Manipur High Court
7:14:02 vs The Manipur Public Service ... on 2 May, 2022
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Digitally
JOHN signed by
JOHN TELEN
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
TELEN KOM
Date:
2022.05.02
KOM
WP(C) No. 373 of 2019
17:14:02
+05'30' 1. Shri Nelojit Mayengbam, aged about 28 years, S/o
Mayengbam Nilamani, resident of Kwakeithel Thiyam
Leikai, P.O. Imphal, P.S. Lamphel, District, Imphal
West, Manipur-795001.
2. Shri Khomdram Ranjan Singh, aged about 39 years,
S/o Khomdram Tombi Singh, resident of Naoremthong
Khullem Leikai, P.O. Imphal, P.S. Lamphel, District,
Imphal West District, Manipur-705001.
... Petitioners
-Versus-
1. The Manipur Public Service Commission through its
Secretary, Imphal, North AOC, P.O. & P.S. Imphal,
District, Imphal West, Manipur-795001.
2. The Chairman, Manipur Public Service Commission
through its Secretary, Imphal, North AOC, P.O. & P.S.
Imphal, District, Imphal West, Manipur-795001.
3. The State of Manipur through its Chief Secretary-cum-
Secretary (DP), Govt. of Manipur, Secretariat South
Block, P.O. & P.S. Imphal, District, Imphal West,
Manipur-795001.
.... Respondents
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
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W.P.(C) No.375 of 2019
Namdithiu Moita, aged about 38 years, S/o Guinimang
Moita, a resident of Dewlahlane, P.O. Imphal West, P.S.
Heingang, Imphal East
... Petitioner
-Versus-
1. The State of Manipur represented by Chief Secretary,
Government of Manipur, Old Secretariat Building, P.O.
& P.S. Imphal, Manipur-795001.
2. The Manipur Public Service Commission through its
Secretary, North AOC, P.O. & P.S. Imphal, Manipur-
795001.
3. The Secretary, Manipur Public Service Commission
through its Secretary, North AOC, P.O. & P.S. Imphal,
Manipur-795001.
.... Respondents
W.P.(C) No.378 of 2019
1. Shri Thounaojam Ropeshtajit Singh, aged about 28 years,
S/o Th. Ibobi Singh of Utlou Mayai Leikai, P.O. Nambol,
P.S. Nambol, Manipur-795134.
2. Shri Sh. Surjit Singh, aged about 31 years,S/o Sh.
Ibohanbi Singh, resident of Singjamei, P.O. Porompat,
P.S. Porompat, Manipur-795008.
... Petitioners
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
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-Versus-
1. The Commissioner/Secretary (D.P.), Government of
Manipur, Manipur Secretariat, P.O. & P.S. Imphal, Imphal
West District, Manipur-795001.
2. The Manipur Public Service Commission (MPSC)
represented through its Secretary, MPSC, near 2nd
Battalion Manipur Rifles, North AOC, Imphal, Manipur-
795001.
.... Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioners :: Mr.Kh. Tarunkumar, Advocate in
WP(C) No. 373 of 2019;
Mr. Irom Denning, Advocate in
WP(C) No. 375 of 2019;
Mrs. G. Pushpa, Advocate in
WP(C) No. 378 of 2019.
For the Respondents :: Mr. M. Rarry, Addl. AG
Date of Hearing and
reserving Judgment & Order :: 10.03.2022
Date of Judgment & Order :: 02.05.2022
JUDGMENT AND ORDER
(CAV)
W.P.(C) No.373 of 2019 has been filed seeking writ of
certiorari to quash the entire recruitment process conducted by the
Manipur Public Service Commission in pursuance to the
advertisement No.1 of 2019, dated 8.1.2019 as the same is not
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
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sustainable in the eye of law and to direct the respondents 1 and 2
to hold a fresh recruitment for the posts mentioned in the impugned
advertisement dated 8.1.2019 after amending the Manipur Public
Service Commission (Procedure and Conduct of Business) Rules,
2011 by fully complying with the directive of this Court order dated
28.2.2017 passed in W.P.(C) Nos.803 and 817 of 2016 and 60 of
2017.
2. W.P.(C) No.375 of 2019 has been filed to quash the
impugned advertisement No.1 of 2019, dated 8.1.2019 issued in
pursuance to the Press Note dated 5.1.2019 read with Press Note
dated 28.2.2019 issued by the Secretary, Manipur Public Service
Commission.
3. W.P.(C) No.378 of 2019 has been filed to quash the
impugned advertisement No.1 of 2019 dated 8.1.2019 issued by the
Secretary, MPSC for filling up of 72 posts of MCS, MPS, MFS, SDC
and MSS without laying down the Rules and Regulations for
evaluation, tabulation and conduct of the examination.
4. Heard Mr.Kh.Tarunkumar, learned counsel for the
petitioners in W.P.(C) No.373 of 2019; Mr.Irom Denning, learned
counsel for the petitioner in W.P.(C) No.375 of 2019;
Mrs.G.Pushpa, learned counsel for the petitioners in W.P.(C)
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
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No.378 of 2019 and Mr.M.Rarry, learned Additional Advocate
General for the respondent State as well as the Manipur Public
Service Commission.
5. Since challenge to the impugned advertisement dated
8.1.2019 made in these writ petitions is one and the same, all three
writ petitions were taken up together and are disposed of by this
common order.
6. The case of the petitioners in W.P.(C) N.373 of 2019
is that they have applied for Manipur Public Service Combined
Competitive (Preliminary) Examination, 2016 for which an
examination was conducted. On 28.2.2017, this Court, in a common
order in W.P.(C) Nos.803, 817 of 2016 and 60 of 2017 directed the
Manipur Public Service Commission [MPSC] to amend the MPSC
(Procedure and Conduct of Business) Rules, 2011 before holding
of the present examination by mentioning and highlighting the
irregularities committed by the MPSC in conducting the Manipur
Public Service Combined Competitive Examination, 2016.
However, the MPSC without properly amending the said Rules,
2011, have issued the impugned advertisement dated 8.1.2019 for
recruitment of various posts of Civil Service under the Government
of Manipur in complete violation of the order of this Court.
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
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7. The case of the petitioner in W.P.(C) No375 of 2019 is
that he had applied for the Manipur Civil Services Combined
Competitive Examination, 2019 and the authority has issued e-
admit card to him pursuant to the impugned advertisement dated
8.1.2019. According to the petitioner, the impugned advertisement
has been issued in violation of the directions issued in the common
order dated 28.2.2017 passed in W.P.(C) Nos.803, 817 of 2017 and
60 of 2017.
8. Similarly, the case of the petitioners in W.P.(C) No.378
of 2019 is that they are the candidates, who had appeared in the
Manipur Civil Services Combined Competitive Examination, 2016
and are the candidates applied in the Manipur Civil Service
Combined Competitive Examination, 2019. According to the
petitioners, by the common order dated 28.2.2017 passed in
W.P.(C) No.803 of 2016, this Court directed the respondents,
especially MPSC to lay down proper rules, norms and regulations
as in the absence of which it was difficult on the part of this Court to
come to a conclusion that Rules have been violated. The second
petitioner Y.Surjit Singh approached the SPIO, MPSC for furnishing
information as to how the Examination 2019 is going to be
conducted by the MPSC and for that he had received reply to the
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
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effect that the MPSC is going to repeat the same pattern of
examination except certain amendment which are not going to cure
the defects already suffered by the candidates who had participated
in the 2016 examination. According to the petitioners, the MPSC
(Procedure and Business Conduct) Rules, 2011 has been duly
amended from time to time after the issuance of the impugned
advertisement, which itself is not acceptable and as such the
examination to be conducted by the MPSC suffers from similar
drawbacks and irregularities. According to the petitioners, the
MPSC has failed to formulate proper evaluation rules, tabulation
and the conduct of business rules of the examination 2019.
9. The respondent MPSC filed affidavit-in-opposition in
W.P.(C) No.373 of 2019 stating that they took serious note of the
directions made in the order dated 28.2.2017 passed in W.P.(C)
Nos.803, 817 of 2016 and 60 of 2017 and had taken efforts to
comply with the said order. Accordingly, certain amendments were
made in three stages so far, namely, the provisions at Rules, 21,
26-A(2), 26-A(5), 26-A(8), 26-A(14) and 26-B(xii) of the MPSC
(Procedure and Conduct of Business) Rules, 2011 comprising all
the aspects as per the direction of this Court. As far as the
codification is concerned, the same will be done under the strict
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
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supervision of the Secretary with CCTV coverage and also the
MPSC framed rules/guidelines in compliance of the order dated
28.2.2017 passed in W.P.(C) No.803 of 2016.
10. It is stated that in the organisational set up of MPSC,
there is no sanctioned post of Controller of Examinations and the
role and function of the Controller of Examinations has been
discharging by the Secretary, MPSC for administrative
convenience. In the earlier MPSC (Procedure and Conduct of
Business) Rules, 2003, it was also mentioned that the Secretary
and Head of Department shall also discharge the function of the
Controller of Examinations and the practice has been followed as
convention. It is also stated that in compliance of the order of this
Court dated 28.2.2017, the MPSC has amended the MPSC
(Procedure and Conduct of Business) Rules, 2011 from time to time
as well as initiated steps/process for appointment of Controller of
Examinations on deputation basis. There is no cause of action
further for the petitioners and the writ petition is liable to be
dismissed outright.
11. The respondent State filed affidavit-in-opposition
stating that at present a large number of vacancies has arisen for
the posts to be filled up by conducting MCSCCE, 2019 through
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
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MPSC. The MCSCCE, 2016 conducted by publishing the
advertisement on 29.12.2015 has already been quashed by the
Hon'ble Division Bench of this Court on 18.10.2019 and the present
position is that the said issue of MCSCC Examination, 2016 is sub-
judice before the Hon'ble Supreme Court. Thereafter, no MCSCC
Examination has been held while MCSCC Exam (Preliminary) 2019
has been stayed by this Court and the same is pending for more
than 3 years. It is stated that thousands of aspirants vying for
selection pursuant to the impugned advertisement dated 8.1.2019.
As it has been apparent after passing of the interim order dated
10.5.2019, vide a Government Order dated 29.8.2019 the
Controller of Examinations has been appointed and therefore it
would be in advancement of the cause of justice to permit the State
Government to take necessary steps for conduct of the MCSCC
Examination, 2019 and prayed for dismissal of the writ petitions.
12. Assailing the impugned advertisement, Mr.Kh.
Tarunkumar, learned counsel for the petitioners in W.P.(C) No.373
of 2019, submitted that the petitioners have applied for MCSCC
(Preliminary) Examination, 2019 soon after the issuance of the
impugned advertisement for recruitment of 15 posts of MCS Grade-
II, 15 posts of MPS Grade-II, 15 posts of MFS Grade-III, 15 posts
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
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of SDC and 10 posts of MSS and that the petitioners have received
an information regarding the rules which is to be followed by the
MPSC while holding the MCSCCE, 2019. He would submit that
after seeing the information obtained by Yumlembam Surjit Singh
under RTI Act, 2005, it has been found that the MPSC has not done
necessary amendments in the Manipur Public Service Commission
(Procedure and Conduct of Business) Rules, 2011 [for short, " the
Rules of 2011"] despite direction of this Court in W.P.(C) No.803 of
2016 dated 28.2.2017.
13. Drawing attention of the Court to the order passed in
W.P.(C) No.803 of 2016, the learned counsel submitted that in the
said case, this Court held that the Controller of Examinations is
responsible for the codification and that the functions of the
Controller of Examinations was discharged by the Secretary as
there was no Controller of Examinations. In the said case, it was
also observed by this Court that since codification is highly sensitive
and confidential and also rules are silent, proper guidelines needs
to be laid down. It was further held that it is desirable that proper
guidelines are laid down as regards the number of persons to be
involved in the codification and de-codification etc. as the
maintenance of confidentiality will be higher and this is an issue
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 11
which need to be worked out by the MPSC with the aid of experts
and take suitable corrective steps.
14. Highlighting the observations made in paragraph 57 of
the order dated 28.2.2017 that the evaluation and tabulation of
answer books proceeds as the case may be, shall be done as per
procedures laid down by the Commission, the learned counsel
submitted that nothing has been brought on record as to the
procedure laid down by the Commission for undertaking evaluation
and tabulation. He has also drawn the attention of this Court to the
findings in the said case that the MPSC must lay down the
procedures in writing in advance and ought not to be left to the
absolute discretion of any individual functionary as it seems to have
been done in the case which has caused so much uncertainty and
suspicion in the minds of the candidates which were all avoidable.
15. The learned counsel further submitted that despite
clear findings of this Court dated 28.2.2017 in W.P.(C) No.803 of
2016, the MPSC has proceeded to conduct the preliminary
examination, 2019 without making proper amendments in the Rules
of 2011 and that the petitioners are now aggrieved by the impugned
advertisement dated 8.1.2019 as the same is not sustainable in the
eye of law. While seeking to set aside the impugned advertisement,
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 12
the learned counsel prayed for direction on the respondents to hold
a fresh recruitment for the posts mentioned in the impugned
advertisement dated 8.1.2019 after amending the Rules of 2011 by
fully complying with the directions issued by this Court dated
28.2.2017 in W.P.(C) Nos.803, 817 of 2016 and 60 of 2017.
16. Similarly, Mr.Irom Denning, learned counsel for the
petitioner in W.P.(C) No.375 of 2019 submitted that since the rule
in connection with the codification of answer sheet, evaluation and
tabulation, role and duties of the Controller of Examinations,
manner in conducting the examination etc. are not framed by the
respondents, the examination of the 2016 was quashed in the
earlier round of litigation. He would submit that certain irregularities
were detected by the Committee constituting a retired District and
Sessions Judge and retired IAS officer, who were appointed by this
Court.
17. The learned counsel further submitted that without an
iota of doubt it can be safely concluded that the irregularities
occurred in the examination of 2016 was due to non-framing of rules
in that regard. As such, those irregularities could be avoided in the
future examination conducted by the MPSC, if the rules of the said
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
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examinations are properly framed. He would submit that in
furtherance to the direction of the learned Single Judge of this Court
in W.P.(C) No.803 of 2016, the MPSC has amended a portion of
the rules and the said rules are not a rule that can be enforced for
the simple reason that such rules are not been notified by the
authorities. Therefore, as per the provisions of Article 320 of the
Constitution of India rules ought to be passed before legislation. In
the instant case, it has not been done so and the same has not been
published also. Thus, there are no rules applicable for conducting
the MCSCCCE, 2019. As such, the faith of the candidates
appearing in the examination 2019 will end up as that of the 2016
examination.
18. Mrs.Pushpa, learned counsel for the petitioners in
W.P.(C) No.378 of 2019 submitted that in fact the petitioners were
parties to the earlier writ petitions challenging the conduct of
MCSCCE, 2016 and as per the order dated 28.2.2017, the
petitioners and other candidates had applied for furnishing copies
of answer scripts under the RTI Act, 2005. On receipt of the copies
of the evaluated answer scripts, many unsuccessful candidates
came to know that there were too many irregularities in the
evaluation of the answer scripts and as such writ petitions being
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 14
W.P.(C) No.606 and 725 of 2017 were filed. She would submit that
in the earlier writ petitions, this Court directed to formulate
appropriate rules and guidelines, evaluation rules, appointment of
a Controller of Examinations.
19. Referring the Rules of 2011, the learned counsel
argued that there is no mention about any particular rules for
evaluating the general studies paper which is common for all and
that the general studies paper involves a lot of subjects which
includes Maths, Geography, History, Polity, Science and
Technology, Indian Economy, Art and Culture and Current Affairs,
which is not possible for a particular examiner to evaluate answers
of the questions related with these different subjects. According to
learned counsel, scaling has not been adopted as per Rule 26A(vi)
which is absurd and not tenable in the eye of law as laid down by
the Hon'ble Supreme Court in a catena of judgments.
20. She further submitted that Rule 26-A(v) provides for
handing over of 80 answer booklets on a day to an Examiner. This
issue was one of the crux in the 2016 examination as it was found
that an evaluator of Education, Geography and some other subjects
were found to have been evaluated at the rate of 70 to 76 answer
scripts, which this Court held that the same seemed not normal. The
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 15
process of handing over and taking over of the answer scripts is
silent in the rule and that there is no specific rule for maintaining a
record by way of a register and there is no mention that who would
receive or dispatch the answer scripts. Arguing so, learned counsel
submitted that the MPSC may be directed to formulate appropriate
and complete evaluation rules for the upcoming examinations so as
to avoid further repetition and haunt by the ghost of the MCSCCE,
2016. In support of her arguments, she has placed the following
decisions:
(1) Sanjay Singh v. U.P. Public Service Commission,
(2007) 3 SCC 720
(2) Prashat Ramesh Chakkarwar v. UPSC, (2013) 12
SCC 489
(3) Sujasha Mukherji v. High Court of Calcutta, (2015)
11 SCC 395
(4) K.Manjusree v. State of AP, (2008) 3 SCC 512
(5) Commissioner, Karnataka Housing Board v.
C.Muddaiah, (2007) 7 SCC 689.
21. Per contra, Mr. M. Rarry, the learned Additional
Advocate General, representing the State as well as the MPSC,
submitted that by way of the impugned advertisement dated
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 16
8.1.2019, the MPSC called for applications for MCSCC
(Preliminary) Examination, 2019 for selecting candidates for the
main examination in order to make recruitment to fill up the posts of
Manipur Civil Services, Manipur Police Services, Manipur Finance
Services, Sub-Deputy Collectors and the Manipur Secretariat
Services.
22. The learned Additional Advocate General further
submitted that when challenge to the MCSCCE, 2016 was made in
W.P.(C) Nos.803, 817 of 2016 and 60 of 2017, this Court dismissed
the writ petitions holding no patent illegality to have been disclosed
which would warrant interference in exercise of power of judicial
review, subject to the observations made in the preceding
paragraphs. Drawing attention of the observations in paragraphs 56
to 62, the learned Additional Advocate General submitted that
paragraph 56 of the said order deals with Rule 26-A regarding
codification and Controller of Examinations; paragraphs 57 to 60
relate to sub-rule (xii) of Rule 26-B, the number of answer books to
be provided or sent to each examiner; paragraph 61 made
reference to the observation made by the Hon'ble Supreme Court
in the case of Mehar Singh Saini and as per paragraph 62
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 17
necessary measures need to be taken by the MPSC not to
undermine the credibility of MPSC.
23. The learned Additional Advocate General further
submitted that the MPSC took serious note of the observations
made by this Court and pursuant to it, certain amendments were
made in three stages, thus, the provisions of Rule 21, 26-A(2), 26-
A(5), 26-A(8), 26-A(14), 26-B(xii) comprising all the aspects have
been amended. He would submit that in the first amendment to the
Rules of 2011, necessary amendment regarding codification has
been made and according to the amended provision, the
codification will be done under the strict supervision of the Secretary
with CCTV coverage, which is self-explanatory. Thus, according to
the learned Additional Advocate General, proper rules/guidelines
have been made in compliance with the direction of this Court dated
28.2.2017 passed in W.P.(C) Nos.803, 817 of 2016 and 60 of 2017.
24. The learned Additional Advocate General next submitted that
as seen from the organisational set up of the Union Public Service
Commission and some State Public Service Commission, there is
no separate such post as Controller of Examinations, for instance
the Public Service Commission of Arunachal Pradesh, the
Himachal Pradesh, Goa, Gujarat etc. and in some other State
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 18
Public Service Commission like J&K and Bihar, the Additional
Secretary and Joint Secretary are discharging the function of
Controller of Examinations. Thus, there is no sanctioned
post/separate post of Controller of Examinations and the role and
function of Controller of Examinations has been discharged by the
Secretary, MPSC for administrative convenience at the relevant
point of time.
25. The learned Additional Advocate General then
submitted that in the earlier MPSC (Procedure and Conduct of
Business) Rules, 2003, it was mentioned that the Secretary, as
Head of Department, shall discharge the function of the Controller
of Examinations and the practise has been followed as convention.
In the present MPSC (Procedure and Conduct of Business) Rules,
2011, the Controller of Examinations is given as only function and
responsibility and not as a post. He would submit that due to non-
availability of eligible officers for promotion, the vacancies of
Additional Secretary and Joint Secretary of MPSC have not been
filled up at that time. Thus, the Secretary was holding the charge of
Controller of Examinations to meet the exigencies. In fact, in
W.P.(C) No.803 of 2016 etc. batch, this Court has not specifically
directed that the Secretary cannot act as Controller of Examinations
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 19
and as per the conventions practised in the aforesaid State Public
Service Commission neither it can be said as irregular nor illegal.
26. It is also the submission of the learned Additional
Advocate General that nowhere in the MPSC (Procedure and
Conduct of Business) Rules, 2011, it is provided that the Secretary
of MPSC cannot be assigned the duty of Controller of
Examinations. The exercise for appointment of the Additional
Secretary and the Joint Secretary, MPSC was done in order to
utilize as Controller of Examinations and in absence of eligible
officers to hold the functions of Controller of Examinations, the
Secretary, MPSC taking the function of the Controller of
Examinations due to exigencies cannot be said to be arbitrary or
illegal. That apart, pursuant to the letters addressed, the Joint
Director (DP), Government of Manipur sent a letter dated 15.5.2019
thereby requested to propose for creation of one post of Controller
of Examinations, the MPSC to be filled on deputation by MCS or by
encadrement to MCS. The MPSC has taken action for framing of
Recruitment Rules and has also addressed a letter for creation of
one post of Controller of Examinations to the Joint Secretary (DP).
27. The learned Additional Advocate General then
submitted that pursuant to the directions given by this Court in
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 20
W.P.(C) No.803 of 2016, the MPSC has amended the Rules of 2011
from time to time and also initiated steps for appointment of
Controller of Examinations on deputation basis. Therefore, there is
no cause of action for the petitioners for maintaining these writ
petitions and thus prayed for dismissal of the same.
28. This Court considered the rival submissions and also
perused the materials available on record.
29. The challenge to the impugned advertisement dated
8.1.2019 has been made mainly on the ground of non-compliance
of the observations made by the learned Single Judge of this Court
in W.P.(C) Nos.803, 817 of 2016 and 60 of 2017 dated 28.2.2017.
30. W.P.(C) Nos.803 and 817 of 2016 has been filed by
111 petitioners/unsuccessful candidates who had appeared in the
main examination of MCSCCE, 2016 conducted by the MPSC and
they had also sought for instituting a high level probe to investigate
into the manner of conduct of examination and for a fresh checking,
scrutiny under a separate body and independent body contending
that the manner of evaluation of papers, tabulation of marks and the
procedure of scrutiny which were done in a hasty manner.
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 21
31. In W.P.(C) Nos.803 and 817 of 2016, this Court
appointed a retired Judge of the Gauhati High Court as Court
Commissioner to be assisted by two other members to inquire into
the contentions raised in the writ petitions and to submit a report of
findings as to whether the said MCSCCE, 2016 merits quashing.
Accordingly, the Court Commissioner inquired the matter and filed
a report dated 13.1.2017 to the effect that there is no proof to show
that evaluation of answer scripts was not properly done nor any
irregularity was found in the conduct of the examination to warrant
quashing. The said report was challenged in W.P.(C) No.60 of
2017.
32. By a common order dated 28.2.2017, the learned
Single Judge of this Court dismissed the writ petitions. While
dismissing the writ petitions, the learned Single Judge observed
that insofar as W.P.(C) No.60 of 2017 is concerned, the report of
the Court Commissioner was based on a limited inquiry into the
conduct of the examination by the MPSC and for the satisfaction of
the Court as to the existence of any patent and clearly observable
illegality or irregularity without directing any exhaustive and
elaborate inquiry into the functioning of the MPSC and as such, the
question of examining the correctness of the observations made in
the report does not arise.
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 22
33. Insofar as W.P.(C) Nos.803 and 817 of 2016 are
concerned, the learned Single Judge observed that there is no
conclusive finding of fact by this Court on various allegations and
issues raised in these petitions. The operative portion of the order
reads thus:
"Accordingly, these writ petitions, W.P.(C) No.
803 of 2016, W.P.(C) No. 817 of 2016 and
W.P.(C) No. 60 of 2017 are dismissed as no
patent illegality have been disclosed which would
warrant interference by this Court in exercise of
the power of judicial review, subject to the
observations made in the preceding paragraphs.
Accordingly, all such related restraint orders
passed by this Court in these proceedings on the
final results of the Manipur Civil Combined
Competitive Examination, 2016 shall stand lifted.
Thus, while dismissing, this Court would direct
the Manipur Public Service to do the needful in
terms of the observations and directions made,
more particularly in the preceding paragraphs no.
55 to 62 as regards codification, evaluation and
other matters by laying down the
guidelines/instruction so that such allegations
and irregularities which form the cause of actions
for filing these writ petitions are avoided in future
and to ensure credibility of the examination
system conducted by the Manipur Public Service
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P a g e | 23
Commission, which exercise has to be carried
out by the MPSC before holding the next Manipur
Civil Services Combined Competitive
Examination and by making amendments in the
Manipur Public Service Commission (Procedure
and Conduct of Business) Rules, 2011, wherever
necessary."
34. Challenging the order of the learned Single Judge,
W.A.No.19 of 2017 and W.A.No.29 of 2017 came to be filed by the
parties. By the judgment dated 18.10.2019, the Hon'ble Division
Bench of this Court allowed the appeals and set aside the order
dated 28.2.2017, thereby quashed the main examination, 2016 and
terminated the services of the successful candidates in the
MCSCCE, 2016. Aggrieved by the judgment dated 18.10.2019, the
successful terminated candidates have filed Special Leave Petition
before the Hon'ble Supreme Court and the same was dismissed on
22.11.2019.
35. After the dismissal of the SLP, on discovery of new
material evidence and documents which were not known at the time
of passing the judgment dated 18.10.2019, five review petitions
were filed by the respondent State and the successful terminated
candidates have also filed five review petitions. By the order dated
17.12.2020, all the review petitions were dismissed by the Hon'ble
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 24
Division Bench. Thereafter, assailing the judgment dated
18.10.2019 and the review petitions order dated 17.12.2020, the
respondent State filed SLP.No.5680 of 2021. The successful
terminated candidates have also filed SLP. Diary No.7244 of 2021
and SLP.Nos.5920-5924 of 2020, which were tagged with
SLP.No.5680 of 2021. According to the respondent State, the
matter and the issue related to MCSCCE, 2016 was considered by
the Hon'ble Supreme Court by directing the MPSC to conduct the
main examination of MCSCC (Main) Examination, 2016 afresh.
36. According to the respondent State, large number of
vacancies has arisen for the aforesaid posts to be filled up by
conducting MCSCCE through MPSC and after the setting aside of
the MCSCCE, 2016, no MCSCCE has been held and thus large
number of important posts have remained vacant and unmanned,
resulting in extreme difficulties in running the administration of the
State in a smooth manner. Therefore, the impugned notification has
been issued for filling up of the posts.
37. Precisely, the challenge to the impugned
advertisement was made on the following grounds:
(1) The Secretary of MPSC is functioning as Controller
of Examinations as no Controller of Examinations
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 25
has been appointed. Such action of the MPSC is
highly illegal and arbitrary and the task of codification
is to be done by the Controller of Examinations only.
(2) Rules 26-B(vii) of the Rules of 2011 clearly
mentioned that guidelines for Centre Supervisors and
the invigilators shall be prepared and set by the
Controller of Examinations with prior approval of the
Secretary. In the case on hand, no Controller of
Examinations has been appointed and the Secretary
will seek approval from himself and he will give
approval which is a highly unfair.
(3) As soon as examination with regard to a paper is over
and the answer book has been received, the
Controller of Examinations shall submit a report to the
MPSC through the Secretary indicating the number
of candidate who have appeared in examination. In
the instant case, the Secretary himself will prepare
the report and he will submit the report to himself.
(4) As no Controller of Examinations has been appointed
by the MPSC, the Secretary has acted as Controller
and he will perform that exercise mentioned in Rule
26-B(xi) and as such he will know which fake roll
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 26
number has been allotted to which candidate though
he is not entitled to know the said task.
(5) Advertisement for the examination was issued on
8.1.2019 whereas Rule 26-A(v) was amended on
16.3.2019 which is not in conformity with the settled
position of law.
38. The learned counsel for the petitioners vehemently
argued that while dismissing W.P.(C) Nos.803, 817 of 2016 and 60
of 2017, the learned Single Judge of this Court made clear findings
regarding the non-appointment of Controller of Examinations by the
MPSC and that the Controller of Examinations is responsible for the
codification, in which neither the Chairman nor the Secretary to be
involved. Their submission is that notwithstanding anything
contained in the Rules of 2011, the evaluation and tabulation of
answer books proceeds as the case may, shall be done as per the
procedures laid down by the MPSC. However, in the case on hand,
nothing has been brought on record as to the procedure laid down
by the MPSC for undertaking the evaluation and tabulation.
39. It is also the submission of the learned counsel for the
petitioners that the MPSC must lay down procedures in writing in
advance and not to be left to the discretion of any individual
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 27
functionary as done in the instant case, which has caused
uncertainty and suspicion in the minds of the candidates which were
all avoidable. In support of the aforesaid submissions, the learned
counsel for the petitioners drew attention of this Court to the
paragraphs 56 to 62. For proper appreciation, paragraphs 56 to 62
are extracted hereunder:
"[56] As can be seen from above, though various issues have been
raised in these writ petitions which have been accordingly dealt
with, the substantial portion of the allegations relate to the
procedures followed in conducting the examination. As to the
procedures to be followed for conducting examination, the same
have been provided under Rule 26-A of the Manipur Public Service
Commission (Procedure and Conduct of Business) Rules, 2011 as
amended from time to time. Rule 26-B deals with examination
programme. As regards codification, it has been provided under
Sub-rule (9) under Rule 26-A that the codification shall be done in
the presence of the Controller of Examination who shall be fully
responsible for its safe custody and secrecy. It also states that
codification and code number will be kept in the safe custody of the
Controller of Examination. It is also mentioned that the marks
obtained by each candidate shall not be made known to either the
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 28
Chairman or to the Members before the Viva Voce in order to
maintain integrity and justice in conducting the Competitive
Examinations. It has been also provided that the Strong Room shall
be under the dual control of the Chairman and Secretary. From the
above it is clear that it is the Controller of Examination who is
responsible for the codification in which neither the Chairman nor
the Secretary are involved. However, it seems the function of the
Controller of Examination was discharged by the Secretary as there
was no Controller of Examination. As to how the codification has to
be taken up and the numbers of persons to be involved in the
process, the Rules are silent. Rules, however, provide that
codification is a very confidential work where even the Chairman
and Members of the Commission are not allowed to know the
secrecy of the process of codification. As already discussed above,
as to what should be the desirable number of persons who are
involved in the codification and how it is to be carried out have not
been specifically mentioned in the rules. As to who is the authority
to appoint such persons who will be involved in the codification is
also silent in the rules. This Court is of the view that since
codification is a highly sensitive and confidential matter and
regarding some of the said process, rules are silent, proper
guidelines need to be laid down. Nothing has been mentioned in
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 29
the affidavit-in-opposition of the MPSC nor indicated in the record
as to whether there are any detail guidelines for it. Therefore, it is
desirable that proper guidelines are laid down as regards the
number of persons to be involved in the codification process and
the manner of carrying out the process of codification,
decodification etc. as the maintenance of confidentiality is indirectly
proportionate to the number of persons engaged. In other words, if
more persons are involved, the possibility of compromising
confidentiality will be higher. This is an issue which needs to be
worked out by the MPSC with the aid of the experts and take
suitable corrective steps.
[57] Sub-rule (xii) of Rule 26-B of the aforesaid rules provides
that the number of answer-books to be provided or sent to each
examiner shall be fixed by the Controller of Examination with prior
approval of the examination Committee. It is not disclosed either in
the affidavit-inopposition nor in the Report as to when the Controller
of Examination took such decision about the number of answer-
books to be provided to each examiner which are to be examined
on an single day. Since serious doubts have arisen because of
allowing more than 75 answer scripts in a day, the Controller of
Examination can fix the optimum number of answer scripts that can
be examined by each examiner on a single day for optimal result
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 30
and proper evaluation as allowing more than 75 answer sheets to
be examined cannot be certainly said to be a desirable and ideal
situation, though it may be possible to be accomplished by certain
evaluators. It may be also mentioned that under Sub-rule (xviii) of
Rule 26-B it is provided that notwithstanding anything contained in
these Rules, the evaluation & tabulation of answer books or sheets
as the case may be, shall be done as per procedures laid down by
the Commission. However, nothing has been brought on record as
to the procedure laid down by the Commission for undertaking
evaluation and tabulation.
[58] The observation made by Dr. P. Milan Khangamcha on
the basis of the statement made by the external examiner that he
had undertaken the evaluation from around 8:30 am upto 9:30 pm
daily with lunch breaks of 1/1:30 hours in between for 7 days
continuously cannot certainly be said to be an ideal and desirable
situation. Such prolonged daily and continuous evaluation was
bound to take a toll on the body and mind of the examiner,
howsoever, experienced an examiner might be. Therefore, the
concern expressed by the petitioners that there could not have been
proper evaluation cannot be said to be illogical or a fantastic one
and in the realm of imagination. It is indeed a matter of concern for
which corrective steps need to be taken by the MPSC. The
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 31
observation made by Shri N. Brajakanta Singh, Manipur Judicial
Academy who had assisted the Commissioner to the effect that in
his opinion the outsider evaluator, even though he had a good
enough of extra qualifications, did not evaluate the answer scripts
with utmost diligence and thus indicated to the lack of satisfaction
about the proper evaluation, is certainly a jarring note to the
observation of the Commissioner which must be properly
addressed to by the MPSC.
[59] The reference to the number of answer scripts being
examined by the evaluators in respect of Council of Higher
Secondary Education, National Institute of Open Schooling etc. by
the petitioners has some significance. The fact that these
institutions have placed a limit on the answer scripts to be examined
by the evaluators is certainly to ensure that the answer scripts are
evaluated properly by giving adequate time to the evaluators to
devote optimum time to each answer script. Thus, these institutions
have worked out certain optimum number of answer scripts to be
evaluated which they consider the most conducive for scrutiny
which would give the best result under certain specific conditions
and made such stipulation a part of the examination rules.
In the present case, it is clearly evident that there is no such
examination rule which stipulates the maximum number of answer
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 32
scripts that can be evaluated by the evaluators. It has been left to
the expertise and experience of the evaluator concerned. This,
however, cannot be said to be an ideal and desirable situation, more
particularly in a competitive public examination like the present one
which this Court is examining. In such a competitive examination,
what is of utmost importance is that the Commission, which is
conducting this competitive examination, must be seen to be
functioning in a fair, transparent manner and by following the rules
uniformly for all the candidates as only the most meritorious
candidates are to be selected.
In the present case, since the MPSC has not framed any
rules about the number of answer scripts an evaluator can
scrutinise in a day, it cannot be said that any rule has been violated
which would call for interference. Thus, in absence of any rules, it
will be difficult to hold that evaluating about 76 answer scripts in a
day is illegal per se. Yet, the onus of the Commission that it has
acted in a fair and transparent manner to be discharged is very high,
simply for ensuring credibility of its functioning. Since this is not an
ideal situation as is also revealed from the Report of the
Commission, such a situation must be avoided in future. This Court
has also noted that the MPSC has not offered any explanation as
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P a g e | 33
to what prompted it to proceed at such breakneck speed to
complete the evaluation within such a short time. Rules also do not
provide that the result of the written examination must be declared
within specified days. They have neither offered, nor the Report
also mentions any such reason which compelled the MPSC to insist
on the examiners to evaluate in such a short period of time. The fact
that the examiner in Essay had started evaluation around 8:30 am
which continued upto 9:00 to 9:30 pm daily with lunch breaks of 1
to 1:30 hrs break in between for 7 days cannot be at all said to be
an ideal mode of evaluation, which must be avoided in future. The
MPSC must lay down guidelines and frame rules in this regard to
avoid such a scenario in future which has exposed the examination
to undue delay and uncertainty.
[60] This Court is of the view that since it is a competitive
public examination where the Commission is expected to function
in the fair and transparent manner, all endeavours should be made
to avoid any situation which would lead to creating any doubt on the
functioning of the Commission. Though in the present case no
material irregularity had been noticed by the Court appointed
Commission, in spite of large number of answer scripts being
examined, the room of doubt will always remain as to the quality of
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 34
evaluation. Therefore, it will be always desirable that to obviate any
doubt in future which has caused so much of delay in the finalization
of the recruitment process, the Commission must lay down the
norm for fixing the number of answer scripts to be examined by the
evaluators. The Commission may do so in consultation with experts
in this field so that neither the examiners are put to undue stress for
completing the scrutiny in such short span of time and also to dispel
any doubt of improper evaluation.
Therefore, this Court is of the view that the Commission must
lay down the procedures in writing in advance and ought not be left
to the absolute discretion of any individual functionary as it seems
to have been done in the present case which has caused so much
uncertainty and suspicion in the mind of the candidates which were
all avoidable. Laying down of detail procedure by the Commission
as regards evaluation and tabulation would prevent any scope of
arbitrariness or any room for suspicion.
The functioning of such an important body like the Manipur
Public Service Commission can not be left to the absolute discretion
of certain functionaries only.
There must be properly laid down guidelines/instructions to
govern these crucial areas of the examination system.
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P a g e | 35
[61] It may be noted that the importance of credible
functioning of public bodies like the public service commission has
been commented in many a decisions of the Hon'ble Supreme
Court. In Mehar Singh Saini, In re, (2010) 13 the Hon'ble Supreme
Court observed that,
"6. Higher the public office, greater is the responsibility. The
adverse impact of lack of probity in discharge of functions of the
Commission can result in defects not only in the process of
selection but also in the appointments to the public offices which, in
turn, will affect effectiveness of administration of the State. Most of
the democratic countries in the world have set up Public Service
Commissions to make the matter of appointments free from
nepotism and political patronage. For instance the Conseil d'Etat in
France, which is composed of the cream of the French Civil Service,
has acquired considerable veneration for its capacity to police
intelligently the complex administration of the modern State. Justice
J.C. Shah in his report on the excesses of the Emergency, struck
by the "unhealthy factors governing the relationship between
Ministers and civil servants", recommended the adoption of droit
administratif of the French model by the Government. He observed
that the commitment of a public functionary should be to the duties
of his office, their due performance with an emphasis on their ethical
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 36
content and not to the ideologies, political or otherwise of the
politicians, who administer the affairs of the State.
7. Great powers are vested in the Commission and therefore, it
must ensure that there is no abuse of such powers. The principles
of public accountability and transparency in the functioning of an
institution are essential for its proper governance. The necessity of
sustenance of public confidence in the functioning of the
Commission may be compared to the functions of judiciary in
administration of justice which was spelt out by Lord Denning in
Metropolitan Properties Co. (FGC) Ltd. v. Lannon2 in the following
words:
(QB p. 599 F)
"... Justice must be rooted in confidence: and confidence is
destroyed when right-minded people go away thinking: 'The judge
was biased'."
8. The conduct of the Chairman and members of the Commission,
in discharge of their duties, has to be above board and beyond
censure. The credibility of the institution of the Public Service
Commission is founded upon faith of the common man on its proper
functioning. Constant allegations of corruption and promotion of
family interests at the cost of national interest resulting in invocation
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 37
of constitutional mechanism for the removal of Chairman/members
of the Commission erode public confidence in the Commission.
Prof. Brown and Prof. Garner's observation in their treatise French
Administrative Law, 3rd Edn. (1983) in this regard can be usefully
referred to. They said: "The standard of behaviour of an
administration depends in the last resort upon the quality and
traditions of the public officials who compose it rather than upon
such sanctions as may be exercised through a system of judicial
control."
Of course, the aforesaid observations were made in the
context of allegations of misconduct made against the Chairperson
and members of the Haryana Public Service Commission. In the
present case, though there is no such allegation against any
member of the Commission, the aforesaid observations are also
apposite in the context of the functioning of the Commission which
must be above board and suspicion, since the most meritorious
candidates have to be selected to man the prestigious state public
service and there must not be any lack of public confidence on the
functioning of the Commission nor on the persons so selected by
the Commission.
[62] It is too fundamental not to be noticed that there are
certain public institutions like the Manipur Public Service
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 38
Commission whose existence and credibility depends to a large
extent on the confidence reposed on these by the public at large.
Such public institutions cannot remain satisfied on the mere fact
that certain allegations of irregularities leveled against them have
not been proved. The fact that serious allegations have been made
in the functioning of such institutions, even if not proved, certainly
puts a serious dent on the prestige and credibility of such
institutions. The allegations raised by the petitioners in these batch
of petitions cannot be said to be mere figments of imaginations and
illusory. These are allegations which have the potential of seriously
damaging the image of the Manipur Public Service Commission.
Therefore, it is important that those who are involved with the
functioning of the Manipur Public Service Commission take all the
necessary measures not to allow the credibility of such institutions
to be undermined by such complaints. After all, the credibility of
such public institutions in a democratic society like ours depends to
a large extent on the positive public perception of their functioning.
Any negative public perception of the functioning would tend to
lower the prestige and credibility of such institutions."
Thus, according to the learned counsel for the petitioners, despite
the aforesaid clear cut findings, the MPSC has proceeded to
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 39
conduct the preliminary examination of MCSCCE, 2019 without
making proper amendments in the Rules of 2011.
40. It is also the submission of the learned counsel for the
petitioners that even after setting aside the order of the learned
Single Judge dated 28.2.2017 in W.P.(C) Nos.803, 817 of 2016 and
60 of 2017, the Hon'ble Division Bench, in its judgment dated
18.10.2019, was pleased to observe the lapses and irregularities
committed by the MPSC while conducting the MCSCCE, 2016. In
the judgment dated 18.10.2019, the Hon'ble Division Bench
observed that non-appointment of the Controller of Examinations
has defeated the very purpose of the examination to be conducted
by the MPSC.
41. According to the learned counsel for the petitioners,
the Hon'ble Division Bench further held that any exercise of power
by the governmental authorities, including the MPSC, without
following the procedure prescribed in law is bad. The learned
counsel added that since the procedure as regards the evaluation
and tabulation of answer sheets has not been laid down by the
MPSC and many irregularities have been committed by it and one
of which being that there is no record of handing over and taking
over of answer sheets.
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 40
42. Refuting the submissions of learned counsel for the
petitioners, the learned Additional Advocate General submitted that
since the examination of MCSCCE, 2016 was quashed and
consequently, the services of the successful selected candidates
were terminated, the order dated 28.2.2017 can no longer hold
water nor such plea can be entertained in law. He would submit that
while passing the judgment dated 18.10.2019, the Hon'ble Division
Bench was pleased to allow the appeals and consequently, the
order dated 28.2.2017 of the learned Single Judge was fully set
aside. Thus, the order dated 28.2.2017 being quashed and set
aside, the obiter dicta and ratio decidendi of the said judgment is no
longer operative, as the judgment has been declared to be null and
void ab-initio without any value in law. Hence, the writ petition of the
petitioners solely relying upon and based on the order of the learned
Single Judge dated 28.2.2017 can no longer be sustained.
43. This Court finds some force in the arguments of
learned Additional Advocate General that once the order of the
learned Single Judge dated 28.2.2017 is totally quashed by the
Hon'ble Division Bench by the judgment dated 18.10.2019, the very
basis or foundation for filing the present writ petitions based on the
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 41
observations made in the order dated 28.2.2017 can no longer
stand and it is bound to fall.
44. At this juncture, it is to be pointed out that aggrieved
by the judgment dated 18.10.2019, the respondent State as well as
the selected candidates have preferred review applications and the
same were dismissed by the Hon'ble Division Bench. Assailing the
order passed in the review petitions as well as the judgment in the
writ appeals, SLPs were preferred before the Hon'ble Supreme
Court and the Hon'ble Supreme Court finally passed an order in the
SLP by the respondent State on 11.02.2022 directing the MPSC to
conduct MCSCC (Main) Examination, 2016 within four months.
While that being the position now, this Court is obliged to follow the
directions issued by the Hon'ble Supreme Court dated 11.02.2022.
45. It appears that pending present writ petitions, the
petitioners sought interim order and while the writ petitions were
taken up for hearing on 10.5.2019, this Court passed an interim
order suspending the preliminary examination of MCSCCE, 2019.
Some of the paragraphs, including the operative portion of the order
dated 10.5.2019, are relevant and the same are quoted hereunder:
"In that view of the matter, without expressing
much opinion on the merit of the case, this Court
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P a g e | 42
is of the considered opinion that the petitioners
have made out a prima facie case in their favour.
The balance of convenience is also in favour of the
petitioners.
Accordingly, the Preliminary Examination of the
Manipur Civil Service Combined Competitive
(Preliminary) Examination, 2019 scheduled to be
held on 12th May, 2019 shall remain suspended
till the next returnable date.
This Court is also conscious of the fact that there
are thousands of aspirants vying for selection
pursuant to the advertisement dated 8.1.2019
particularly taking into consideration that this is
one of the most prestigious examination
conducted by the MPSC.
In that view of the matter, this Court does not want
to keep the matter lingering for a long time.
Accordingly, the respondents are directed to file
affidavit as well as take appropriate instructions on
or before 15th of May, 2019. Thereafter, if any
rejoinder affidavit is to be filed by the petitioners,
they may do so on or before the 20th of May, 2019.
List the matters again on 20th of May, 2019, on
which date, an endeavour shall be made to
dispose of the writ petitions."
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 43
46. The respondent State has filed vacate stay petitions
contending that subsequent to the order dated 28.2.2017, the
MPSC has taken steps for framing of Recruitment Rules and
accordingly, the MPSC submitted proposal for creation of one post
of Controller of Examinations to the Joint Secretary (DP) and vide
order dated 29.8.2019 itself one Dr.Mayengbam Veto Singh, MCS
has been posted as Controller of Examinations and also suitably
amended the Rules of 2011.
47. The appointment by way of transfer and posting of
Dr.Mayengbam Veto Singh as Controller of Examinations has been
objected by the petitioners stating that the post of Controller of
Examinations is a very highly responsible post for the conduct of
the examination and for such post, the qualification and
experiences relevant for that purpose.
48. As could be seen from the records, after passing of the
interim order dated 10.5.2019, on 29.8.2019 the State Government
appointed Dr. Mayengbam Veto Singh as Controller of
Examinations, MPSC and he has also taken charge on 4.9.2019.
Subsequently, based on the order dated 11.3.2020, Kh. Lalamani
Singh, MCS has been holding the charge of Controller of
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 44
Examinations, MPSC. The said fact has not been seriously disputed
by the petitioners.
49. The petitioners have also filed miscellaneous petitions
to direct the MPSC to conclude MCSCCE 2016 main examination
before it proceeds with the MCSCCE 2019 examination by stating
that the MPSC is under a duty to conduct MCSCCE 2016 from the
stage of main examination in terms of the judgment dated
18.10.2019 passed in W.A.No.19 of 2017.
50. As stated supra, the selected terminated candidates
have filed SLP Diary No.39519 of 2019 against the judgment dated
18.10.2019 before the Hon'ble Supreme Court and by the order
dated 22.11.2019, the Hon'ble Supreme Court passed the following
order:
"Permission to file Special Leave Petition is granted.
Based on the report of the Commission the impugned
order is passed which cannot be said to be erroneous.
We find from the report of the Commission that
sufficient material is gathered through investigation in
transparent manner. Illegality committed go to the root
of the matter which vitiates the entire process of the
selection. Hence, the Special Leave Petitions are
dismissed.
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 45
The selected candidates shall be permitted to appear
in the examination afresh. The objection relating to the
overage should not be raised. We make it clear that
we have not commented anything with regard to CBI
investigation. We hope that the Manipur Public
Service Commission will hold the main examination
afresh as early as possible.
Pending application(s), if any, stands disposed of
accordingly."
51. There is no dispute that as against judgment dated
18.10.2019, the successful terminated candidates have preferred
SLPs and the same were dismissed by the Hon'ble Supreme Court.
Thereafter, on discovery of new material evidence which were not
known at the time of passing the judgment dated 18.10.2019, the
respondent State filed five review petitions and similarly, the
successful terminated candidates have filed five review petitions.
By the common order dated 17.12.2020, the aforesaid ten review
petitions were dismissed by the Hon'ble Division Bench. Aggrieved
by the order dated 17.12.2020, the respondent State filed SLP(C)
Diary No.5680 of 2021 with delay petition. Similarly, the successful
terminated candidates have filed SLP Diary No.7244 of 2021 and
SLP Nos.5920-5924 of 2020, which are clubbed with the
SLP.No.5680 of 2021 filed by the respondent State. When the said
W.P.(C) No. 373 of 2019 with WP(C) No. 375 of 2019 and WP(C) No. 378 of 2019
P a g e | 46
SLPs were taken up for hearing on 11.2.2022, the Hon'ble Supreme
Court passed the following order:
"Delay condoned.
We have heard learned counsel for the parties.
In the peculiar facts of the present case, we deem it
appropriate to dispose of these petitions by directing
the parties to abide by the following arrangements:
1.The Manipur Public Service Commission will
conduct the main examination of Manipur Civil
Services Combined Competitive (Main) Examination,
2016 afresh not later than 4 (Four) months from
today.
2.Only those candidates (successful/unsuccessful)
who had appeared in the main examination
conducted in September, 2016 will be eligible to
appear in the proposed examination.
3.In the event, the candidates who were already
appointed on the basis of results of the main
examination conducted in September, 2016, if
successful in the re-conducted main examination in
terms of this order, they would be given continuity of
service and consequential benefits upon being
appointed against the concerned posts.
We make it clear that for the nature of order that we
have passed, we have not dilated on the grievances
made in the review petition or for that matter the
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P a g e | 47
present special leave petitions by the concerned
petitioners nor be understood have affirmed the
opinion of the High Court on those aspects. In other
words, all questions raised in the present set of
special leave petitions are left open.
The special leave petitions are disposed, in the
above terms.
Pending applications, if any, stand disposed of."
52. The challenge to MCSCCE 2016 is relates to the main
examination and the impugned advertisement dated 8.1.2019
relates to the preliminary examination of MCSCCE 2019. There is
no dispute that selection in regard to the main examination of
MCSCCE 2016 has been set aside and the selected candidates
were also terminated and against the order of termination they have
preferred SLP before the Hon'ble Supreme Court. Furthermore, by
way of an interim order dated 10.5.2019, the impugned
advertisement dated 8.1.2019 was stayed and the stay till
continues.
53. When the SLPs filed by the respondent State and the
successful terminated candidates were taken up for hearing on
11.2.2022, the Hon'ble Supreme Court passed an order directing
the respondents to conduct the main examination of MCSCCE 2016
afresh not later than four months from the date of passing of the
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P a g e | 48
order. While directing so, the Hon'ble Supreme Court observed that
only those candidates (successful/unsuccessful) who had
appeared in the main examination conducted in September, 2016
will be eligible to appear in the proposed examination and in the
event, the candidates who were already appointed on the basis of
the results of the main examination conducted in September, 2016,
if successful in the reconducted main examination in terms of this
order, they would be given continuity of service and consequential
benefits upon being appointed against the concerned posts. When
the Hon'ble Supreme Court issued such direction, going contrary
the said direction is inappropriate. The judicial discipline requires
the High Court to follow the judgment of the Hon'ble Supreme Court
dated 11.2.2022.
54. In the light of the judgment of the Hon'ble Supreme
Court dated 11.2.2022, which was passed pending the present writ
petitions and coming to the impugned advertisement dated
8.1.2019 calling for applications for MCSCC (Preliminary)
Examination, 2019 under the Manipur Public Service Combined
Competitive Examination Rules, 2018 for selecting candidates for
the main examination for recruitment to the posts in question, the
argument of the learned counsel for the petitioners that the
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Secretary is functioning as Controller of Examinations and no
Controller of Examinations has been appointed, cannot be
accepted.
55. At this juncture, the learned counsel for the petitioners
argued that since the MPSC had issued the impugned
advertisement, they are prevented from changing or amending the
relevant Rules for conducting the said examination. In support, the
learned counsel relied upon the decision of the Hon'ble Supreme
Court in the case of Hemani Malhotra v. High Court of Delhi,
(2008) 7 SCC 11, wherein the Hon'ble Supreme Court held:
"15. There is no manner of doubt that the authority
making rules regulating the selection can
prescribe by rules the minimum marks both for
written examination and viva voce, but if minimum
marks are not prescribed for viva voce before the
commencement of selection process, the authority
concerned, cannot either during the selection
process or after the selection process add an
additional requirement/qualification that the
candidate should also secure minimum marks in
the interview. Therefore, this Court is of the
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P a g e | 50
opinion that prescription of minimum marks by the
respondent at viva voce test was illegal."
56. The learned counsel for the petitioners also contended
that the learned Single Judge in its order dated 28.2.2017 has
pointed out the irregularities and illegalities committed by the MPSC
due to the non-appointment of Controller of Examinations and also
not laying down specific rules and procedures for evaluation,
tabulation and codification etc. Though the said order was quashed
and set aside by the Division Bench in its judgment dated
18.10.2019, still the Hon'ble Division Bench pointed out various
irregularities committed by the MPSC during the competitive
examination of 2016.
57. By placing reliance upon the decision of the Hon'ble
Supreme Court in the case of State of Orissa v. Mamata Mohaty,
(2011) 3 SCC 436, the learned counsel for the petitioners submitted
that the subsequent action/development cannot validate an action
which was not lawful at its inception for the reason that the illegality
strikes at the root of the order. In paragraph 37 of the said judgment,
the Hon'ble Supreme Court held as under:
"37. It is a settled legal proposition that if an order is bad in its
inception, it does not get sanctified at a later stage. A subsequent
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action/development cannot validate an action which was not lawful
at its inception, for the reason that the illegality strikes at the root of
the order. It would be beyond the competence of any authority to
validate such an order. It would be ironic to permit a person to rely
upon a law, in violation of which he has obtained the benefits. If an
order at the initial stage is bad in law, then all further proceedings
consequent thereto will be non est and have to be necessarily set
aside. A right in law exists only and only when it has a lawful origin.
(Vide Upen Chandra Gogoi v. State of Assam [(1998) 3 SCC 381 :
1998 SCC (L&S) 872 : AIR 1998 SC 1289] , Mangal Prasad Tamoli
v. Narvadeshwar Mishra [(2005) 3 SCC 422 : AIR 2005 SC 1964]
and Ritesh Tewari v. State of U.P. [(2010) 10 SCC 677 : (2010) 4
SCC (Civ) 315 : AIR 2010 SC 3823])"
58. It is the say of the respondent State as well as the
MPSC that the Joint Director (DP), Government of Manipur has sent
a letter dated 15.5.2019 thereby requested to propose for creation
of one post of Controller of Examinations, MPSC to be filled on
deputation by MCS or by encadrement to MCS. Accordingly, the
MPSC took up necessary action for framing of Recruitment Rules
and thereafter, vide letter dated 16.5.2019, the MPSC submitted
proposal for creation of one post of Controller of Examination to the
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Joint Director (DP) along with Form 8 and 9 which are the
Recruitment Rules. Though the petitioners contended that whether
the said Recruitment Rules has been finalized or not, the said
submission is not supported by any materials. On the other hand,
now the fact reveals that the respondent State appointed the
Controller of Examinations.
59. As could be seen from the records and submissions of
the learned Additional Advocate General now the Rules of 2011 has
been suitably amended and the amended Rules will take care of the
competitive examination in question. The learned Additional
Advocate General has placed on record the amended rule
regarding procedure to be followed for conducting examination,
evaluation and interview as also the evaluation of answer scripts.
60. On a reading of the amended provisions, specifically,
Rule 26(A) of the Rules of 2011, it is clear that the said provision
deals with the procedure to be followed for conducting the
examination, evaluation and interview. In view of the above, this
Court is of the view that the respondents are to follow the procedure
as laid down in the Rules of 2011 while conducting the competitive
examination. Further, this Court is also of the view that now the
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Controller of Examinations has been appointed and the grievance
of the petitioners stands redressed.
61. In view of the final order of the Hon'ble Supreme Court
dated 11.2.2022 passed in SLP (Civil) Diary No.5680 of 2021 etc.
batch, supra, this Court is of the view that now the petitioners cannot
raise the aforesaid arguments as narrated infra since the Hon'ble
Supreme Court directed the MPSC to conduct the main
examination of MCSCC (Main) Examination, 2016 afresh within a
period of four months.
62. There is no dispute that now a responsible officer is
holding the charge of Controller of Examinations, MPSC. That
apart, in view of the amendments made in the Rules of 2011, the
petitioners have no right to challenge the impugned advertisement.
Since the petitioners are aggrieved persons of the MCSCC (Main)
Examination 2016 and the petitioners and similarly situated persons
have been permitted to appear in the main examination for
MCSCCE 2016 to be conducted pursuant to the order of the Hon'ble
Supreme Court dated 11.2.2022, now they have no right to
challenge the impugned advertisement dated 8.1.2019.
63. In the light of the aforesaid discussions, this Court is
of the view that the petitioners are not entitled to get the relief sought
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for in the writ petitions, as their grievances have been considered
by the Hon'ble Supreme Court while passing the order dated
11.2.2022.
64. In the result, the writ petitions are dismissed. The
interim stay already granted by this Court shall stand vacated.
Consequently, the vacate stay petitions filed by the respondent
State are allowed and the other miscellaneous petitions filed by the
petitioners stand closed. The respondent authorities may proceed
further as per the impugned notification dated 08.01.2019
expeditiously.
JUDGE
FR/NFR
Sushil
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