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Judgment
R.S., CJ
[1] This appeal has been filed challenging the order of the learned Single Judge dismissing the writ petition.
[2] Notice was taken by respondents and by consent, main appeal is taken up for hearing at the admission stage. Heard Mr. Th.Khagemba, learned counsel for the appellant and Mr. H.S.Paonam, learned senior counsel for the private respondents as well as Mr. R.K.Umakanta, learned Government Advocate for the State respondents.
[3] The subject matter of the present dispute is between the appellant and the private respondents on selection to a post of Assistant Cinema Operator-Unreserved category as per the notification dated 28th September, 2016. The relevant portion of the advertisement is at Annexure/A/5, page 56 and it is as follows:-
"GOVERNMENT OF MANIPUR
DIRECTORATE OF INFORMATION & PUBLIC RELATIONS
NOTIFICATION
Imphal, the 28th September,2016
No. 1/169/96-DIPR (Pt): In pursuance of the approval of the Government letter No. 01/03.2014-IPR (PS) (Pt.) dated 28/09/2016 of Secretariat Information & Public Relations Department and in supersession of the previous notification issued in this regard. It is hereby informed that candidates who have been sponsored by the Employment Exchanges of Manipur for the following posts may collect the prescribed application forms from the office of the undersigned on payment of Rs. 300/-(General/OBC) and Rs. 200/- (State respondents/Sc) from 1st October to 5th October, 2016 during hour as per the following schedule:
Date
Name of the Employment Exchange
`Sl. No
Name of post
No. of post
Category
UR
ST
OBC (Meitei)
OBC M/ (Pangal)
PWD
13.
Asst. Cinema Operator
3
2
1
-
-
-
Filled in application form along with relevant documents should reach the office of the undersigned on or before 3.00 p.m. of 10thOctober, 2016 and Admit Card will be issued between 3:00 p.m. to 5.00 on the same day on receipt of the valid documents.
The viva voce of the posts of Grade-iv (Peon) and the technical test with viva voce of the posts of Assistant Cinema Operator and Driver will held w.e.f. 13th October, 2016............"
[4] Mr.Khagemba, learned counsel for the appellant was posed with a specific question as to whether the appellant/petitioner is claiming to the 2 Unreserved category posts or to the one post reserved for Scheduled Tribe.
Learned counsel fairly and emphatically submits that the present appellant/petitioner is a candidate who applied for the unreserved/open category post of Assistant Cinema Operator and not for Scheduled Tribe category. Therefore, learned counsel submitted that he is not pursuing the case as against the ST candidate, respondent No.5, namely, Shri Paheel Rephowl Sello. The appellant's stand that he is not pursuing the case against the respondent No.5 in the present appeal is recorded and the 5th respondent stand discharged of further adjudication.
[5] This leaves the issue with relation to the appointment of the respondent No.3 alone represented by Mr.H.S.Paonam, learned senior counsel. For the post of Assistant Cinema Operator, applicants have to submit relevant documents so as to reach the Information and Public Relations Department on or before 10th October, 2016. It appears that the appellant along with other eligible candidates applied to the said posts. They also submitted some documents to support their application. The procedure for filling up the post was completed after viva-voce. The third respondent, Shri Elangbam Harekrishna and one Heisnam Shyam Singh have been selected. As far as respondent No.4, there was no challenge even before the writ Court. It is only in relation to the respondent No.3 that the writ petitioner challenged the selection inter-alia pleading that on the relevant date, namely, 10th October, 2016, the third respondent did not have a valid Certificate to consider him eligible for appointment for the post of Assistant Cinema Operator. This plea was raised on the basis of a document supplied in response to an application under Right to Information Act. The appellant/ petitioner relied on the document, Annexure-R/3, RTI application dated 10th December, 2016 received by the State Public Information Officer on 13.12.2016 and the reply given on 11.1.2017 enclosing the documents in relation to the 3rd respondent. Annexure-R/3 in the writ petition is the Certificate for Cinematograph Operator dated 4.11.2016 bearing Licence No.2 of 2016.
[6] The appellant/petitioner filed a writ petition pleading that on the relevant date, namely, 10th October, 2016, 3rd respondent did not have a valid licence because what was given under the RTI Act is dated 4.11.2016 which is well beyond the cut-off date and therefore, the 3rd respondent is ineligible.
[7] The writ petition was filed, admitted, reply-affidavit filed by the State and the private respondent, rejoinder affidavit was filed by the writ petitioner also. In the reply affidavit filed by the private respondents, it has been stated the petitioner does not have the requisite qualification or valid Certificate/licence to be considered for appointment. The State on its part, filed a reply affidavit and the relevant portion of it reads as follows:-
"6. That with reference to the para No.10 of the writ petition, the answering deponent deny the allegation and charges regarding non-possession of Cinematograph Operator Licence on or before the last date of submission of application form and even on or before Written Test and viva-voce in as much as both the Respondent No.3, Shri Elangbam Harekrishna and Respondent No.5 Shri Pashel Rephowl Sello possessed valid Cinematograph Operator Licence before DPC and viva-voce.
In case of Respondent No.3, Shri Elangbam Harekrishna, he possessed Cinematograph Operator Licence bearing No.570 issued on 16.12.2013. Since the said Licence is valid for three years only, a new licence bearing No.2/2016 has been obtained from the concerned authority which was issue don 04-11-2016, more than a month before the expiry of the licence. Both copies of the Licences are in the relevant file. It was considered proper to furnish the copy of only the valid licence in reply to the R.T.I. application filed by one Shri L.Kenneth vide No.1/412/66-DIPR dated 16th January, 2017.
True copies of the earlier Licence bearing No.570 issued on 16-12-2013 and the new Licence issued on 04-11-2016 are annexed and mark as Annexures-C/2 and C/3 respectively."
[8] On the basis of Annexure C/2 and C/3 referred to above in the reply affidavit of the respondent No.2, learned Single Judge after considering the relevant submissions, came to frame two issues:-
" (a) Whether the respondent Nos. 3 & 5 and the petitioner were holding valid Cinematograph Operator Licenses on the last date for submission of application forms?
(b) Whether the petitioner has any locus standi to question the process of selection after the same having been completed and in particular, the appointment order dated 03.12.2016 having been issued thereafter."
[9] On facts, on the basis of file which was produced before the Court, learned Single Judge held as follows:-
"10 As per the relevant recruitment rules, the essential qualifications for the post of Assistant Cinema Operator are as under:
(i) Class-VIII passed;
(ii) Experience in Cinema Operation;
(iii) Holder of Operator's Licence and
(iv) Knowledge of Manipuri Language.
For the present case, the requisite qualification of holding an operator's licence is relevant. The rival contention is that both the petitioner and the respondent Nos.3 & 5 did not have valid cinematograph operator's license on the last date for submission of application forms. According to the petitioner, both the respondent Nos. 3 & 5 did not have the valid license for the reason that the dates on which the certificates were issued, were 04-11-2016 and 13-10-2016 respectively, when the last date for submission of application forms was 10-10-2016. In order to substantiate his contention, he has heavily relied upon the condition prescribed in the Notification dated 28-09-2016 with the expression "Filled in application form along with relevant documents should reach the office of the undersigned on or before 3.00 pm of 10th October, 2016". Looking at the dates of issue bearing on the certificates, the copies of which have been filed along with the writ petition, the contention of the petitioner appears to be correct. But in the affidavit of the respondent No.2, it has been stated that the respondent No.3 possessed a licence issued on 16-12-2013 which was valid for three years and before the expiry of the same, a new licence was obtained on 04-11-2016. The copies of both the license are in the relevant file and only a copy of the licence dated 04-11-2016 was furnished in reply to the RTI application, as it was considered proper. A copy of the licence dated 16-12-2013 is filed along with the affidavit-in-opposition. It is not clear as to how and when a copy of the licence dated 04-11-2016 was filed by the respondent No.3. Since the validity and correctness of the license dated 16-12-2013 and 04-11-2016 are not the subject matter in issue herein, this court cannot go into it. But the fact remains that both the license are held by the respondent No.3 and therefore, it cannot be said that the respondent No.3 was not eligible for appointment to the post of the Assistant Cinema Operator. ............"
Emphasis supplied
[10] In para No.11 of the judgment at page No.15, the learned Single Judge perused the file and recorded the facts relating to the Certificate of the 3rd respondent as follows:-
"11.................... A file pertaining to this file was handed over to this court by the Government Advocate for perusal by this Court and on perusal thereof, it is seen that so far as the respondent No.3 is concerned, the certificates dated 16.12.2013 and 04.11.2016 issued in his favour are in the file.........."
[11] On the plea that in the case of 3rd respondent, there was a valid document licence as on the date of application and since in respect of the respondent No.5, the petitioner has no issue because he is not competing in the Scheduled Tribe category, the learned Single Judge dismissed the writ petition holding that in the case of 3rd respondent, there was valid licence on the relevant date and in so far as respondent No.5, not a competing candidate with that of the petitioner and therefore, no case has been made out and the writ petition was dismissed as devoid of merit against which the present appeal is filed.
[12] Learned counsel for the appellant pleaded that in response to the RTI application, the document furnished to the appellant writ petitioner was the licence dated 4.11.2016. However, in the reply affidavit of the State, they are referring to an earlier licence dated 16.12.2013 and therefore, the State's plea is inconsistent. Hence, the selection of 3rd respondent is bad.
[13] To support his plea, the appellant relied upon the following decisions viz, 1) Joint Action committee of Air Line Pilots' Association of India (ALPAI) & ors. vs. Director General of Civil Aviation & ors.; (2011) 5 SCC 435, para No.11 and 12 and 2) Suzuki Parasrampuria Suitings Private Ltd. vs. Official Liquidator of Mahendra Petrochemicals Ltd. (In Liquidation) & ors., 2018 (10) SCC 707 para No.10 and 12.
"10. The appellant initially took a conscious and considered stand before the Company Judge, staking a claim for being substituted as a secured creditor under the SARFAESI Act consequent to the assignment of debt to it by the IFCI. That the claim was not simply with regard to assignment of an actionable claim under Section 130 of the T.P. Act is evident from its own pleadings and the pursis filed by the IFCI before the Debt Recovery Tribunal. No material has been placed before us with regard to the orders that may have been passed by the Tribunal on such application. After the claim of the appellant of being a secured creditor was rejected by the Company Judge, and the appellant realised the unsustainability of its claim in the law, it made a complete volte face from its earlier stand and surprisingly, contrary to its own pleadings, now contended that it had never sought the status of a secured creditor under the SARFAESI Act.
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A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. The untenability of an inconsistent stand in the same case was considered in Amar Singh vs. Union of India, (2011) 7 SCC 69, observing as follows:
"50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.""
[14] On the importance of Right to Information Act, learned counsel for the relied upon the judgment and order of the Hon'ble Supreme Court dated 15th February, 2019 in Anjali Bhardwaj & ors. vs. Union of India & ors., para No.14 to show that RTI information will make the Government accountable and for an open governance. Therefore, it should not have given a wrong information.
[15] The other important contention raised by the petitioner's counsel is that possession of requisite qualification, namely, Cinematographer Licence is a pre-condition for eligibility of the candidate. Since the 3rd respondent did not satisfy the eligibility criteria on the relevant date, namely, 10th October, 2016, his application should have been rejected.
[16] Shri H.S.Paonam, learned senior counsel for the respondent No.3 referred to the decision of the learned Single Judge on the finding of facts based on records and pleaded that since the claim as against the respondent No.5 is not pursued because the appellant is not contesting for ST category post, the only issue that remains for consideration is whether the appointment of the 3rd respondent was valid in law. He therefore submitted that what was given under RTI application is based on the date relevant to the application, namely, date of application is 10.12.2016 and the reply given on 11.1.2017. On the day when the reply was given, the licence valid as on that date i.e. 4.11.2016 was relevant and therefore, the RTI reply cannot be faulted. What was relevant on the date of application made by the respondent No.3, namely, 10th October, 2016 was the earlier licence dated 16.12.2013, which was valid for three years. Since it was valid on the relevant date, namely, 10.10.2016 and the finding of the learned Single Judge is correct. There was no error on the part of the official respondents in selecting the eligible candidate, respondent No.3. The plea of invalidity of the operator licence has no legal basis and mis-statement by the appellant/petitioner.
[16] We have heard the rival contention.
[17] On the primary plea of eligibility of the third respondent to the said post, it will be useful to the referred to the document as such. The original licence was issued on 16.12.2013 and it would expired on 15.12.2016 and therefore, it was valid on the relevant date (i.e.) 10.10.2016. The learned Single Judge has gone through the file on the basis of reply affidavit given by the respondent No.2, State and perused the records to come to the conclusion that as far as the 3rd respondent is concerned, the certificate dated 16.12.2013 and 4.11.2016 are issued in favour of 3rd respondent and are in the file.
[18] The question as to whether non-supply of the 16.12.2013 certificate in response to RTI application would make the selection invalid is the moot question for consideration. To this, our answer is clear no. The licence dated 16.12.2013 had expired by the date when the application under RTI was replied, i.e., on 11.1.2017. The licence dated 16.12.2013 which was valid on the date of application had expired and therefore, what was valid is certificate dated 4.11.2016. The valid licence alone can be given. If the department had given an expired licence, it would create a further confusion in this case.
[19] For the purpose of verifying whether 3rd respondent is eligible or not, the Court has already looked into the file and found that on the relevant date, namely, 10th October, 2016, there was a licence which was valid till 15.12.2016 and there was the subsequent licence issued and valid from 4.11.2016 making it clear that the 3rd respondent was eligible on the date of application and also at the time of consideration for his case for appointment. If that be the case, no error can be alleged against the second respondent stating that they have chosen a candidate who had an invalid licence. The reasoning of the learned Single Judge is correct on the above narration of facts.
[20] This leads us to answer the question as to whether the two decisions relied upon by the petitioner's counsel, namely, Joint Action committee of Air Line Pilots' Association of India (ALPAI) & ors. vs. Director General of Civil Aviation & ors.; (2011) 5 SCC 435 has relevance to the present case. The doctrine of election by a party and that he should not take inconsistent plea is a well established principle of law. In this case, the 3rd respondent has not taken any inconsistent plea nor did the official respondents take a plea inconsistent to one another. They have already stated that on the date of application , there was a valid licence. On the date of consideration, he had another licence which was valid thereafter. Reading both licences dated 16.12.2013 and 4.11.2016 makes it clear that there was no inconsistency but only consistency. The continuation of the licence after its validity period has expired is a well understood practice. This has been mis-construed by the petitioner because of the later part of the document was furnished to him under RTI Act. The 3rd respondent was not at fault because all relevant documents have been submitted by him. The official respondents who were in the process of selection have also considered all the relevant documents and therefore, there was no question of finding fault with the selection of the 3rd respondent. The above principle does not apply to the facts of the present case.
[21] In the similar lines, the decision of the Hon'ble Supreme Court in Suzuki Parasrampuria Suitings Private Ltd. vs. Official Liquidator of Mahendra Petrochemicals Ltd. (In Liquidation) & ors., 2018 (10) SCC 707 may not apply to the facts of the present case because the 3rd respondent has not taken any inconsistent plea. These decisions are relating to appellants who have taken inconsistent plea before the lower forum and the higher forum . Therefore, this case will not apply to the facts of the present case.
[22] In the case of Rufina D'Souza and ors. vs. Municipal Corporation of Greater Mumbai and Ors., (2017) 4 SCC 81, the Hon'ble Supreme Court has stated that High Court should examine the grounds of challenge and the relief claimed. In this case, we find that the learned Single Judge has considered the prayer in the writ petition which is to set aside the selection on account of an invalid licence. The Court has given a clear finding that there was a valid licence on file. Past and present and therefore, on the basis of that, the writ petition was adjudicated and relief declined. We find no error in the finding of the learned Single Judge.
[23] In this case, the scope of the writ petition and the appeal revolves around the issue of non-supply of an earlier licence granted in favour fo the 3rd respondent in response to the Right to Information Act and that appears to be the sole basis of the entire litigation. We are afraid that the error or otherwise in non-supply of the licence dated 16.12.2013 cannot be a ground to plead that the appointment of the respondent No.3 is invalid. The authority who has to consider the claim of the 3rd respondent did have the valid licence as on 10.10.2016 and thereafter, the subsequent licence dated 4.11.2016 which was considered on the date of consideration of merits of rival candidates. Therefore, the 3rd respondent selection by the official respondents is justified and there is no error apparent on the face of the record. We are therefore find no reason to interfere with the order of the learned Single Judge. No other contention was raised. The writ appeal stands dismissed. No order as to costs.