S KIHOLA Vs. STATE OF NAGALAND
LAWS(GAU)-2018-5-203
HIGH COURT OF GAUHATI
Decided on May 10,2018

S Kihola Appellant
VERSUS
STATE OF NAGALAND Respondents

JUDGEMENT

S Serto, J. - (1.) This is a petition under Article 226 of the Constitution of India praying for issuance of appropriate writ or order or direction directing the respondents to implement the provisions of Rule 8 (ii) and Rule 18 (1) (iii) of the Nagaland Public Service Commission (State Civil and other Services) Recruitment Rules, 2008 (Recruitment Rules, 2008, in short) in the recruitment process of Asstt. Mechanical Engineering (AME) in the department of Works & Housing.
(2.) Heard Ms. K. Kihki, learned counsel for the petitioner. Also heard Mr. C.T. Jamir, learned senior counsel appearing on behalf of the respondent No.3 i.e. NPSC and Mr. K. Wotsa, learned Sr. Government Advocate appearing for the State respondent Nos. 1 and 2.
(3.) The respondent No.3, vide Advertisement No.4/2016, dated 19/10/2016 invited applications for filling up several vacancies in posts and services under the Government of Nagaland including one post of Asstt. Mechanical Engineer (AME) (Class-1 Gazetted) (Mechanical Engineering), under Works & Housing Department, 4 posts of Ranger (Class-II Gazetted) under the Department of Forest, Ecology, Environment and Wildlife, one post of Workshop Calculation & Science (Class-III Non-Gazetted) under the Directorate of Employment, Skill Development & Entrepreneurship and one post of Motor Vehicle Inspector (Class-III Non-Gazetted) under the Transport Department. Subsequently, vide Notification No.NPSC/ADVT-1/04, dated 26/10/2016, the respondent No.3 issued a Corrigendum on the advertisement issued earlier stating that 1(one) post of Asstt. Mechanical Engineer (AME) (Class-I Gazetted) at Item No.6 of the advertisement, under Works & Housing Department is reserved for Backward Tribe - Yimchunger. The writ petitioner being eligible for the said 4 posts applied for all of them. Accordingly, she was issued Admit Card to appear for the combined examination conducted for all the 4 posts. On 28/6/2017, vide Notification No.NPSC/C-5/2012, result of the written Combined Technical Services Examination 2016 was declared, however, the petitioner's roll number did not find place among the roll numbers of the persons declared qualified to face viva voce/interview. Being aggrieved, the petitioner has come to this court contending and claiming as follows; (i) That for regulating the recruitment examinations conducted by Nagaland Public Service Commission (NPSC) the Government of Nagaland, Department of Personnel & Administrative Reforms (Personnel "B" Branch) notified a Rule namely, Nagaland Public Service Commission (State Civil & other Services) Recruitment Rules, 2008 under Article 320(3)(b) of the Constitution of India. And at Rule 8 (ii) and Rule 18 (I) (III) of the said Rules it is provided that when Public Service Commission invites applications for filling up a post or posts under the Government of Nagaland, if the number of applicants does not exceed 4 against a particular post, the Commission, without subjecting the candidates to go through written examination should call them straight to face interview and assess their suitability based on the same only. However, in this case though there were only two applicants for the post of Asstt. Mechanical Engineer (AME), the respondent No.3 had subjected the petitioner and the other candidate to go through written examination, as such, the provisions of Rule 8 and Rule 18 of the Recruitment Rules 2008 have been violated. (ii) That in the case of the posts at Item No.17 (a) and (b) of the same advertisement i.e. 1 post of Mechanical Supervisor (Class-III Non-Gazetted) under the Printing & Stationery Department, and 3 posts of Foreman (ClassIII Non-Gazetted) under the Printing & Stationery Department, the respondent No.3 without letting the applicants go through the written examination directly called them for interview for assessment of their suitability to the posts by following the provisions of Rule 8 and Rule 18 of the Recruitment Rules, 2008. Therefore, the acts of respondent No.3 was discriminatory against her (the petitioner) and the other candidate. Further, the learned counsel for the petitioner by referring to paragraphs 10, 15 and 17 of the affidavit-in-opposition filed by the respondent No.3 submitted that the petitioner's application for the other 3 posts besides the post of Asstt. Mechanical Engineer cannot be the reason for not applying the provisions of Rule 8 and Rule 18 of the Recruitment Rules, 2008 as stated in those paragraphs. To accept such proportion of law would amount to denying the petitioner's right of applying for such other post for which also she was eligible. The learned counsel also submitted that it was the duty of the respondent No.3 to first scrutinize and determined the number of candidates who applied for each post advertised and thereafter, as per the number of applicants, apply the provisions of Rule 8 and Rule 18, and conduct the recruitment examination accordingly. For failure on their part to carry out such important scrutiny, and act accordingly, the petitioner cannot be made to suffer. The learned counsel, went further and submitted that there was no way the petitioner could come to know the number of candidates who applied for the post of Asstt. Mechanical Engineer since the records of the NPSC was not at her disposal, therefore, she cannot be faulted for not complaining before the examination was conducted.;


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