P.K.MUSAHARY, J. - (1.) HEARD Mr. Imti Longchar, learned counsel for the petitioner. Also heard Mrs. Y. Longkumar, learned Government Advocate, Nagaland and Mr. Z.N.Ngullie, learned counsel appearing for respondent No.5. None appears for respondents No. 6 to 12.
(2.) THE brief facts of the case as narrated by the petitioner is that she was initially appointed on temporary basis as Language Typist (Lotha), Text Book Publication Section in the Directorate of School Education, Nagaland, Kohima. A post of Language Assistant (Lotha) fell vacant after completion of her 12 years in service due to promotion of a Language Assistant to the post of Language Officer (Lotha). THE petitioner is a Matriculate and she applied for promotion to the post of Language Assistant but the respondent authorities did not consider her case and in her place private respondent no.5 was appointed to the said post through backdoor. Being aggrieved, the petitioner filed W.P.(C) No.81(K) of 2001. THE said Writ Petition was disposed of by judgment and order dated 23.1.2002 directing the concerned authorities to issue advertisement for the post of Language Assistant (Lotha) and complete the entire process of recruitment within a period of three months from the date of receipt of the certified copy of the order. It was provided in the said order that the petitioner as well as the respondents shall apply for the post and their cases should be considered by the concerned authorities subject to their qualification and suitability at the time of applying for the post. In compliance to the aforesaid order of this court the department advertised the said post and in response to the same both the petitioner and the private respondent No.5 submitted their application. THE private respondent No.5 was appointed to the said post of Language Assistant (Lotha). THE petitioner again filed a Writ Petition being W.P.(C) No.223(K)/03 and it was disposed of by this court vide judgment and order dated 17.5.2005 quashing the appointment order of the private respondent no.5 holding that she was not qualified for the said post. Thus, the said post was again advertised on 16.4.2006. It is alleged that the Additional Director of School Education with sole intention to accommodate the private respondent No.5 issued an addendum dated 29.4.2006 providing that for the post of Language Assistant (Lotha) a certificate of proficiency in Lotha awarded by the Kyong Academy & Lotha Literature Committee, Wokha will also be treated as "equivalent to that of passed in HSLC with Lotha Language". THE petitioner and the private respondent No.5 participated in the said interview. As stated by the petitioner, she was placed at sl No.17 in the result of the written test. THE oral interview was conducted but right after oral interview of the petitioner, the Chairman of the Selection Board fell ill due to which the viva voce discontinued but strangely, although the respondent No.5 could not be interviewed, she was appointed as Language Assistant by the respondent No.4 vide impugned order dated 31.8.06. THE petitioner has filed this 3rd Writ Petition for quashing the appointment of the respondent No.5 and for consideration of her promotion to the post of Language Assistant (Lotha) as per Government Notification No.AR-8/26/81 dated 24.9.1981. Mr. Longchar, learned counsel for the petitioner submits that the post of Language Assistant (Lotha) is a promotion post to be filled up by the departmental candidates working as Language Typist (Lotha) and the said post should be filled up by promotion as per aforesaid Govt. Notification and as such the respondent-authorities had committed illegality by taking resort to direct recruitment. Secondly, he submits hat the private respondent No.5 was over aged at the time of making application for the said post and she is not entitled to relaxation in upper age limit as she is not in the Govt. Service. Thirdly, it is submitted that the selection committee had to postpone the oral interview due to sudden illness of the Chairman who was admitted in Hospital. The oral interview reached Sl. No.17, i.e. the petitioner and thereafter since no oral interview continued, the other candidates, including the respondent No.5 could be interviewed. The oral interview was not completed but the interview board prepared a list of 32 selected candidates recommending the name of respondent No.5 for appointment to the post of Language Assistant (Lotha). It has been submitted that the interview was not complete and it was a sham one inasmuch as the authorities concerned had a pre-plan to appoint the respondent No.5 by any means and as such the impugned appointment of respondent No.5 is liable to be quashed and set aside through judicial review. Referring to the case of Md. Sohrab Khan Vs. Aligarh Muslim University & Ors., reported in (2009) 4 SCC 555, learned counsel for the petitioner persuaded that the recruitment must be conducted according to the prescribed educational qualification. In the present case, the oral interview remained incomplete due to illness of the Chairman of the Selection Board and by publishing a selection list on the basis of incomplete recruitment process, a serious irregularity has been committed vitiating the entire selection. The selection list so prepared cannot be treated as valid or acted upon. On relaxation of essential qualification he relied on Secretary, A.P. Public Service Commission Vs. B. Swapna & Ors., reported in (2005) 4 SCC 154, wherein it has been held that the selection committee has no power to relax the essential qualification.
(3.) THE State Respondents as well as Private Respondent No.5 who is holding the post in question have filed their respective counter affidavit. Mr. Z.N.Ngullie, learned counsel for the respondent No.5, makes elaborate submissions on the factual aspects of the matter and placed several decisions of the Apex Court namely Madanlal & Ors. Vs. State of J&K & Ors., reported in (1995) 3 SCC 486; Dhananjay Malik & Ors. Vs. State of Uttaranchal & Ors, reported in (2008) 4 SCC 171 and Suneeta Aggarwal Vs. State of Haryana & Ors., reported in (2000) 2 SCC 615.;