T. Elvis Yanthan and Others vs State of Nagaland and Another

H.K. Sema, J.—This writ petition has been filed by 13 selected candidates for recruitment to the post of Primary School Teachers under the Deputy Inspector of School in Wokha District in the State of Nagaland.

I have heard Mr. B.N. Sarma, learned Counsel for the Petitioners as well as Mr. E.Y. Renthungo, learned Counsel for the Respondents.

Brief facts leading to the filing of the present writ petition are those. The Petitioners along with others appeared before the written test for recruitment to the post of Primary Teachers in Wokha District on 4.2.1994. The post advertised was for 13 posts. Interview was held on 8.2.1994 and Petitioner were duly selected and recommended for appointment by the Selection Board. The said selection has been declared as null and void by the 2nd Respondent by its letter dated 4.3.1994 (Annexure - A/13). Being aggrieved the present petition has been filed.

The ground of assailing the impugned order of cancellation are two folds:

i) that the declaration of the result of the test/interview as null and void by the 2nd Respondent is arbitrary and unreasonable; and

ii) that the impugned order dated 4.3.94 was passed in violation of the principle of natural justice inasmuch as the affected persons were not given opportunity of being heard.

The reasons for declaring the selection result as null and void by the impugned order dated 4.3.94 are as under:

Interview was conducted within a short period of time, as a result, many intending candidates could not appear the interview due to short notice.

Mother tongue is the medium of teaching specially in Primary School and linguistic problem is mere in every school where non-linguistic teachers are appointed in Primary Schools.

Interview should not be confined only to ad-hoc appointees and also fresh Applicants be given chance to appear.

Further, the Dy. Inspector of School, Wokha was directed to conduct fresh; interview giving at least 15 days time for the intending candidates. It was further, observed that due to linguistic problem, candidates from Sema community be given opportunity to avoid further problem and complications.

Point No. 1. It is admitted fact mat by a notice dated 17.7.1994 the Dy, Inspector of Schools, Wokha has notified fixing the date of 27.1.1994 for written test and 28.1.1994 for oral interview. This was postponed and ultimately the written test was held on 4.2.94 and viva - voce test on 8.2.94. It was also stipulated in the notice that mark for written test is 100 and marks for the oral test is 200. This itself vitiates the examination which I shall be dealing at the appropriate time. From the notice dated 17.1.94, it appears that only 10 days lime was given to the candidates This, in my view, is too short a time for giving wide coverage to the entire District residing in the remote and far flung areas of the District, keeping in view of the geographical topography and difficult terrain of the location of the Naga village and also poor communication system. Normally, the candidates residing in the remote villages has to walk several days by jungle tracking to reach the Distries HQs. In this view, it cannot be said that giving 10 days time in between the notice and conducting of the test is not a short time by no stretch of imagination. In my view, keeping in view the aforesaid circumstances, it is definitely too short a time thereby depriving many eligible and prospective candidates of their chances to appear before the written test examination. In this connection, Mr. B.N. Sarma has made a submission that the fact that out of 108 candidates sponsored by the Employment Exchange, 85 persons appeared before the written test (which represents 78%) would show that the candidates had information about the date of written test and interview. I am unable to accept this submission for more than one reasons. Firstly, the fixing of time is too short and an arbitrary date. Secondly, if enough ''time could have been given, may be all 108 or more candidates could have appeared because many educated youths residing in the remote areas are facing unemployment problems.

Point No. 2. The post for which requisition was sent was the post for Primary School teachers mostly in the remote villages in the District. It is a common knowledge that in the Primary Schools in villages although text Books are printed in English and in Roman scripts (because Nagas do not have their own scripts), the teaching are in mother tongue. In Wokha District which is the District HQs of Lotha tribe, there are many Sema Villages under the District. In Nagaland different tribes speak different dialects. Naturally one tribe cannot teach in the village of another tribe in their mother tongue. Therefore, if a Lotha teacher is appointed as Primary School Teacher in Sema Village, definitely he will have linguistic problem and appointing him as a teacher in Primary School in the village where he does not know the language would benefit none. In this connection, Mr. B.N. Sarma referred to the order dated 21.2.94 (Annexure-A/1) of the reply affidavit appointing one John Shimray, B.A (Hon) M.A. on ad-hoc basis, as Graduate Teacher at the Govt. Primary School in Lotha area. From the qualification of Mr. John Shimray, it is clear that he was appointed to upgraded Primary School in which the medium of instruction is in English. Therefore, there is no force in the contention of Mr. B.N. Sarma.

This apart, counter on behalf of the Respondents have been filed. In para 9 of the counter, it has been specifically averred that mother tongue is the medium of instruction in Primary Schools and as such Text Book are printed in different mother tongue for different areas. It" teachers are selected from another tribe who is not familiar with the mother tongue for a particular area then it will not be possible to teach mother tongue in that particular area or school. It is further averred that two posts of Primary School Teachers in Sema area were selected from other tribe by the Selection Board.

Having considered the aforestated reasons, it cannot be said that the order dated 4.3.94 declaring the selection result as null and void is arbitrary. The competent authority was fully justified in declaring the selection result as null and void.

The next contention of Mr. B.N. Sarma that the order impugned has been passed in violation of the principle of natural justice inasmuch as the persons affected were not given opportunity of being heard has also no force, By now it is well settled principle of law that by virtue of his name appearing in the select list, he has only a legitimate expectation for appointment, but no indefeasible right had been accrued to the selectee and therefore the selectees are not entitled to any opportunity of hearing before cancellation of select list. (See Union Territory of Chandigarh Vs. Dilbagh Singh and others, It is also well settled principle of law that by inclusion of candidates name in the select list, they do not acquire any right to the posts (See Sankarasan Dash, Appellant v. Union of India Respondent AIR 1991 SC 1012)

This leads me to one important legal issue which has not been urged by any of the parties, but borne out from the records, left to be considered.

In the notice dated 17.1.1994 (Annexure- A/5) issued by the Dy. Inspector of Schools, Wokha notifying the date and time of written test and oral interview, it clearly by mentions as under:

DATE AND TIME

27.1.94 10 A.M. Written Test 2 Hrs. -100 Marks

28.1.94 10 A.M. Oral interview - 200 Marks.

From the assignment of marks for written test and oral interview, it clearly appears that the marks assignee for viva voce test is doubled than that of the written test. It has been settled by a catena of decisions by the Apex Court that marks of oral interview cannot be more than that, of the written test mark,, because if oral interview marks are more then there is likelihood of the abuse of the process of power and misuse of power.

Avoiding multiplicity, in Ashok Kumar Yadav and Others Vs. State of Haryana and Others, a Constitutional Bench of the Apex Court had observed at page 475 as under:

The spread of marks in the viva voce test being enormously large compared to the spread of marks in the written examination, the viva voce test tended to become a determining factor in the selection process, because even if a candidate secured the highest marks in the written examination, he could be knocked out of the race by awarding him the lowest marks in the viva voce test and correspondingly, a candidate who obtained the lowest marks in the written examination could be raised to the top most position in the merit list by an inordinately high marking in the viva voce test. It is therefore obvious that the allocation of such a high percentage of marks as 33.3 per cent open the door wide for arbitrariness, and in order to diminish, if not eliminate the risk of arbitrariness, this percentage need to be reduced.

The Apex Court further observed in Ashok Kumar Yadav (Supra) that any method which makes the viva voce test a determining factor in the selection process resulting in a candidate secaring high marks in the written examination being easily knocked out in the race by awarding mm low marks in the viva voce test and vice'' versa is arbitrary and is liable to be struck down on that ground. The Apex Court-further held in Ashok Kumar (Supra) that where the examination consists of written [examination followed by a viva voce test, the marks allocated for the viva voce test shall not exceed 12.2 per cent of the total marks taken into account for the purpose of selection.

In the case at hand, 200 marks in the viva voce test whereas in the written test 100 marks was assigned, the spread of marks in the viva voce test being enormously large compared to the spread of marks in the written examination, it has clearly open the door for favouratism and nepotism. The practice of assignment of higher marks in the viva voce test is frought with danger of favouratism, nepotism and it would ultimately lead to open back-door entry to the service. This practice has been deprecated by a catena of decisions of the Apex Court. On this score alone, the selection is arbitrary and liable to be set aside.

In the result, there is no merit in this writ petition and it is accordingly dismissed. Respondent Nos. 1 and 2 are directed to re-advertise the post in terms of the following directions:

the posts of Primary School Teachers in Wokha District shall be advertised in local papers indicating the vacancy posts and posts reserved for linguistic teachers;

besides advertisement in local newspapers, it shall also be broadcast in the All India Radio in all the local dialects in order to give wide publicity, mentioning the post and dale of written test and interview.

the marks allocated for the viva voce lest shall not exceed 13% of the total marks taken into account for the purpose of selection.

The date of conduct of the written test by the Selection Board must be notified well ahead of time by giving minimum one month''s notice.

for the smooth conduct of the written and oral tests, Respondent No. 2 himself or in his absence, the Respondent No. 2 shall depute a responsible officer of the Directorate to conduct the written test as well as oral test.

after the written test examination is duly published notifying the selected candidates, the same shall be hung on the Notice Board and fixing a date of oral test which shall also be notified giving sufficient time not less than 30 days for conducting the viva voce test.

no candidates for linguistic teacher of one tribe shall be recommended from another tribes. In the event of no suitable candidate in the post of Linguistic teacher is available, the same shall not be filled up by non linguistic teacher, but it shall be carried forward.

The principles laid down aforesaid shall be strictly followed in all the selection board for selection to the posts of Primary School Teachers in all the Districts in Nagaland till the relevant Rules are framed for the purpose.

Before parting with the record, I shall constrain to observe that it is high time that the competent Authority should seriously consider the need for framing of Rules regulating the procedure for recruitment to the posts of Primary teachers.