2015 Supreme(Megh) 108

IN THE HIGH COURT OF MEGHALAYA
T NANDAKUMAR SINGH, J.

Beauty Syiemlieh & Ors. - Petitioners
Vs.
State of Meghalaya & Ors. - Respondents
WP (C) No.298/2014
Decided On : 21.07.2015

The selection committee, in the absence of the mode of procedures for selection of candidates prescribed by Meghalaya Nursing Service Rules, 2008, can prescribe the mode of selection by issuing notification/orders.

Headnote:

WRIT PETITION - APPOINTMENT OF FEMALE HEALTH WORKERS - DIRECT RECRUITMENT TO GRADE VII OF MEGHALAYA NURSING SERVICE RULES, 2008 - CONSTITUTIONALITY OF SELECTION PROCEDURE - NEGATIVE EQUALITY/PAST PRACTICE - CONSTITUTIONAL SCHEME FOR REGULAR APPOINTMENT.

Fact of the Case:

Petitioners, who had completed 18 months course for female health workers as sponsored candidates/bonded candidates of the Govt. of Meghalaya, sought a direction to appoint them directly to the post of Grade VII of the Meghalaya Nursing Service Rules, 2008 without any sort of test i.e. written test and viva voce test and also for quashing the impugned advertisement inviting applications from eligible candidates for the post of ANM and the notification for constitution of the Departmental Committee for recruitment of staff nurses and ANMs.

Finding of the Court:

1. The selection committee, in the absence of the mode of procedures for selection of candidates prescribed by Meghalaya Nursing Service Rules, 2008, can prescribe the mode of selection by issuing notification/orders. 2. The petitioners cannot claim for appointment to the posts of ANM advertised in the impugned advertisement dated 17.01.2014 without subjecting them to any sort of selection tests on the basis of negative equality or past practice which is in violation of the constitutional scheme for regular appointment.

Issues: 1. Whether the writ petitioners who had completed 18th months course of female health workers as sponsored candidates/bonded candidates of the Govt. of Meghalaya are to be appointed directly to the post of ANMs or Grade VII post of the Meghalaya Nursing Service Rules, 2008 without any test i.e. written test as well as viva voce test by completely neglecting the rights of the other candidates who had completed 18th months course of female health workers and also the residents of the State of Meghalaya? 2. Whether the selection committee, in the absence of the mode of procedures for selection of candidates prescribed by Meghalaya Nursing Service Rules, 2008 can prescribe the mode of selection by issuing notification/orders? 3. Whether the writ petitioners can claim the relief sought for in the present writ petition on the basis of negative equality/past practice which is in violation of the constitutional scheme for regular appointment?

Ratio Decidendi: 1. The executive instructions can supplement a statue or cover areas to which the statute does not extend but they cannot run contrary to the statutory provisions or whittle down their effect. But in case the executive order does not conflict with the statute, both the provisions of the statute and executive order will prevail. 2. A claim based on merely legitimate expectation without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time: present, past and future. 3. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. The Apex Court in International Trading Co. case (Supra) held that: "13. …… It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short “the Constitution”) cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality."

Final Decision: Writ petition dismissed.