LAWS(GAU)-1996-5-49

MAOMEREN AO Vs. STATE OF NAGALAND & OTHERS

Decided On May 17, 1996
Maomeren Ao Appellant
V/S
State of Nagaland and Others Respondents

JUDGEMENT

(1.) The advertisement No. 2/94-95 dated 3rd Dec., 1994 was issued inviting applications for filling up various posts under different Departments of the Government of Nagaland, Item 8 of the said advertisement concerns 2 posts of SDO (Electrical). The petitioner applied for the post of SDO (Electrical). Qualification prescribed for this post is Degree in Electrical Engineering from a recognised University. The petitioner graduated from the University of Kerala in Bachelor of Technology (Electrical and Electronics) in March, 1993. A call letter was issued on 5.4.95 by the Deputy Secretary, NPSC asking the petitioner to appear for the written test to be held on 29.4.95. The petitioner was allotted Roll No. 25. Having qualified in the written test, the petitioner was called for oral test to be held on 24.8.95. It is averred that as soon as oral test was over, tabulation of marks Was done and results were declared on the same day and the members of the Nagaland Public Service Commission signed on 24.8.95. In the said tabulation, the petitioner was placed at serial 2 and 4th respondent was placed at serial 3. The petitioner contends that he had seen the result on notice board on 25.8.95. It is further averred that subsequently the result was revised and in the said revision the 4th respondent was placed at serial 2 in place of the petitioner. The petitioner protested against the replacement of his name by the name of the 4th respondent. The petitioner's contention is that once result is declared it becomes final and no change can be brought about. It accordance with the results declared on 24.8.95, the petitioner secured 176 marks in written test and 58 marks in oral test, whereas the 4th respondent secured 155 marks in written test and 70 marks in oral test. In the revision changes have been made in respect of marks allotted to oral test. Marks in respect of written test remained the same. In the revised tabulation 140 marks have been allotted to the 4th respondent in oral test, whereas the petitioner has been allotted 116 marks. This has brought about change in the total of marks in respect of the petitioner and the 4th respondent. The petitioner contends that revision is illegal and it should be set aside and the result as declared on 24.8.95 should stand. On the basis of revision the Secretary, NPSC issued the letter of recommendation on 25th Aug., 1995. The letter of recommendation is in respect of two candidates inasmuch as there are only two regular vacancies in the Department in terms of the advertisement. The bone of contention is in respect of one post. The two persons recommended for appointment to the two vacant posts of SDO (Electrical) Class I under the Power Department is as follows :

(2.) Respondent No. 2, NPSC has filed affidavit. Annexure E is the result dated 24.8.95. Name of Shri Abenthung Ngullie is at serial 1 and the Roll No. is shown as 3. The name of the petitioner is at serial 2 against Roll No. 25. In column of marks figure 234 is shown against the name of the petitioner and 258 against the name of Shri Abenthung Ngullie. The name of the 4th respondent does not figure. Number of post is shown as two. In the remarks column the word 'cancelled' is hand written and the date is 25.8.95. There is no initial. In other words there is nothing to show as to who signed it. In the reserve list at Annexure G of the Commission's result sheet the name of the 4th respondent appears and in the marks column figure 225 is shown. In the remarks column the word 'cancelled' is written and it is dated 25.8.95. The said reserve list was also prepared on 24.8.95. All the four members of the Commission had signed. In Annexure F of the file of the Commission the word 'revised' is written on the top. And in the revised list the name of the petitioner is out and in his place the name of the 4th respondent has been put. In the revised list also all the four members of the Commission signed. It is dated 25.8.95. In the subsequent revision the name of the petitioner is put in reserve list in place of the 4th respondent. Annexure 1 of the Commission's affidavit is tabulation and aggregation of interview marks for the oral test held on 24.8.95 and the maximum marks shown in the tabulation is 100 for the oral test. The said document is signed by the Chairman of the Commission. At this stage it may be stated that factually the oral interview held on 24.8.95 was for 100 marks. This is the factual position. The question that remains to be decided is whether change could have been brought about as regards the total marks allotted to oral test from 100 marks to 200 marks. Mr. I. Jamir, learned Senior Govt Advocate appearing on behalf of the Commission submits that on detection of some mistake in the result published on 24.8.95, the Commission revised the result sheet by rectifying the mistake. The defect that was found out was that, whereas in respect of all other Departments, 200 marks were allotted for oral interview, through in advertence only 100 marks had been allotted for oral test when interview were held on 24.8.95 in respect of the two posts of SDO (Electrical). According to Mr. Jamir the Commission thought that there would be discrimination if equal marks were not allotted in respect of all the Departments. On careful perusal of the affidavit filed on behalf of the Commission, I am of the view that there is no question of any discrimination in the present case inasmuch as 100 marks were applied to all the candidates who came for interview in respect of the two posts of SDO (Electrical). The yard-stick of equality will have to be applied only among equals. If the candidates were tested for 100 marks there can be no question of discrimination. The point that calls for my decision is whether it is open to the Commission to enhance the marks of oral interview from 100 to 200 marks without conducting interview for 200 marks. In other words the question is whether it is reasonable and proper to enhance marks of oral interview from 100 to 200 marks without testing the candidates for 200 marks. The factual position is that the candidates were tested for 100 marks and not for 200 marks in the oral interview. In his view of the matter, it appears no candidate can be said to have earned credit in respect of the enhanced 100 additional marks. The position would have been different if the candidates were again tested for the additional 100 marks. The reason for effecting the change in the earlier result declared on 24.8.95 is given by the Secretary in his note dated 25.8.95 which is reproduced:

(3.) It is contended on behalf of the petitioner that in fact the 4th respondent is not a local indigenous person. As such the 4th respondent could not have been selected by the Commission on the footing that he is not a local Naga. In support of this contention Mr. Iralu, learned counsel for the petitioner has referred me to certain documents including Electoral Roll containing the names of the father of the 4th respondent, the mother and the name of the 4th respondent himself. According to the petitioner the 4th respondent is the son of an Assamese gentleman, although the mother belongs to the Sema Community. As regard this contention Mr. B.N. Sarma, learned counsel for the 4th respondent submits that whether the 4th respondent is a local person or not should not matter as far as the application for the post and selection thereof by the Commission is concerned. It is entirely for the competent authority to see if appointment is to be given at all. It is also submitted by Mr. B.N. Sarma whether the 4th respondent has a certificate to the effect that he is an indigenous local inhabitant is not open to the petitioner to challenge under Art. 226 of the Constitution before the High Court. According to Mr. B.N. Sarma the question as to whether the 4th respondent is an indigenous local inhabitant of the State or not would involve disputed facts and therefore this Court cannot enter into this issue. It is submitted that such dispute can be settled only by a competent civil Court. In this regard the submission made by Mr. B.N. Sarma is reasonable and has force. It appears the petitioner cannot really take a grievance as far as the candidature of the 4th respondent is concerned. The only question is whether the 4th respondent has been rightly selected or whether there is flow or infirmity in the selection process and in the declaration of result by the Commission. In this regard, the submission of Mr. Iralu is therefore not acceptable. Mr. Iralu's another submission is that as soon as selection is made and the results are declared the duty of the Commission should come to an end and no change can be brought about in the manner in which it has been done in the present case. Mr. Iralu submits that in the present case cancellation was done, that also without any signature and clear approval of the Commission on 25.8.95, whereas selection was over on 24.8.95 inasmuch as all the members of the Commission had already signed on the result sheet on 24.8.95. Shri Y. Sema himself is a member of the Commission. According to Secretary's note it was at his instance that the change was sought to be made. Mr. B.N. Sarma, learned counsel for the 4th respondent submits that selection becomes final only after approval is accorded by the Government. Therefore, according to him change could be validly made by the Chairman before the list of selected candidates was formally sent to the competent authority.