official Chairman not below the rank of Additional Deputy Commissioner to be nominated by Government for a period of one year.
1.3 Vice Chairman: - By a non-official Vice-Chairman to be nominated by Government for a period of one year. He shall preside over any meeting of the District Selection Committee in case the Chairman is unable to attend.
1.4. Members: - Two non-official Members to be nominated by Government for a period of one year.
1.5. Member-Secretary:- The Sadar Sub-Divisional Officer of a District or any other officer not below the rank of Extra-Assistant Commissioner shall be the Member-
Secretary.
2. Honorarium, Travelling Allowances and Daily Allowance :-
A non-official Vice-Chairman and non-official Members of the District Selection Committee will be entitled to monthly honorarium and will also get travelling allowance and daily allowance for attending meetings of the District Selection Committee at rates sanctioned by Government from time to Page 4 of 23 time.
3.1 Functions:- The District Selection Committee shall undertake to conduct written examinations, tests and/or interviews for the purpose of recommending candidates suitable for appointments by direct recruitment to different categories of posts, which are borne in the offices/establishments of the Heads of Departments, District or Sub- Divisional/Subordinate Offices, and which do not come under the purview of the Meghalaya Public Service Commission or Departmental Selection Committee. 3.2 The posts which do not come under the purview of the Meghalaya Public Service Commission or the Departmental Selection Committee are those covered, for the time being, by Office Memorandum No. PER(AR)246/80/15, dated, 26 th February, 1981 as per Annexure-I attached, and by any other Government Circulars/Office Memoranda, etc., that may be issued by Government from time to time.
3.3 As mentioned in the Office Memorandum No. th PER(AR)246/80/15, dated, 26 February, 1981, recruitment to Grade IV posts and post of Driver, Mechanic, etc., in the Secretariat or Offices of the Heads of Departments, shall continue to be made through Departmental Selection Committee.
3.4 Selection of persons for appointment as casual and work- charge employees shall fall outside the purview of the District Selection Committee.
4.1 Examination, interviews, etc,:- For the purpose of recruitment to the categories of posts which fall under the purview of the District Selection Committee, it is required that written examinations, tests, and/or interviews shall be as follows :-
(i) That all written examinations/ interviews to be conducted by the District Selection Committee shall be as per the following syllabus prescribed:-
a) General English including Precis writing, Essay writing and Drafting 100 Marks
(b) Elementary Mathematics and Elementary Science 100 Marks
(c) General Knowledge 50 Marks
(d) Interview 50 Marks Total = 300 Marks
(ii) For recruitment to any post for which the minimum qualification is Matriculate/H.S.L.C. or above, there shall be a written examination as per the syllabus prescribed for the purpose, to be followed by an interview.Page 5 of 23
(iii) For recruitment to the post of Lower Division Assistant, a speed test in type-writing is also necessary besides a written examination and interview.
(iv) For recruitment to any post for which the minimum qualification is Matriculation/H.S.L.C., or above, and for which some extra physical fitness, skill or technical qualification is necessary, tests shall be conducted for such extra physical fitness, skill or technical requirements, besides the written examination as per the prescribed syllabus, to be followed by an interview.
(v) For recruitment to any post for which the educational qualification required is below Matriculation/H.S.L.C., where some extra physical fitness, skill or technical qualification if necessary, tests shall be conducted for such extra physical fitness, skill or technical requirements, to be followed by an interview.
(vi) For recruitment to Grade IV posts, i.e. posts of peon, duftry or any other equivalent post, for which the minimum qualification prescribed is below Matriculation/H.S.L.C., and for which no extra physical fitness, skill or technical qualification is required, an interview only shall be conducted.
4.2 The examination, for which a minimum qualification has been prescribed, should be of the same standard as that of the North -Eastern Hill University or the Meghalaya Board of School Education, as the case may be.
4.3 Speed test in typewriting as mentioned in Para 4.1(iii) shall be conducted and no one shall be eligible for appointment as Lower Division Assistant if his/her speed in type-writing is less than 30 words per minute. This is necessary as there are no separate posts for typists in the District Offices.
4.4 Tests for extra physical fitness, skill or technical requirements shall be conducted as may be prescribed by the appointing authorities at the time of their requisitions for suitable candidates from the District Selection Committee.
5.1 Procedure- The District Selection Committee shall ascertain/assess the overa ll positions of vacancies that may occur in every forthcoming year in the month of November, or earlier, every year and shall, after issuing necessary advertisements for the posts, conduct examinations, tests and/or interviews before the end of December. The procedure of issuing advertisements by individual offices is hereby abolished.
5.2 Notwithstanding orders contained in Para 5.1., it shall also be incumbent upon the different offices/appointing authorities to intimate vacancies that are anticipated or available in their offices/establishments from time to time. Page 6 of 23 5.3 While intimating the anticipated or available vacancies, the appointing/requisitioning authorities shall indicate where necessary, the technical qualifications required for such posts and also the extra physical fitness skill or technical requirements prescribed by them to the District Selection Committee.
5.4 In making recruitment to such posts where some extra physical fitness, s k i l l o r t e c h n i c a l qualification is required, t h e D i s t r i c t Selection Committee shall invite the appointing authority to depute a technical expert to assist it. 5.5 In making recruitment to other posts, the District Selection Committee is authorised to invite experts from the appointing authority, if and when considered necessary. It shall be open to the appointing authority, if it feels the need for it, to intimate to the District Selection Committee that an adviser should be appointed to assist the District Selection Committee and the reasons for doing so.
5.6 In Para 5.4. above, the appointing authority shall have to nominate and depute a suitable expert, and in Para 5 above, an adviser may be appointed only if the District Selection Committee agrees to its need.
5.7 The District Selection Committee may hold written examinations and/or tests even at different Sub-Divisional Headquarters, if necessary. It will, however, be desirable to hold interviews only at District Headquarters so that proper parity in assessing relative merits can be maintained. 5.8 A panel of names in order of merit for the category of posts shall be prepared and published by the District Selection Committee immediately after the examinations, tests and/or interviews, to be valid for a period of one year with effect from the date of its publication. Each Head of Office/Appointing Authority desiring to appoint candidates to vacancies in various posts in his office, may write to the District Selection Committee for providing candidates from the merit list for appointment. It shall be incumbent upon the District Selection Committee to furnish suitable candidates to the Head of Office/Appointing Authority strictly from the merit list. The list forwarded by the District Selection Committee shall be strictly followed by the Head of Office/Appointing Authority while making appointments. The Head of Office/Appointing Authority shall have no choice in the matter of over-looking any person senior in the merit list duly recommended by the District Selection Committee. 5.9 A copy of the list prepared and published by the District Selection Committee shall also be furnished to Government in Personnel and Administrative Reforms (B) Department immediately.
5.10 If, during the course of any year, the list for any category of posts earlier prepared by the District Selection Committee gets exhausted, a fresh list may be prepared, Page 7 of 23 as often as necessary, after following the regular procedure.
5.11 For leave vacancies, exceeding a period of 21 days, appointments shall be made by obtaining suitable candidates from the District Selection Committee.
5.12 In furnishing recommendations to various offices under Para 5.8 above, the District Selection Committee shall keep in mind that for long - chain vacancies, the names of those holding leave vacancies in other offices should be furnished first, and suitable replacements should be provided from the merit list for consequential leave vacancies. 5.13 The system of secrecy by using roll numbers and codes should be followed by the District Selection Committee in the matter of recruitment of candidates so as to ensure fair and impartial treatment to all candidates.
6. Fees for examiners and paper setters - Fees for examiners and paper setters shall be paid at rates as may be sanctioned by government from time to time.
7.1 Recruitment Policy - In drawing a list of candidates for appointment in various offices, the District Selection Committee shall take into consideration the number of posts reserved for Scheduled Tribes, etc., in the light of Government Resolution No. PER. 222/71/138, dated, 12th January, 1972 as amended vide Office Memoranda No. PER. 222/71/141, dated, 23rd April, 1972, No. PER.
222/71/Pt. III/22, 25th November, 1976, No.
dated,
PER(AR)64/79/15, dated, 12th September, 1979 and No. PER.(AR)257/81/8, dated, 19th December, 1981 and also Office Memorandum No. PER. 272/72/5, dated, 18th December, 1972, appended as Annexure II (a), (b), (c), (d),
(e) and (f) and such other instructions as may be issued from time to time.
7.2 For some category of Grade IV posts, such as Malis, Sweepers, etc., it is necessary that relaxation be made in regard to reservation for tribal candidates, whenever suitable local candidates are not available.
8.1 Temporary/Ad hoc appointments - Direct recruitment to various posts falling within the purview of the District Selection Committee are to be made only with prior consultation with the respective District Selection Committees as soon as vacancies occur. If any District Selection Committee is not in a position to do so, it may be necessary, in the exigency of public interest, to resort to temporary appointments or appointments on ad hoc basis for a period of two months at a time for which approval shall have to be obtained from the Personnel and Administrative Reforms (B) Department.
Page 8 of 23
8.2 The offices/appointing authorities are, therefore, required to have all posts filled up in a regular manner through the District Selection Committee and not to allow the persons appointed temporarily or appointed on ad- hoc basis to continue beyond a period of two months.
8.3 Defiance of these orders will be adversely viewed by Government.
9.1 Seniority - Seniority of the persons appointed through or after the recommendation of the District Selection Committee shall prevail over any other persons appointed without the recommendation of the District Selection Committee.
9.2 It follows, therefore, that the persons appointed on temporary basis without the recommendation of the District Selection Committee or appointed on ad hoc basis, even if appointed earlier, shall rank junior to persons appointed through or after the recommendation of the District Selection Committee, even if the latter are so appointed at any later date, unless otherwise ordered by or in consultation with the Personnel and Administrative Reform (B) Department.
10. Staff -The District Selection Committee shall be provided with necessary staff as may be required from time to time.
11. Effect - These orders shall take effect from the date of issue of this Office Memorandum.
H.A.D. SAWIAN, Special Secretary to the Government of Meghalaya Personnel and Administrative Reforms (B) Department."
5. In response to the said advertisement dated 15.12.2009 for the post of Surveyor, the petitioner and 27 (twenty seven) others applied for the said post of Surveyor. The petitioner and 27 (twenty seven) others were called for the written examination. On passing of the written examination, the petitioner was furnished with a call letter dated 17.05.2011 calling for personal interview to be conducted on 03.06.2011 along with 7 (seven) others candidates. The personal interview was for 125 marks and the written examination was for 200 marks. About a year after the viva voce test which was held on 03.06.2011, the result of the test was declared on 26.04.2012 by Page 9 of 23 issuing the Notification being No. SGH/DSC.4/PT/2006-07/ dated Baghmara, the 26th April, 2012, declaring the list of the selected candidates in order of merit for the post of Surveyor and in the said Notification dated 26.04.2012, the name of the respondent No.3 appeared at Srl.No.1 and the name of the petitioner appeared at Sl.No.5. The respondent No.3 on the recommendation of the DSC was appointed as Surveyor by the impugned Order dated 27.06.2012. As the petitioner had reasonable doubt as to the procedure followed by the DSC for recommendation of the respondent No.3 to the post of Surveyor, he filed an application dated 26.11.2013 under the RTI Act, 2005 to the Deputy Commissioner, South Garo Hills, Baghmara for furnishing the information regarding five points. The copy of the said application dated 26.11.2013 under the RTI Act, 2005 is available at Annexure-5 to the writ petition and it reads as follows:-
"To, The Deputy Commissioner, South Garo Hills, Baghmara, Meghalaya.
Dated Tura, the 26 Nov. '13 Sub: Information under RTI Act, 2005-Reg.
Sir, I am to request you to kindly furnish following information under RTI Act, 2005.
1) Details of candidates who were selected for interview for the post of Surveyor, Advertised in Shillong Times newspaper, Advertisement No.SGH/DSC-53/2006-07/4.
2) Names of the members of the Selection Committee who conducted the interview for the same.
3) Details of Selection procedure for the post.
4) Marks obtained in the interview of selected candidates with details thereof.
5) Name of the members of the Selection Committee who were incharge when the final result was displayed.Page 10 of 23
An IPO of Rs.10/- is attached as an application fee.
Thanking You, Damir Ch Marak Kapasipara, South Garo Hills Present Add:- Bonepa Atilla, Tura, West Garo Hills, Meghalaya-794002."
In response to the said RTI application dated 26.11.2013, the Member Secretary, DSC, South Garo Hills, Baghmara under his letter dated 11.12.2013 furnished the information asked for by the petitioner under his said RTI application dated 26.11.2013 and also the total marks for the written test and personal interview scored by the petitioner and 7 (seven) others including the respondent No.3 for the post of Surveyor to the petitioner. The said letter of the Member Secretary, DSC, South Garo Hills Baghmara and the marks scored by the petitioner and the said 7 (seven) others in the said tests furnished to the petitioner are quoted hereunder:-
"GOVERNMENT OF MEGHALAYA OFFICE OF THE DEPUTY COMMISSIONER (DSC) SOUTH GARO HILLS :::: BAGHMARA th No.SGH/DSC/-5/RTI/2007-08/ 5, Dated Baghmara the 11 December, 2013 From: Shri. A.M. Sangma, MCS, Member Secretary, DSC, South Garo Hills, Baghmara.
To: Shri. Damir Ch. Marak, Kapasipara, South Garo Hills, Present add:- Bonepa Atilla, Tura, West Garo Hills, Meghalaya-794002.
Sub: Information under RTI Act, 2005.
Ref: Your Application dated Tura the 26th November, 2013.
Sir, As per queries raised by you under the RTI Act, 2005, I am to furnish the point wise information as follows:-
Point 1. - 28 (Twenty Eight) applicants are selected for written test as per statement enclosed and thereafter 8 (Eight) candidates are selected for personal interviews out of which 5 (five) candidates were declared passed.Page 11 of 23
Point 2. (1) Shri. B D R Tiwari, IAS Deputy Commissioner & Chairman, DSC (2) Shri. Dimse A Sangma, Member Secretary, DSC (3) Shri. Silseng R Marak, V/Chariman, DSC (4) Shri. Barklin R Marak, Member, DSC (5) Shri. Peter Prakash M Sangma, Member, DSC Point 3. - Extracted copy of the DSC procedure enclosed herewith.
Point 4. - Marks score sheet enclosed herewith.
Point 5. (1) Shri R P Marak, MCS.I I/C, Deputy Commissioner & Chairman (DSC).
(2) Shri. P M Sangma, MCS, Member Secretary (DSC) (3) Shri. Dimse A Sangma, Member Secretary, DSC (4) Shri. Silseng R Marak, V/Chariman, DSC (5) Shri. Barklin R Marak, Member, DSC (6) Shri. Peter Prakash M Sangma, Member, DSC Yours faithfully, Sd/-
Shri. A.M. Sangma, MCS, Member Secretary, DSC, South Garo Hills, Baghmara.
Total Marks of the Written and the Personal Interview for the post of Surveyor Sl. Name of the candidate Written Viva Grand Scaled Scaled No. Marks Voce Total Down Down (200) (125) (325) to 50 total
1. Sylvia T.G. Momin (*respt.No.3) 141 68 209 27.2 168.2
2. Charline R. Marak 143 62 205 24.8 167.8
3. Jenny Merry S. Marak 135 74 209 29.6 164.6
4. Edward Wanchuk R. Marak 140 57 197 22.8 162.8
5. Damir Ch Marak (*Petitioner) 126 85 211 34 160
6. Thanksbirth Slyer R. Marak 123 76 199 30.4 153.4
7. Anggo Cenza Ch. Marak 125 56 181 22.4 147.4
8. Friseng R. Marak 120 54 174 21.6 141.6 Sd/- Sd/-
(Peter Prakash, MCS) (R.P. Marak)
I/C D.C. & Chairman (DSC)
Sd/-
26.4.2012
(V. Chairman)
Page 12 of 23
Sd/-
(P.M. Sangma)
26/4
(Member Secretary)
Sd/-
26.4.2012
(DSC Member)"
6. It is the case of the petitioner that scaling down of the total marks only for Viva Voce test from 125 to 50 marks, when the petitioner had scored the highest marks of 211 in Grand Total out of 325 marks, in order to select the respondent No.3 is arbitrary and unpredictable. It is clear from the total marks scored by the petitioner and others furnished by the Member Secretary, DSC, South Garo Hills, Baghmara under his said letter dated 11.12.2013 to the petitioner that the petitioner had scored highest marks in total i.e. 211 marks out of the Grand Total of 325 marks. It is also the case of the petitioner that the procedure followed by the DSC, South Garo Hills, Baghmara for recommendation of the respondent No.3 is contrary to the said Office Memorandum dated 03.07.1982, which clearly provides as to how written examinations and viva voce test are to be conducted and also the syllabus for the written examinations inasmuch as, the total marks for the written examinations is 250 marks and total marks for viva voce test is 50 marks but the DSC had conducted the written examinations for 200 marks and viva voce test for 125 marks initially and later on, scaled down the marks only for viva voce test from 125 to 50 marks in order to select the respondent No.3. From the admitted fact, it is clear that the procedure followed by the DSC, South Garo Hills, Baghmara for written examination and Viva Voce test are contrary to the procedures prescribed under the said Office Memorandum dated 03.07.1982. It is the further case of the petitioner that the DSC, South Garo Hills, Baghmara cannot arbitrarily scale down only the total marks of Viva Voce test from 125 to 50 marks in order to partly follow the procedure prescribed under the said Office Memorandum dated Page 13 of 23 03.07.1982 for only Viva Voce test while neglecting the procedure prescribed for written examination i.e. 250 marks. It is also the case of the petitioner that there is no justification on the part of the DSC in changing the rule of the game after the same is played. It is also the further case of the petitioner that there was no indication in the advertisement dated 15.12.2009 that any condition or procedure for written examination, interview and syllabus prescribed by the Govt. of Meghalaya under the said Office Memorandum dated 03.07.1982, would be changed or altered after the recruitment tests are completed.
7. The respondent No.2 DSC and the respondent No.1 State Govt. had filed joint affidavit-in-opposition wherein, the respondents are not denying the composition, functions etc. of the DSC for each District in the State of Meghalaya mentioned in the said Office Memorandum dated 03.07.1982. The respondents in their affidavit-in-opposition admitted that the procedure for direct recruitment to various categories of posts which come under the purview of the Committee prescribed under the said Office Memorandum dated 03.07.1982 of the Govt. of Meghalaya are to be followed by the DSC for direct recruitment to various categories of posts. The DSC i.e. respondent No.2 is also not denying that the written examination was for 200 marks and Viva Voce test was for 125 marks and the petitioner had scored highest marks of 211 in Grand Total of 325 marks. The case of the respondents No.1 and No.2 in their affidavit-in-opposition is that the Viva Voce test of 125 marks was reduced to 50 marks in terms of the procedure prescribed in the Office Memorandum dated 03.07.1982 i.e. 50 marks only for Viva Voce test but the respondents had neglected to comply the procedure prescribed for the written examination part. Unavoidable inference would be that the DSC did not follow the procedure prescribed under the said Office Memorandum of the Govt. of Meghalaya dated 03.07.1982, while the Page 14 of 23 State respondent and the respondent No.2 DSC (District Selection Committee) are admitting in their affidavit-in-opposition that the procedure prescribed under the said Office Memorandum of the Govt. of Meghalaya dated 03.07.1982, are to be followed for direct recruitment to various categories of posts.
It is now well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. The Apex Court (Four Judges) in Hukam Chand Shyam Lal v. Union of India & Ors: (1976) 2 SCC 128 held that:
"18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performances are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided will be violative of the fundamental principles of natural justice. Now, in the present case, if the telephones of the appellants were to be disconnected on the ground of misuse, then they had to give, in consonance with the principles of natural justice, opportunity to the appellants to explain their conduct before taking action under Rule 427 read with Rules 416 and 421. Resort to the wrong and more drastic course provided in Rule 422, on a ground which was not germane to an action under that Rule, vitiates the impugned order, particularly when it is manifest that in making the impugned order, the General Manager was influenced more by this ground and less, if at all, by the existence of 'public emergency' certified by the Delhi Administration."
8. The Apex Court (Constitution Bench) in S.G. Jaisinghani v. Union of India & Ors: AIR 1967 SC 1427 held that "the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be continued within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in Page 15 of 23 general, such decisions should be predictable and the citizen should know where he is". In the present case, the decision of the DSC is clearly against the settled rule of law that the decision should be made by the application of known principles and rules, in general, such decisions should be predictable and the citizen should know where he is. One cannot predict in the given case that after the petitioner scored the highest marks of 211 in the Grand Total of 325 marks, only the marks of the Viva Voce test and not the marks of the written test will be changed after the tests are over in order to recommend the respondent No.3. It is also clear that when conducting the written examination and Viva Voce test by the DSC in order to select the respondent No.3, the DSC was not exercising their power in the manner prescribed by the said Office Memorandum of the Govt. of Meghalaya dated 03.07.1982. The Apex Court (Constitution Bench) in Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors: (1987) 1 SCC 378 held that it is a settled law that a constitutional authority cannot do indirectly what is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision. This is precisely what was pointed out by Mukherjea, J speaking for the Court in K.C. Gajapati Narayan Deo v. State of Orissa: 1954 SCR 1, 12: AIR 1953 SC 375:
"In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The legislature cannot violate the constitutional prohibitions by employing an indirect method."
9. It is clear from the ratio laid down in Dr. D.C. Wadhwa's case (Supra) that even the constitutional authority cannot do indirectly what is not permitted to do directly. In the present case, the DSC cannot adopt the Page 16 of 23 procedure for direct recruitment for the post within the purview of the DSC which are not prescribed by the said Office Memorandum of the Govt. of Meghalaya dated 03.07.1982 inasmuch as, the DSC cannot recommend the respondent No.3 in violation of the procedure prescribed and also the Apex Court in Hukam Chand Shyam Lal's case (Supra) clearly held that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. The Apex Court in Rajasthan Public Service Commission v. Kaila Kumar Paliwal & Anr: (2007) 10 SCC 260 held that the recruitment to a post must be made strictly in terms of the Rules operating in the field. Even the Selection Committee in absence of any express power conferred upon it cannot relax such essential qualification. Paras 21 & 22 of the SCC in Kaila Kumar Paliwal's case (Supra) read as follows:-
"21. Recruitment to a post must be strictly in terms of the Rules operating in the field. Essential qualification must be possessed by a person as on the date of issuance of the notification or as specified in the Rules and only in absence thereof, the qualification acquired till the last date of filing of the application would be the relevant date. (See Ashok Kumar Sharma v. Chander Shekhar: (1997) 4 SCC 18: 1997 SCC (L&S) 913, U.P. Public Service Commission v. Alpana: (1994) 2 SCC 723: 1994 SCC (L&S) 742 and Harpal Kaur Chahal v. Director, Punjab Instructions: 1995 Supp (4) SCC 706).
22. Even where their exists a provision for relaxation, for example relaxation in age, the same must be strictly complied with. (See Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy: (2006) 8 SCC 671: (2007) 1 SCC (L&S) 23 and P.K. Ramachandra Iyer v. Union of India: (1984) 2 SCC 141:
1984 SCC (L&S) 214)."
10. It is now well settled that the rules of the game cannot be changed after the game was played. The Apex Court (Three Judges) in K. Manjusree v. State of Andhra Pradesh & Anr: (2008) 3 SCC 512 held that: Page 17 of 23
"27. .......... Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them - P.K. Ramachandra Iyer v. Union of India: (1984) 2 SCC 141: 1984 SCC (L&S) 214, Umesh Chandra Shukla v. Union of India: (1985) 3 SCC 721: 1985 SCC (L&S) 919 and Durgacharan Misra v. State of Orissa: (1987) 4 SCC 646: 1988 SCC (L&S) 36: (1987) 5 ATC 148."
In the present case, the rules of the game i.e. total marks prescribed for the viva voce test had been changed after the written test as well as viva voce test were over. Over and above, changing the rules of the game shall certainly violate the rights of the petitioner guaranteed under Articles 14 & 16 of the Constitution of India inasmuch as, the petitioner had already secured the highest marks. The Apex Court (Three Judges) in Tej Prakash Pathak & Ors v. Rajasthan High Court & Ors: (2013) 4 SCC 540 held that drastic power of altering other rights already accrued to a citizen or individual is required to be exercised in a manner that it does not conflict with any other constitutionally guaranteed rights, such as, Articles 14 & 16 of the Constitution of India. After such findings, the Apex Court in Tej Prakash Pathak's case (Supra) referred to a larger Bench for decision as to whether the ratio laid down by the Apex Court (Three Judges) in K. Manjusree's case (Supra) and other cases that "changing the rules of the game after the game was played is impermissible" will apply to the change of procedure for selection to impose a more rigorous scrutiny for selection without conflicting the constitutional rights of the candidates guaranteed under Articles 14 & 16 of the Constitution of India. The fact of the present case is diametrically different from the fact of the case in Tej Prakash Pathak's case (Supra). The instant case is squarely covered by the findings of the Apex Court (Three Judges) in Para 10 of the SCC in Tej Prakash Pathak's case (Supra) that the rights accrued to the petitioner or citizen cannot be altered in conflict Page 18 of 23 with the rights of the petitioner guaranteed under Articles 14 & 16 of the Constitution of India. Over and above, the DSC altered the rules of the game not for imposing a more rigorous scrutiny for selection of the candidates and also changing the rules of the game in the present case is in conflict with the rights of the petitioner guaranteed under Articles 14 & 16 of the Constitution of India. Paras 10 & 15 of the SCC in Tej Prakash Pathak's case (Supra) read as follows:-
"10. Under the scheme of our constitution an absolute and non- negotiable prohibition against retrospective law-making is made only with reference to the creation of crimes. Any other legal right or obligation could be created, altered, extinguished retrospectively by the sovereign law-making bodies. However, such drastic power is required to be exercised in a manner that it does not conflict with any other constitutionally guaranteed rights, such as, Articles 14 and 16, etc. Changing the "rules of the game" either midstream or after the game is played is an aspect of retrospective law-making power.
15. No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the "rules of the game" insofar as the prescription of eligibility criteria is concerned as was done in C. Channabasavaih v. State of Mysore: AIR 1965 SC 1293, etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the "rules of the game" stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger Bench of this Court. We, therefore, order that the matter be placed before the Hon'ble Chief Justice of India for appropriate orders in this regard."
11. At the last there was a faint attempt from the side of the respondents that the petitioner is barred from filing the present writ petition as he had already participated in the concerned selection process by the principle of estoppel or acquiescence. Yes, the petitioner may be barred from filing the writ petition after he had participated in the selection process on the ground that the result of the selection process is not palatable to him, but the writ petitioner is not barred, even if he participated in the selection process, Page 19 of 23 by principle of estoppel or acquiescence in questioning as to the legality or otherwise of the recommendations of the candidates inasmuch as there cannot be estoppel against the law. The Apex Court in Dr. Prit Singh v. S.K.Mangal & Ors: 1993 Supp (1) SCC 714 held that:
"13. We fail to understand as to how the Vice-Chancellor who himself was of the opinion that the appellant did not possess the requisite qualifications for the post of Principal and who had refused to approve the said appointment, later approved the same appointment on November 13, 1987 with effect from October 16, 1987. It has rightly been submitted on behalf of the respondents that the Vice-Chancellor approved the appointment after October 15, 1987 when the amendment was made in the prescribed qualifications for the post of Principal of a recognized College of Education. If he was not eligible for appointment in terms of the prescribed qualifications on the date he was appointed by the Managing Committee subject to the approval of the Vice-Chancellor, then later he cannot become eligible after the qualifications for the post were amended. As such we are in agreement with the view expressed by the High Court, that on the date of the appointment the appellant did not possess the requisite qualifications and as such his appointment had to be quashed."
12. Mr. ND Chullai, learned Sr.GA appearing for the respondents No.1 & 2 in his usual fairness had submitted that under the law or under the principle of estoppel, the writ petitioner who had already participated in the selection process cannot be barred from filing the writ petition challenging the recommendations of the candidates illegally, but the writ petitioner is barred for filing the writ petition questioning the composition of the Selection Committee or assessments of the writ petitioner by the Selection Committee or comparative performances of the writ petitioner and the selected candidates according to the rule/prescribed procedure.
13. The Apex Court in a catena of cases held that the respondents who do not possess the requisite qualifications under the rules or the essential eligibility criteria for the post mentioned in the advertisement are not Page 20 of 23 eligible candidates; and there cannot be estoppels against the law as such, failed candidates cannot be stopped from challenging the illegality in preparation of the select list. The Apex Court in Union of India & Ors v. S. Vinodh Kumar & Ors: (2007) 8 SCC 100 held that:-
"18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil: (1991) 3 SCC 368: 1991 SCC (L&S) 1052: (1991) 16 ATC 928: AIR 1991 SC 1607) (See also Rashmi Mishra v. M.P. Public Service Commission: (2006) 12 SCC 724: (2007) 2 SCC (L&S) 345:
(2006) 11 Scale 5).
19. In Chandra Prakash Tiwari v. Shakuntala Shukla: (2002) 6 SCC 127: 2002 SCC (L&S) 830, it was held: (SCC p. 148, para 32) "32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status - the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhavan pertaining to the doctrine of estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla v. Akhilesh Kumar Shukla: 1986 Supp SCC 285: 1986 SCC (L&S) 644 a three-Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise." It was further observed: (SCC p. 149, para 34) "34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not 'palatable' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process."
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20. We are, however, not oblivious that there are certain exceptions to the aforementioned Rules but we are not concerned therewith in the present case."
The Apex Court in Raj Kumar & Ors v. Shakti Raj & Ors:
(1997) 9 SCC 527 held that:-
"16. ...... The entire procedure is also obviously illegal. It is true, as contended by Shri. Madhava Reedy, that this Court in Madan Lal v. State of J&K: (1995) 3 SCC 486: 1995 SCC (L&S) 712: (1995) 29 ATC 603 and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is stopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law."
The Apex Court in Dr. Prit Singh v. S.K. Mangal & Ors: 1993 Supp (1) SCC 714 held that:
"13. We fail to understand as to how the Vice-Chancellor who himself was of the opinion that the appellant did not possess the requisite qualifications for the post of Principal and who had refused to approve the said appointment, later approved the same appointment on November 13, 1987 with effect from October 16, 1987. It has rightly been submitted on behalf of the respondents that the Vice-Chancellor approved the appointment after October 15, 1987 when the amendment was made in the prescribed qualifications for the post of Principal of a recognized College of Education. If he was not eligible for appointment in terms of the prescribed qualifications on the date he was appointed by the Managing Committee subject to the approval of the Vice-Chancellor, then later he cannot become eligible after the qualifications for the post were amended. As such we are in agreement with the view expressed by the High Court, that on the date of the appointment the appellant did not possess the requisite qualifications and as such his appointment had to be quashed."
14. It is clear that the petitioner scored the highest marks of 211 in grand total and the respondent No.3 scored total marks of 209 after the Page 22 of 23 written test and viva voce test were completed but scaled down later on. For the foregoing reasons in the above paras, this Court is of the considered view that the procedure adopted by the DSC for recommending the respondent No.3 for appointment to the post of Surveyor advertised in the said advertisement 15.12.2009 is arbitrary, illegal and also in violation of the procedure prescribed under the said Office Memorandum of the Govt. of Meghalaya dated 03.07.1982 which are to be followed by the DSC and also the DSC in their affidavit-in-opposition had admitted that the procedure prescribed under the said Office Memorandum of the Govt. of Meghalaya dated 03.07.1982 are to be followed by the DSC for direct recruitment to various categories of posts within the purview of the DSC. Accordingly, the recommendation of the District Selection Committee, South Garo Hills Baghmara for appointment of the respondent No.3 Smti. Sylvia Tera G Momin to the post of Surveyor under their letter No.SGH/DSC/24/2011-12/1 dated 17.05.2012 and the impugned appointment order dated 27.06.2012 for appointment of the respondent No.3 as Surveyor are hereby quashed.
15. Writ petition is allowed.
16. Parties are to bear their own costs.
JUDGE Lam Page 23 of 23