Meghalaya High Court
Shri Millon Ch. Momin vs . State Of Meghalaya & Ors. on 6 April, 2021
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 18 of 2015
Date of Decision: 06.04.2021
Shri Millon Ch. Momin Vs. State of Meghalaya & Ors.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S.P. Mahanta, Sr. Adv. with
Mr. D. Dkhar, Adv.
For the Respondent(s) : Mr. N.D. Chullai, AAG with
Ms. R. Colney, GA for R. 1-3.
Mr. K.Paul, Sr. Adv. For R. 4-7.
Mr. A.G. Momin, Adv. for R. 8-11.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. The case of the Petitioner according to his writ petition is that an advertisement No. MPSC/ADVT-38/1/2013-2014/1, dated Shillong, the 4th April, 2013 (Annexure-1 of the writ petition) was issued by the Meghalaya Public Service Commission, Shillong (MPSC) for filling up of 34(thirty four) vacancies/posts for Meghalaya Police Service Officers under Home (Police) Department.
2. The Petitioner being eligible for the same and being desirous to response to the said advertisement had accordingly forwarded his application and was thereafter called for Physical Efficiency Test vide call letter dated 29.11.2013 issued by the Respondent/Chief Controller of Examinations, MPSC. After successfully completing the said test, he then appeared for the preliminary written examination held on 15.02.2014, and having passed the 1 same, he was then qualified to appear for the Mains written examination which was conducted from 8th to 16th September, 2014. Again, on clearing the said main written examination, he was called for personal interview which was conducted from 15th to 17th December 2014 which he appeared on 15.12.2014.
3. It is also the case of the Petitioner that the result of the personal interview conducted by the MPSC for the post of Junior Meghalaya Police Service Officer, Home (Police) Department was declared on 19.12.2014 vide Notification No. MPSC/Ex-C/31/2013-2014/212. The name of the Petitioner found no place in the Merit List/Result.
4. The Petitioner then visited the website of the MPSC on the internet and downloaded the statement of marks secured by the successful candidates and there he found that the Respondent No. 8 at Sl. No. 30 with Roll No. 284 had obtained 867 marks. Respondent No. 9 at Sl. No. 31 with Roll No. 304 had obtained 820 marks. Respondent No. 10 at Sl. No. 32 with Roll No. 308 had obtained 815 marks and Respondent No. 11 at Sl. No. 33 with Roll No. 140 had obtained 814 marks. Again the Petitioner located his own details, wherein it is found that he is listed at Sl. No. 20 with Roll No. 21 and that he had secured 674 marks in the Mains examination and 200 marks in the personal interview, thus securing a total number of 874 marks, higher than the total marks obtained by Respondents No. 8, 9, 10 and 11 respectively.
5. The above reproduced in a chart would appear as follows:
Petitioner/Respondent Sl. No. in Roll No. Total Mains Personal Total Statement Examination Interview Marks of Marks Marks Marks Secured (Annexure-
10)
Petitioner 20 21 674 200 874
Respondent No.8 32 284 668 199 867
Merit List No.30
Respondent No.9 34 304 615 205 820
Merit List No.31
Respondent No.10 35 308 633 182 815
Merit List No.32
Respondent No.11 13 140 604 210 814
Merit List No.33
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6. Thereafter, the Petitioner lodged a complaint dated 22.12.2014 before the Respondent/Chief Controller of Examination, MPSC with a prayer for necessary and urgent action but since no action was taken, he was compelled to approach this Court by way of a Writ petition being WP(C) No. 2 of 2015, however in the meantime, the Respondent Government authorities had appointed the Respondents No. 8, 9, 10 and 11 respectively vide Notification No. HPL.303/2014/93 dated 09.01.2015 (Annexure-14 of the writ petition) and as such, the Petitioner withdrew the said Writ Petition No. 2 of 2015 with liberty to file afresh which was allowed by this Court.
7. It is also the averment of the Petitioner that as per Reservation Policy of the State of Meghalaya, 40 percent of the post are reserved for Garo candidates and as such, he has impleaded only those candidates at Sl. No. 30, 31, 32 and 33 of the Merit List as party Respondents in this case being Respondents No. 8-11 respectively as they belonged to the Garo community.
8. The main grievance of the Petitioner is that he is more meritorious than the Respondents No. 8, 9, 10 and 11 but for the action of the Respondents/MPSC who by bringing out the Merit List dated 19.12.2014 and the subsequent appointment orders of Respondents No. 8-11 dated 09.01.2015 which is highly illegal, discriminatory and arbitrary, the Petitioner has been denied his due right.
9. The action of the Respondents being violative of the principle of natural justice as well as Articles 14, 16, 39 and 41 of the Constitution of India, the Petitioner has approached this Court with a prayer, inter alia to set aside and quash the impugned Merit List dated 19.12.2014 and the appointment order 09.01.2015 as far as it relates to Respondents No. 8, 9, 10 and 11 respectively and also to call upon the Respondents/MPSC to re-examine the selection process and to make necessary correction in the Merit List as far as the statement of marks obtained by the Petitioner is concerned.
10. Mr. S.P. Mahanta, learned Sr. counsel arguing on behalf of the 3 Petitioner has strongly contended that according to the "Statement of Marks secured by candidates in the Mains and Personal Interview" published in the Website of the MPSC, the name of the Petitioner figured at Sl. No. 20 with Roll No. 21 and as mentioned above, he secured 674 marks in the mains and 200 marks in the Personal Interview. However, the Respondents/MPSC at paragraph 5 of their Affidavit-in-Opposition has stated that the marks secured by the Petitioner in the Personal Interview was incorrectly entered through human error on account of the wrong entry made by a staff of the MPSC, actually the same marks given by the 1 st, 2nd, 3rd and 4th Member of the Interview Board to the candidate at Sl. No. 65 with Roll No. 238 was also inadvertently entered as marks obtained by the Petitioner. This according to Mr. Mahanta is a misleading statement to cover up the fault of the Commission as the consideration of the Petitioner's case will come under the Garo category for which 14(fourteen) seats were allocated, while Roll No. 238 is one Shri Ivan Benson Diengdoh from the Khasi- Jaintia Category for which 14(fourteen) seats was allocated separately and as such, there could not have been any mix up. The Reservation Policy which eventuated the Merit List stands as under:
Unreserved Category - 5 (five) vacancies
Khasi-Jaintia Category - 14 (fourteen) vacancies
Garo Category - 14 (fourteen) vacancies
OST Category - 1 (one) vacancy
11. It is further submitted that at page 35 of the petition, the details of the said candidate from the Khasi -Jaintia category at serial No. 65 with Roll No. 238 was shown to have secured 979 marks in the Mains Examination and 202 in the Personal Interview, however the total marks obtained by the Petitioner in the Personal Interview was said to be 200 and as such, if there is a mistake in entry of the marks obtained in the Personal Interview of the Petitioner with those of the marks obtained by the said candidate at Roll No. 238, the marks of the Petitioner should have been reflected as 202 and not 200 which clearly indicate that there was no mistake in entering the said marks in the Website.4
12. Yet another contention raised by Mr. Mahanta to counter the assertion of the Respondents/MPSC is that if the marks allotted by the 1st , 2nd , 3rd and 4th Member in the personal interview to Roll No. 238 are 42, 40, 40 and 41 and the marks given by the Expert Member is 39 and the marks allotted by the said 1st , 2nd , 3rd and 4th Member to the Petitioner in the personal interview are 22, 20, 20 & 21 and the marks allotted by the Expert Member is 37, then if there was a wrong entry made, how did the marks of the Expert Member allotted to the Petitioner remains at 37 and not 39. This according to Mr. Mahanta has debunk the statement of the Respondents/MPSC as far as the assertion of wrong entry in the Website is concerned.
13. Learned Sr. counsel for the Petitioner has submitted that the Petitioner after his complaint was filed and on being called by the Commission to inspect the records has also noticed that the Expert Member has marked the marks in the score sheet both with pen and pencil. The said Expert Member has also not given any individual marks under the five heads, totaling 50 marks in contrast to the other four Members who had given marks under the respective heads.
14. The Expert Member has also not given his name and date below his signature and it is evident that the Expert Member wrote something in the score sheet which was later erased, which has created some doubt and leaves scope for manipulation submits Mr. Mahanta.
15. The learned Sr. counsel has also submitted that this Court on perusal of the records of the MPSC as called for and not being satisfied with the contents thereon had directed for a preliminary inquiry by the CBI which order was assailed before the Division Bench of this Court, which vide order dated 26.10.2016 had directed that the entire matter with records be placed before the Single Judge Bench who may examine such matter and after returning final or prima facie findings, to take an appropriate decision in accordance with law. Therefore, this Court is called upon to peruse the said records and to pass necessary orders in this regard.
516. Lastly, learned Sr. counsel has fairly submitted that it is a settled law of the land that having participated in the process and having been unsuccessful, the candidate is estopped from challenging the process of the personal interview. However, due to the peculiar facts and circumstances emerging from the placement of marks of the Commission (MPSC) as regard the case of the Petitioner, this Court may be pleased to interfere with the said process.
17. Mr. K. Paul, learned Sr. counsel for the Respondents No. 4, 5, 6 & 7(MPSC) in his reply has initially taken this Court to paragraphs 6, 7 & 8 of the writ petition and has submitted that the response of the Respondents/MPSC to the averments made in the said paragraphs is found at paragraph 5 of the counter affidavit of the MPSC.
18. At paragraph 5 as stated above, the MPSC has given in great details the process carried out by the Commission as regard the tabulation of the total marks by the candidates to the post of Junior Meghalaya Police Service. It is said that after the completion of the personal interview, the marks given by the individual members to the candidates were handed over to the Chief Controller of Examination on 18.12.2014. The Chief Controller of Examination then entered the marks by hand in a blank typed format, prepared for the purpose. Thereafter, the marks were entered in the excel sheet to facilitate row-wise addition of marks for each candidate. The marks thus entered and the total score for each candidate were checked and matched against the said hand written document. The merit list was then prepared after perusal of the hand written documents, statement prepared in the excel sheet, statement of marks obtained in the written examination and the original personal interview score sheet. The statement was then printed and signed by the Chief Controller of Examination and was scanned and forwarded to the National Informatics Centre for uploading in the website of the MPSC.
19. It is further submitted that while uploading on the said website, the staff entrusted with this responsibility made a mistake while entering the marks obtained by the Petitioner to show that he secured 200 marks in the personal interview and 874 marks in total, when actually he had secured only 120 6 marks in the personal interview and 794 marks in total. The fact is that the error occurred when the same set of marks secured by the candidate at Roll No. 238 who was allotted 42, 40, 40 and 41 marks by the 1st, 2nd 3rd and 4th Member of the Interview Board was erroneously entered against the name of the Petitioner at Roll No. 21, who was actually allotted 22, 20, 20 and 21 marks by the 1st 2nd 3rd and 4th Member respectively.
20. It is the stand of the Respondents/MPSC that on the complaint of the Petitioner, the Commission along with the Petitioner and his wife had a joint scrutiny of the records on 03.01.2015 and it was found that the Petitioner secured the 16th position in the Garo merit list.
21. Mr. Paul has also submitted that from the written argument of the Petitioner, the observations made on the examination of the records by the Controller of Examination, MPSC jointly with the Petitioner under the heading " Points to be Noted" and " Points emerging after Inspection, Marks given in Viva" has been elaborately spelt out, however there are no pleadings in this regard, nor has the Petitioner sought leave of this Court to amend his petition after the said joint inspection as to what manipulation has occurred in the score sheet.
22. Asserting that this Court cannot go into this aspect of the argument of the Petitioner as it is a settled principle of law that the decision of a case cannot be based on grounds outside the pleadings of the parties as was held in the case of Trojan & Co. Ltd. v. RM. N.N. Nagappa Chettiar: 1953 SCR 789 and repeated in the case of Manohar Lal v. Ugrasen: (2010) 11 SCC 557 at paragraphs 30 to 34, by observing that the Court cannot grant a relief which has not been specifically prayed by the parties. Without an amendment of the plaint, the court was not entitled to grant the relief not asked for and no prayer was ever made to ament the plaint so as to incorporate in it an alternative case. In this case, the Petitioner has made no prayer for amendment of the writ and no rejoinder was also filed.
23. As to the prayer of the Petitioner for evaluation of the answer scripts of 7 the candidates, it is submitted that the Apex Court in the case of Himachal Pradesh Public Service Commission v. Mukesh Thakur & Anr: (2010) 6 SCC 759, has held that "it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates..."
24. The last submission made by the Respondents in this regard is by referring to the settled principle of law that once a person has taken part in the selection process and is found not fit for appointment, the said person is estopped from challenging the process of selection.
25. Mr. A.G. Momin, learned counsel for the Respondents No. 8-11 in his submission has endorsed the submission of Mr. Paul, inasmuch as, it was submitted that the Respondents No. 8, 9, 10, and 11 as well as the Petitioner have taken part in the entire selection process and from the records, it is apparent that they have secured total marks higher than that obtained by the Petitioner and as such, at this stage the Petitioner cannot challenge the selection process.
26. In this regard, the cases cited below have been relied upon by these Respondents:
i) Dr. G. Sarna v. University of Lucknow & Ors: (1976) 3 SCC 585, paragraph 15
ii) Madan Lal & Ors. v. State of Jammu & Kashmir & Ors: (1995) 3 SCC 486, paragraph 9
iii) Manish Kumar Shahi v. State of Bihar: (2010) 12 SCC 576, paragraphs 23 & 24.
27. Another limb of argument advanced by these Respondents is that in matters relating to opinion of Selection Body, the Court should be slow to interfere and the decision made by the expert body should be given due weightage by Courts. The case of The University of Mysore & Anr v. C.D. Govinda Rao & Anr: AIR 1965 SC 491 in which the Constitution Bench unanimously held that normally the Courts should be slow to interfere with 8 the opinion expressed by the experts particularly in a case when there is no allegation of malafides against the experts who had constituted the Selection Board. The Court further observed that it would normally be wise and safe for the Courts to leave the decisions of academic matters to the experts who are more familiar with the problems they face than the Courts generally can be. Another case cited in this connection is that of Dalpat Absaheb Solunke & Ors v. Dr. B.S. Mahajan & Ors: (1990) 1 SCC 305, at paragraph 12 wherein the Hon'ble Supreme Court has observed thus:
"12. ...It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction."
28. It is then prayed that the writ petition filed by the Petitioner should be dismissed in the light of the law laid down by the Hon'ble Supreme Court.
29. In reply, the learned Sr. counsel for the Petitioner has submitted that the prayer of the Petitioner is basically in respect of the Respondents No. 8-11 contending that the marks obtained by the Petitioner i.e. 674 in the written examination and 200 in the personal interview, being 874 in total is higher than the total marks obtained by the said Respondents No. 8-11 and as such, the Petitioner's name should have been included in the merit list and should have been considered for appointment on the basis thereof.
30. As to the contention of the learned Sr. counsel for the 9 Respondents/MPSC that there are no specific pleadings and the writ petition has not been amended to that extent to assail the findings and observations post the meeting with the Chief Controller of Examination, MPSC on 03.01.2015, the learned Sr. counsel for the Petitioner has submitted that there are specific pleadings in this regard at paragraphs 12, 13 and 14 of the writ petition in which the Petitioner has specifically assailed the manner in which the result and the merit list has been issued by the Respondents/MPSC.
31. On consideration of the case of the Petitioner, what is required to be decided is whether there has been a deliberate act of bias and fraud on the part of the Respondents/MPSC particularly against the Petitioner herein resulting in his being left out of the merit list which made him ineligible to be appointed.
32. To resolve the controversy and dispute as far as the merit of the Petitioner is concerned, what has to be determined is whether the actual marks obtained by the Petitioner in the personal interview are 42, 40, 40, 41 given by the 1st, 2nd, 3rd and 4th Member and 37 by the Expert Member or is it 22, 20, 20, 21 given by the 1st, 2nd, 3rd and 4th Member and 37 by the Expert Member.
33. At this point, reference is made to the initial order of this Court dated 08.04.2015 whereby the records of the Respondents/MPSC was produced before the Court in sealed cover and vide order dated 01.06.2016, this Court has broken the sealed cover containing the said record in the presence of the parties and has also requested the parties to go through the documents in the presence of the Court Master.
34. Upon hearing the parties and on being led to the contents of the records mentioned above, it is seen that this Court vide order dated 16.06.2016 had inter alia directed the In-charge Superintendent of Police, CBI to conduct a preliminary inquiry and has also caused the Registry to hand over thirteen bunch of viva-voce score sheets, tabulation sheets, etc. to Mr. N.G. Khamrang, In-charge Superintendent of Police, CBI.
1035. The order dated 16.06.2016 was assailed by the Respondents/MPSC before the Division Bench of this Court in W.A. No. 67 of 2016 and the same was disposed of vide order dated 26.10.2016, the relevant portion of the said order being the conclusion part which is as follows:
".......the report made by the CBI and the entire material is now in the sealed covers. We have not opened such covers nor find any necessity to do so in this appeal. In the given set of circumstances, we are of the view that interest of justice shall be served if the entire material with the record of the writ petition is placed before the learned Single Judge, who may examine such material as deemed necessary and take a considered decision in the matter in accordance with law.
Obviously, after returning final or at least prima facie finding on the contentious issues, the aspects relating to CBI report may also be examined by the learned Single Judge and appropriate decision thereupon could be taken in accordance with law.
Having regard to the circumstances and for appropriate further proceeding in the writ petition, it is considered appropriate that the order dated 16.06.2016 and directions therein be treated to be in abeyance until specific finding is reached in the writ petition as indicated hereinbefore. As observed, after such finding, appropriate orders shall follow in accordance with law......."
36. Thereafter, on being remanded, this Court has heard the parties and the relevant records and materials have been placed before this Court as directed by the Division Bench. In course of hearing, for proper adjudication of the matter, it is deemed necessary that some of the materials kept in sealed covers may be opened. This Court accordingly with the consent of the parties have agreed that the sealed covers/package containing the score-sheets, marks of Main exam, etc., as well as those containing the answer scripts of Respondents No. 8, 9, 10 & 11 be opened in presence of the parties in open court, which is done so vide order dated 05.03.2021. In the said order, this Court has observed "which were kept in sealed covers are required to be opened at this stage", which indicate that a prima facie findings have been reached to necessitate opening of the said materials mentioned above to facilitate full and proper adjudication of the matter between the parties.
37. On perusal of the records, this Court has noticed that the mark sheet for 11 15.12.2014, the date of Personal Interview of the candidates, including the Petitioner at Roll No. 21 who figured at Sl. No. 4 of the same, the marks given by the 1st 2nd 3rd and 4th Member are 22, 20, 20 and 21 respectively and the Expert Member has also given 37 marks to him, in total being 120, while those given to Shri Ivan Benson Diengdoh at Roll No. 238 are 42, 40, 40 and 41and 39 marks by the Expert Member, the total being 202. The same set of marks, as far as the Petitioner is concerned, are found recorded in the score sheet, wherein only the name of the candidates under the Garo category were entered. Again, the same set of marks were also found in the score sheet, wherein the names of all the candidates who had appeared for the personal interview were entered. Here the seal, signature and date, being 18.12.2014 was stamped with the word "Confidential" at the top of every page. In the same manner, the total marks, that is, the marks obtained in the Mains Examination and Personal Interview combined was entered in another sheet properly stamped with seal and with signature and date, being 18.12.2014, wherein the name of the Petitioner appeared at Sl. No. 54 with Roll No. 21 and the marks entered are 674 and 120, the total being 794 was clearly indicated. On this observation, this Court is convinced that the Petitioner has received 120 marks in the Personal Interview and 674 marks in the Mains Examination and the total is 794 and that there is no indication of any manipulation of the marks as alleged.
38. Of course, as far as the score sheet of the Expert Member is concerned, it is true that there has not been any entry of specific marks under the head of 'Personality', 'Capacity Command and Confidence', 'Intelligence', 'General Knowledge' and 'Special Knowledge' but total marks was entered under the head 'Total'. This Court would direct the Respondents/MPSC to ensure that in future the same should not happen again. However, in the context of the contention of the Petitioner, this would not really matter as the same format was followed in the case of all the candidates and the Petitioner was not singled out as far as no entry of marks against each head is concerned. As submitted by the learned Sr. counsel for the Petitioner, even if one takes the total marks to be given by the Expert Member as 50 and hypothetically 12 speaking, if the Petitioner ought to be given the maximum marks by the Expert Member and the marks given to the rest of the candidates, including the Respondents No. 8, 9, 10 and 11 remains the same as was given by the Expert Member in the said score sheet, the final tabulation of marks obtained in the Personal Interview would still be 22, 20, 20 and 21 and 50 which equals 133 plus 674 obtained in the Mains, the total of 807 will not help the Petitioner whose marks would still fall short of the total marks obtained by the Respondent No. 11 who had secured the least marks from amongst the Respondents No. 8, 9, and 10 herein being 814 marks in total (paragraph 7 of the writ petition).
39. The primary issue, that is, the factual aspect of the matter having been decided, this Court does not find it necessary to cause the report of the preliminary inquiry by the Central Bureau of Intelligence (CBI) to be opened at this stage. The same is however kept on record in sealed cover.
40. In view of the findings and observation made above, this Court is of the considered opinion that the Petitioner has not been able to make out a case for interference by this Court and the same is hereby dismissed as devoid of merits.
41. Consequently, the case law and authorities cited by the Respondents are not required to be discussed in depth as this Court has reached the conclusion it has as above.
42. Any interim order passed in this instant petition is hereby discharged.
43. Since the relevant records of MPSC are no longer required in this case, Registry is directed to return the same to the Chief Controller of Examination, MPSC.
44. Petition disposed of. No cost.
Judge Meghalaya 06.04.2021 "D. Nary, PS"
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