Gujarat High Court
Vijaykumar Ramsangbhai Chaudhari vs The State Of Gujarat on 27 February, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12862 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
==========================================================
Approved for Reporting Yes No
==========================================================
VIJAYKUMAR RAMSANGBHAI CHAUDHARI
Versus
THE STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR YN OZA LD SR.ADV. WITH MS NALANDA D ACHARYA(13355) for the
Petitioner(s) No. 1
MS POOJA ASHAR AGP for the Respondent(s) No. 1
MR KAMLESH S KOTAI(6150) for the Respondent(s) No. 2
MR NK MAJMUDAR(430) for the Respondent(s) No. 4,5
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 3
==========================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 27/02/2025
ORAL JUDGMENT
1. Issue Rule, returnable forthwith. Ms.Pooja Ashar, learned
A.G.P. waives service of Rule for the respondent no.1, Mr.Kamlesh
Kotai, learned advocate waives service of Rule for the respondent
no.2, Mr.Premal Joshi, learned advocate waives service of Rule for
the respondent no.3 and Mr.N.K. Majmudar, learned advocate
waives service of Rule for the respondent nos.4 and 5.
2. Heard Mr.Y.N. Oza, learned Senior Counsel appearing with
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
Ms.Nalanda Acharya, learned advocate for the petitioner, Ms.Pooja
Ashar, learned A.G.P. appearing for the respondent no.1,
Mr.Kamlesh Kotai, learned advocate appearing for the respondent
no.2, Mr.Premal Joshi, learned advocate appearing for the
respondent no.3 and Mr.N.K. Majmudar, learned advocate appearing
for the respondent nos.4 and 5.
3. By way of the present petition, the petitioner has prayed for
the following reliefs:-
"(A) Your Lordships may be pleased to admit and allow
this petition.
(B) Your Lordships may be pleased to issue a writ of
mandamus or a writ in the nature of Mandamus or any
other appropriate writ, order or direction to quash and
set aside the action of the respondent authority in
deleting the name of the petitioners from the select list
by holding that the deletion is unauthorized, illegal and
contrary to the rules of the advertisement and further
be pleased to direct the respondent authority to
appoint the present petitioner to the said post as per
his merit.
(C) Your Lordship may be pleased to issue a writ of
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
mandamus or a writ in the nature of Mandamus or any
other appropriate writ, order or direction to hold that
the private respondents herein do not have prescribed
qualification as per the advertisement and thereby to
exclude respondents no.3 and 4 while undertaking the
exercise to prepare the fresh list.
(D) Such other and further reliefs as may be deemed
just and expedient may be granted."
4. Briefly stated, the petitioner herein applied for the post of
Gram Sevak pursuant to the advertisement issued by the
respondent no.2 - District Panchayat. It is the case of the petitioner
that the petitioner has the requisite qualification of Bachelor in Rural
Studies (For short, "BRS") from a recognized university. The said
advertisement issued by the respondent no.2 is duly placed at
Annexure-A at page 20. The petitioner herein is aggrieved by the
illegal and arbitrary action on the part of the respondent no.2,
appointing the ineligible candidates for the post of Gram Sevak
(Class-III) and thereby, deleting the name of the petitioner from the
select list and by holding that such deletion is unauthorized, illegal
and contrary to the advertisement. The petitioner herein seeks a
writ of mandamus or direction, directing the respondent -
authorities to offer the appointment to the petitioner as per his
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
merits in his category on the post of Gram Sevak. The petitioner
preferred online application through OJAS website for the said
advertisement at Mehsana district. In the online application process,
the candidates were to select the option of qualification for
downloading the form at the preliminary stage. The application of
the petitioner was accepted online where, the petitioner correctly
stated the qualification to be BRS and also appeared in the written
test. Upon clearing the written test, the name of the petitioner
appeared in the provisional list published by the respondent
authority. The respondent nos.4 and 5 i.e. the private respondents,
knowing very well that their educational qualification was not
eligible for the post, downloaded the form by misrepresentation. The
forms were fraudulently downloaded with false information and
thereafter, when the process of document verification was done,
their original degrees were submitted before the authorities
wherein, their educational qualifications were shown to be B.Sc
Agriculture, which does not meet with the criteria for eligible
qualification as per Clause 3.1 of the advertisement for the said
post. The petitioner's name figured in the provisional merit list at
sr.no.146 at page 41. When the petitioner was called for the
verification of documents by the panchayat, he appeared before the
staff selection committee for verification of the documents. It was
conveyed at the relevant point of time that only the candidates
having prescribed qualification as per Clause 3 of the
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
advertisement, are eligible. Clause 3.1 of the said advertisement
reads as under:-
"3.1. A candidate shall possess either 2 years or 3
years of Diploma in Agriculture or Bachelor in Rural
studies obtained from any of the universities
established or incorporated by or under the Central
or State Act in India or any other educational
institution recognized as such or declared as being
University under Section 3 of the University Grant
Commission. Act 1956."
4.1. It means that only the candidate having 2 or 3 years diploma
in Agriculture or the candidates possessing Bachelors in rural
studies are eligible candidates for the post of Gram Sevak. No other
candidate, having any other degree, can be considered in the
eligibility criteria.
4.2. It is the case of the petitioner that the provisional list was
prepared, all the candidates were called for verification of
documents and all the candidates falling within the provisional list
were to submit their required documents and on the basis of such
verification, disqualification list was prepared by the authorities
wherein, all the candidates, who did not meet with the required
criteria, were remarked as "disqualified". The respondent nos.4 and
5 were remarked as "Reject (non-qualified degree)" in the list
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
against their names. The petitioner herein has impleaded the two
candidates as party respondents in the present petition. The said
qualification list is duly produced at "Annexure-D" at page 61 to 72.
It is the case of the petitioner that the name of the petitioner did not
appear in the selection list. However, there are certain other
candidates, who do not have the prescribed qualification of either
two to three years diploma in agriculture or bachelors in rural
studies, have found their place in the selection list above the
petitioner. The respondent nos.4 and 5 herein also appeared in the
final select list and are appointed on the post of Gram Sevak, who
possess a degree of B.Sc Agriculture, which is undisputedly not a
valid degree as per the recruitment rules. Reliance is placed on the
final list dated 03.04.2017 and revised final list dated 28.11.2018,
which are duly produced at Annexure-C.
4.3. It is the case of the petitioner that the private respondents
secured their jobs with initial act, which was not in consonance with
law. Subsequently, they cannot sanctify the same. Initially, the
respondents downloaded the forms with false information and
subsequently, at the time of document verification, supplied their
documents and thereafter, were shown as rejected as they did not
meet with the required qualification however, notwithstanding the
disqualification, they were miraculously shown as selected in the
select list.
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
4.4. It is the case of the petitioner that the conduct of the private
respondents in downloading the application forms by
misrepresentation and the conduct of the respondent authorities in
giving preferential treatment to a handful of ineligible candidates by
accepting their candidature even though they were falling in the
disqualified list, amounts to fraud. The impugned action of the
respondent no.2 in including the names of those candidates, who do
not meet with the prescribed qualification, is illegal, unlawful,
contrary to law and is liable to be quashed and set aside.
4.5. It is also the case of the petitioner that the similarly situated
petitioners in the districts i.e. Banaskantha and Arravali, approached
this Court in the year 2017 under Article 226 of the Constitution of
India, challenging the arbitrary and illegal action of the respondent
authority of appointing ineligible candidates to the post of Gram
Sevak (Class-lII) and thereby, deleting the name of the petitioners
from the select list by holding that the deletion is unauthorized.
4.6. Special Civil Application No.15597 of 2017, which was filed by
the identically placed petitioners from district: Banaskantha was
dismissed by order dated 20.03.2022. The aforesaid order was the
subject matter of appeal by filing Letters Patent Appeal No.705 of
2023, which came to be allowed. It is the case of the petitioner that
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
the said judgment is in rem wherein, the Division Bench of this Court
has held that the Rule is clear to mention the qualification precisely.
The advertisement was issued accordingly and the eligibility was
mentioned confined to such qualification. It was not possible to be
construed for its any clarity to accommodate the candidates with
higher qualification to be eligible. The Rule has to be applied as it
stood. Giving flexibility to accommodate the candidates with higher
qualification in absence of anything contained in the rule in that
regard would indeed be impermissible in law.
4.7. The judgment rendered by the Division Bench, as referred
above, was the subject matter of challenge before the Hon'ble Apex
Court wherein, Special Leave Petition (c) No.27101 of 2023 came to
be rejected by order dated 15.12.2023. A review application being
Review Petition (Civil) No.231 of 2024 was preferred by the original
respondents before the Hon'ble Apex Court, which also came to be
dismissed vide order dated 23.07.2024. As per the petitioner's
information, the private respondents, who were ineligible for the
post of Gram Sevak, are terminated and a fresh select list has been
prepared, including the names of the petitioners therein giving them
the appointment to the said post. The petitioner herein approached
the competent authority that the petitioner is similarly situated
however, the authorities did not consider the representations made
by the petitioner. The representation dated 31.07.2024 is duly
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
produced at "Annexure-F.
4.8. In light of the aforesaid facts, the petitioner herein is
constrained to approach this Court for the reliefs, as referred above,
on the ground that all the district panchayats issued their own
advertisement and some district panchayats though considered the
candidates possessing B.Sc. Agriculture candidates, not fit for
appointment, notwithstanding not having considered them unfit for
appointment on the basis of qualification, later gave them the
appointment for the post of Gram Sevak. This was not made known
to the world at large otherwise, lakhs of candidates holding such
degree in B.Sc. Agriculture, would have applied for the said post,
this was a dishonesty on the part of the respondent no.2.
4.9. In light of the aforesaid, it is prayed that the respondent be
directed to hold that the private respondents do not have the
prescribed qualification as per the advertisement and thereby,
exclude the respondent nos.4 and 5 while undertaking the exercise
to prepare the fresh list.
5. Mr.Y.N. Oza, learned Senior Counsel appearing with
Ms.Nalanda Acharya, learned advocate for the petitioner, relied on
the facts, as referred above and submitted that the petitioner herein
is holding the requisite degree of BRS from a recognized university
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
and falls within the qualifying criteria of clause - 3.1 of the
advertisement issued by the respondent no.2 for the post of Gram
Sevak (Class-III) in November, 2016. It is submitted that the
petitioner's name also figured in the provisional merit list at
sr.no.146 at page 41, which is also not in dispute. It is submitted
that the private respondent nos.4 and 5 were disqualified in the list
dated 18.03.2017, which is produced at Annexure - D at page 61. It
is submitted that when the final merit list was issued, the name of
the petitioner did not figure in the said list however, the names of
the private respondent nos.4 and 5 were included in the selection
list at sr.no.72 qua the respondent no.4 and sr.no.142 qua the
respondent no.5 for which, reliance is placed on pages 61 and 65
respectively. It is submitted that the petitioner herein is identically
placed to the petitioners of Special Civil Application No.15597 of
2017 however, the final list, which is duly produced at page 44
dated 03.04.2017 and the revised final list, which is duly produced
at page 56 dated 28.11.2018 do not include the name of the
petitioner herein. It is submitted that the identically placed
petitioners had approached this Court, whose names figured in the
provisional merit list and were having the requisite qualification of
BRS from a recognized university and had participated pursuant to
the advertisement inviting applications for the post of Gram Sevak
in November, 2016. While the said petition came to be dismissed
vide order dated 20.03.2023 at page 73 and appeal, which was filed
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
by the original petitioners came to be allowed wherein, the Division
Bench, while allowing the appeal, considered the identical question
before this Court, directing the private respondent nos.3 to 11, who
were holding the decree of bachelor in agriculture, to be excluded
while undertaking the exercise to prepare a fresh list in order to
exact the positions of the petitioners at their respective merit list in
the category concerned and further directions were issued in
paragraph 10 of the said order.
5.1. It is submitted that the aforesaid was also challenged before
the Hon'ble Apex Court by the original respondents wherein, the
Special Leave Petition came to be dismissed by order dated
15.12.2023 at page 114. The review petition also came to be filed
which came to be dismissed on 23.07.2024. It is submitted that the
petitioner herein, in light of the aforesaid, approached the
competent authority on the ground that the petitioner herein is also
identically placed and that, the judgment rendered by the Division
Bench is in rem wherein, it is categorically held that the Rule is very
clear with respect to the qualification and the advertisement was
issued accordingly. The eligibility criteria, as mentioned in the Rule
and the advertisement, was to be confined to. In such
circumstances, it was not open to accommodate the candidates with
higher qualification. However, the respondent - authority has not
answered the petitioner's representation. It is submitted that in light
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
of the aforesaid, the petitioner has approached this Court. It is
submitted that the appointment orders in favour of the respondent
nos.4 and 5 are contrary to the Rules and the advertisement issued
and in view thereof, the case of the present petitioner is governed
by the ratio laid down by the Division Bench in Letters Patent Appeal
No.705 of 2023, which came to be allowed by CAV judgment dated
10.11.2023.
6. Mr.Kamlesh Kotai, learned advocate appearing for the
respondent no.2 relied on the affidavit-in-reply, which is duly
produced at page 227. Placing reliance on the same, it is submitted
that the present petition is required to be dismissed in limine. It is
submitted that subsequent to the advertisement issued for the post
of Gram Sevak (Class-III) in the year 2016, another advertisement
for the same post is also issued in the year 2022, which indicates
that the recruitment process of 2017 has attained finality. It is
submitted that the petitioner failed to raise any objection at the
relevant point of time which clearly establishes the mala fide
intention of the petitioner by filing the present petition after
inordinate delay. The respondent nos.4 and 5 were duly appointed
in the year 2017 after undergoing the prescribed selection process
and their services were regularized in the year 2022. The said
appointments were made after proper scrutiny, verification of
documents and due diligence. It is submitted that it is well settled
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
position of law that the Courts do not entertain challenges to the
recruitment processes after unreasonable delay, unless exceptional
circumstances are demonstrated. Reliance is placed on the ratio laid
down by the Apex Court in the case of Union of India and others Vs.
Tarsem Singh reported in (2008)8 SCC 648. It is submitted that the
petitioner has not produced any credible evidence to show that the
selection of the respondent nos.4 and 5 was contrary to law. It is
submitted that the respondent no.2 issued advertisement along
with the same procedure of selecting the candidates, taking
examination, issuing final list. It is submitted that the respondent is
the only authority to directly provide appointment letters to the
selected candidates by the respondent no.3 herein. The last
communication from the respondent no.3 to the respondent no.2 for
appointment of the candidates was received and thus, the
appointments are made. The selections and appointments of the
candidates are finalized by the respondent no.3. Reliance is placed
on the communication dated 22.05.2017 (page 236 - R-1). It is
submitted that the petitioner has neither submitted any
representation nor filed any objection before the competent
authority with respect to the appointments of the respondent nos.4
and 5. The aforesaid clearly indicates the mala fide intention of the
petitioner, which lacks bona fide. It is submitted that the petitioner
has failed to produce the final appointment list, which is crucial
document to substantiate the claim of the petitioner. In absence of
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
such evidence, the allegation made by the petitioner remains
speculative vague and devoid of any legal merit.
6.1. It is submitted that the petitioner having remained silent for 7
years and now cannot seek to unsettle appointments that have
been acted upon and regularized. It is submitted that even after
regularization of the private respondents in the year 2022, the
petitioner did not object, which demonstrates that the grievance
raised by the petitioner is not genuine. It is submitted that persons,
who sleep over their rights and approach the Courts belatedly,
cannot be granted any relief as the same would result into
administrative uncertainty and injustice to those, who are appointed
lawfully. It is submitted that the petitioner has selectively chosen to
raise objections after a lapse of 7 years, which speaks volumes
about the conduct of the petitioner.
6.2. Placing reliance on the aforesaid submissions, it is submitted
that the present petition be dismissed in limine.
7. Mr.Premal Joshi, learned advocate appearing for the
respondent no.3, at the outset, has pointed out that the affidavit
filed by the respondent no.2 is a false affidavit. Placing reliance on
the documents produced on record, it is submitted that the entire
exercise from issuance of the advertisement to the preparation of
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
the final list, is undertaken by the respondent no.2 herein. To
substantiate the aforesaid, reliance is placed on the advertisement,
which is duly produced at 20 - Annexure-A, provisional list - page
34, final list - page 44, revised final list - page 56. It is submitted
that the aforesaid exercise is undertaken by the respondent no.2
herein. It is submitted that as such, no reliefs are prayed for, against
the respondent no.3 herein but, in the interest of justice, it was
required to be pointed out to the Court that the affidavit filed by the
respondent no.2 is contrary to the documents produced on record
and is a false affidavit.
8. Mr.N.K. Majmudar, learned advocate appearing for the private
respondent nos.4 and 5, relied on the affidavit-in-reply, which is duly
produced at page 119 and submitted that the private respondents
herein are selected upon dew procedure undertaken by the
respondent no.2 herein. Placing reliance on paragraphs 9 to 32 of
the affidavit, it is submitted that the respondent nos.4 and 5
appeared in the written test and apropos the same, the provisional
merit list came to be prepared, which is duly produced at Annexure-
B at page 34. It is submitted that the names of the private
respondents also figured in the preliminary merit list. At the time
when the final list was published, the respondent no.4 figures at
sr.no.72 and the respondent no.5 at sr.no.94 and had written B.Sc
Agriculture in the remarks column. In view thereof, the respondent -
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
authority was aware of the qualification of the respondent nos.4 and
5 that they are B.Sc Agriculture. It is submitted that the petitioner
herein fulfill the qualification criteria as per the advertisement and
in view thereof, the petitioner's name appeared in the revised merit
list. It is submitted that the respondent nos.4 and 5 have completed
more than 7 years and 6 months in their service as Gram Sevak.
The initial appointment of the respondent nos.4 and 5 was made on
fixed salary however, upon completion of 5 years, the confirmation
orders/orders granting regular pay scale on permanent sanctioned
post were issued by the respondent - authorities by order dated
13.06.2022 and are receiving regular pay scale on permanent
sanctioned post, which is duly marked as Annexure-R3 to the
affidavit. It is submitted that the petitioner herein had also
participated in the selection process on the basis of the
advertisement dated 23.11.2016. The petitioner herein has failed to
even prima facie establish the right to challenge the appointment
orders of the respondent nos.4 and 5. The respondent no.4 had
filled up the application seeking appointment as Gram Sevak under
Socially and Economically Backward Class (SEBC) and the
respondent no.5 had filled up application, seeking appointment
under SC category. However, considering the merits obtained by the
respondent no.5, the respondent no.5 was given placement,
considering the higher merits along with the general category
candidates. The respondent no.4, who had filled up the form from
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
SEBC category, there had been one candidate i.e. Mukeshkumar
Samabhai Prajapati. In view thereof, the petitioner would never be
able to secure the appointment even though, the present
respondent no.5 would not have been appointed as Gram Sevak as
there would be absolutely different category, different merit list and
marks assigned of different numbers in merit list qua the petitioner
and the respondent no.5 as the petitioner has applied under the
SEBC category. The petitioner was shown at sr.no.146 in the
provisional merit list on the basis of the merit i.e. 32.700 however,
there has been another candidate i.e. Mukeshbhai Samabhai
Prajapati, who was having the same marks and the aforesaid
candidate is shown at sr.no.171 in the final merit list and in view
thereof also, the present petition deserves to be dismissed, said
candidate - Mukeshbhai Samabhai Prajapati having not joined as a
respondent.
8.1. Placing reliance on paragraph 23 of the reply, it is submitted
that the respondent nos.4 and 5 have cleared all the departmental
examinations and it is denied that the respondent nos.4 and 5 have
committed any fraud. It is submitted that the respondent nos.4 and
5 were appointed upon following the due procedure and in view
thereof, the appointments of the respondent nos.4 and 5 are just
and proper. It is submitted that the respondent nos.4 and 5 are
having higher qualification than the prescribed qualification and all
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
the subjects, which are being included in the BRS science or
diploma, such subjects have been studied by the respondent nos.4
and 5 herein while seeking the degree of B.Sc. Agriculture and as
the aforesaid aspect was within the knowledge of the respondent -
authorities, the respondent - authorities were receiving the
concerned candidates with higher qualification than the prescribed
qualification and, therefore, the same would infer that the
respondent - authorities would get higher qualified candidates i.e.
the present respondent nos.4 and 5 as compared to the other
candidates, who are having qualification of BRS, which was a lower
level qualification compared to the degree of B.Sc. Agriculture. It is
denied that the respondent nos.4 and 5 have committed any fraud
with the respondent - authorities and once the concerned
government authorities have given appointments to the respondent
nos.4 and 5 with full knowledge of degree of B.Sc. Agriculture, it is
denied that the respondent nos.4 and 5 have committed fraud in
securing the appointment. It is submitted that the petitioner herein
is not the similarly situated person qua the petitioners of Special
Civil Application No.15597 of 2017 and considering the prayer
clause of the present petition, the prayers, as prayed for, by the
present petitioner have become redundant or infructuous and the
petitioner has no right to pray for granting prayers, as prayed for, in
paragraph 7 of the petition and that, the petition be dismissed in
limine.
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
8.2. It is submitted that unless all the lists, as prayed for, are
quashed and set aside and unless all the lists had remained in force
at the relevant point of time i.e. in the year 2017, the prayers, as
prayed for, in paragraph 7 would have been maintainable and such
prayers may not be granted even though the petitioner had
preferred the petition in the year 2017 itself as without seeking
prayer of quashment of merit list, denovo fresh merit list may not be
prayed to be prepared by the authorities and once all the lists came
to be published without impleading all the candidates, whose names
included in the said lists and without there being any prayer for
quashment of the merit list and without there being any orders of
quashing and setting aside the merit list, it would not be open for
the petitioner to pray that the fresh merit list be kindly be ordered
to be prepared and, therefore, under such circumstances also, the
present petition is required to be dismissed. It is submitted that the
fresh advertisement was issued being advertisement no.15/2021-22
on 28.03.2022 and it is not open for the petitioner to challenge the
recruitment process which has come to an end. It is submitted that
the final list is published as back as in the year 2017, the services of
the respondent nos.4 and 5 are regularized and in view thereof also,
the present petition is barred by delay and laches.
8.3. Placing reliance on paragraph 31, it is reiterated that the
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
respondent nos.4 and 5 have not committed any fraud nor have
played any mischief with the concerned authorities so far as the
recruitment process is concerned. The respondent nos.4 and 5 are
appointed upon following the due process of law and in view
thereof, the reliefs, as prayed for, in the present petition are such
that the same may not be granted.
8.4. To substantiate the aforesaid contentions, Mr.Majmudar,
learned advocate appearing for the private respondent nos.4 and 5
relied on the ratio laid down by the Hon'ble Apex Court in the case
of Jyoti K.K. vs. Kerala Public Service Commission reported in
(2010)15 SCC 596 and submitted that the higher qualification of
degree in the same field pre-supposes the acquisition of lower
qualification of diploma. In view thereof, such candidates are eligible
to apply for the post as Rules do not disqualify them per se.
8.5. Reliance is placed in the case of State Of Uttar Pradesh And
Others vs. Arvind Kumar Srivastava And Others, reported in (2015) 1
SCC 347 wherein, the Hon'ble Apex Court held that those, who
approach the Court at belated stage, can be said to be fence-sitters.
The delay would be a valid ground to dismiss their claim when, no
explanation comes-forth to explain the delay. No relief can be given
to such selectees. It is submitted that the present petition is also
barred by delay and laches wherein, the petitioner has approached
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
this Court after a delay of 7 years and that, the petition be
dismissed on the said ground alone.
9. Mr.Y.N. Oza, learned Senior Counsel, in rejoinder, reiterated
the contentions raised earlier and placed reliance on the judgments
of the Hon'ble Apex Court in the case of (i) Union of India and Ors. Etc.
vs. Prohlad Guha Etc., reported in 2024 AIR SC 3558 (ii) Lt. Col. Suprita
Chandel vs. Union of India and Others reported in 2024 SCC OnLine
SC 3664 (iii) Ram Preeti Yadav vs. Uttar Pradesh Board of High
School And Intermediate Education, reported in (2003) 8 SCC 311 -
fraud (iv) Ram Chandra Singh vs. Savitri Devi reported in (2003)8
SCC 319 - fraud and misrepresentation (v) Thangam and another vs.
Navamani Ammal reported in 2024 (4) SCC 247 - wherein, the
Hon'ble Apex Court was dealing with the filing of the written
statement under Order 8 Rule 3, 5. No specific parawise reply was
given. In absence of any parawise reply, such contentions are
denied of such pleadings, the same are construed to have been
accepted. (vi) State of Andhra pradesh vs. T. Suryachandra Rao
reported in (2005)6 SCC 149 - Fraud.
9.1. Mr.Oza, learned Senior Counsel has also placed on record the
appointment orders of the original petitioners of Special Civil
Application No.15597 of 2017 and submitted that the order passed
by the Division Bench in Letters Patent Appeal No.705 of 2023 is
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
also complied with. Reliance is also placed on the order passed in
Special Leave Petition (Civil) Diary No.26387 of 2024, which came to
be dismissed.
9.2. It is reiterated that the respondent - authority is governed by
the Rules and the advertisement and it was not open for the
respondent - authority to go beyond the same. The aforesaid has
also attained finality by the CAV judgment delivered by the Division
Bench in Letters Patent Appeal No.705 of 2023.
ANALYSIS
10. Having heard the learned advocates appearing for the
respective parties, it emerges that the petitioner and respondent
nos.4 and 5 herein applied for the post of Gram Sevak (Class-III)
pursuant to the advertisement dated 23.11.2016 issued by the
respondent no.2, which is duly produced at Annexure-A at page 20
for district: Mehsana.
11. Clause 3.1 of the said advertisement, as referred to in
paragraph 3 above, provides for age-limit and the educational
qualification.
12. The petitioner is Bachelor in Rural Studies and the respondent
nos.4 and 5 are B.Sc. Agriculture. The petitioner's name figured in
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
the provisional merit list at sr.no.146 page 61. The names of the
respondent nos.4 and 5 also figured in the provisional merit list
however, the respondent nos.4 and 5 were in the disqualification
list, which is duly produced at page 67 and 69 at sr.nos.106 and 143
respectively. However, when the final list was published, the
petitioner's name did not figure in the said list and the names of the
respondent nos.4 and 5 were appeared in the final merit list. The
revised final list dated 28.11.2018 was also published by the
respondent no.2. The identically placed petitioners filed a petition
being Special Civil Application No.15597 of 2017 at page 73, which
came to be dismissed by order dated 20.03.2023. It is not in dispute
that the merit list, which included the names of the private
respondent nos.4 and 5 was published prior to the order passed in
the said Special Civil Application No.15597 of 2017 on 20.03.2023.
The original petitioners preferred appeal being Letters Patent
Appeal No.705 of 2023, challenging the order passed in Special Civil
Application No.15597 of 2017. The Division Bench, by CAV judgment
dated 10.11.2023, formulated the following question of law, which is
recited in paragraph 1 of the said judgment at page 86, which reads
thus:-
"Whether in the facts of the case, it was open for
the employer to deviate from the eligibility
prescribed in the Rules and addordingly in the
advertisement, by treating the candidates
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
possessing the qualification other than the
prescribed, which was higher qualification, on the
projected ground that the higher qualification held
by the candidate could be presupposed taken as
they having inclusively possessed the lower
qualification, especially when the Rules do not so
contemplate."
13. While deciding the aforesaid issue, it is held by the Division
Bench that it is not open for the employer to deviate from the
eligibility prescribed in the Rules and accordingly as per the
advertisement, by treating the candidates possessing the
qualification other than the prescribed, which was higher
qualification, holding that the candidates could be pre-supposed, as
they inclusively possessed the lower qualification, which was not
contemplated in the Rules, considered in the advertisement. The
respondents in the said appeal were also holding the degree of B.Sc.
Agriculture. The Division Bench, in paragraph 3.1, has reproduced
the qualifying criteria, as prescribed in the advertisement and Rule
3 of the Rules, which reflected the eligibility requirement in
paragraph 3.3.
14. Considering the aforesaid homogeneously, the Division Bench,
after considering the rival contentions raised by the respective
advocates appearing for the respective parties, held in paragraphs
1, 2, 3, 5.4.4., 5.4.5., 5.4.6, 5.4.7, 5.5., 5.6, 6.1, 6.2, 6.3, 7,8,9, 9.1,
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
9.2, 9.3, 9.4, 10, and 10.1, which read as under:-
"1. A crisp question of law arises for
consideration,
- whether in the facts of the case, it was open for
the employer to deviate from the eligibility
prescribed in the Rules and addordingly in the
advertisement, by treating the candidates
possessing the qualification other than the
prescribed, which was higher qualification, on the
projected ground that the higher qualification held
by the candidate could be presupposed taken as
they having inclusively possessed the lower
qualification, especially when the Rules do not so
contemplate.
2. Preferred by the original petitioners, 2 in
numbers, the present Letters Patent Appeals
address challenge to judgment and order dated
20.03.2023 of learned Single Judge whereby the
Special Civil Applications of the petitioners were
dismissed. The appellants-petitioners wee denied
the relief.
2.1 What was prayed by the appellants-petitioners
in their Special Civil Application was to set aside
the action on the part of the respondent authorities
in deleting their names from the select list. They
prayed to declare that the deletion was
unauthorised and illegal. It was next prayed to
direct the respondents to offer appointments to the
petitioners as per their own merit in the respective
categories on the post of Gram Sevak.
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
2.2 Additional prayer was made by amending the
petition seeking to set aside the appointments of
respondents no.3 to 11 made by the District
Panchayat Service Selection Committee on the
post of Gram Sevak and to appoint the petitioners
to the said post after revising the final merit list
produced by the respondent no.2 committee.
3. For recruiting Gram Sevaks, Class III, the
advertisement came to be issued by the Panchayat
in November 2016. Clause 3 of the advertisement
mentioned the age criteria and the educational
qualifications for the post.
3.1 In clause 3.1 of the advertisement, the
education qualifications required were prescribed
to be as under,
"A candidate shall possess-
(i) either two years or three years diploma in
Agriculture or Bachelor in Rural Studies Obtained
from any of the university established or
incorporated by or under the central or state Act in
India or any other educational institutions
recognized as such or declared as Deemed
university under section 3 of the University Grants
Commission Act, 1956;
(ii) the basic knowledge of computer applications
as prescribed in the Gujarat Civil Services
Classification and Recruitment (General)
Rules,1967;
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
(iii) adequate knowledge of Gujarati or Hindi or
both."
3.2 The aforesaid eligibility prescription mentioned
in the advertisement was based on above Rule 3 of
the Rules called Gram Sevak, Class- III in the
Superior Panchayat Service Recruitment Rules,
2014, which was framed by the State Government
in exercise of powers conferred by sections 227
read with section 274 of the Gujarat Panchayats
Act, 1993, for the purpose of regulating the post of
Gram Sevak, Class-II.
3.3 Rule 3 of the said Rules, which reflected in the
eligibility requirement, mentioned in the
advertisement, reads as under,
"3. To be eligible for appointment by direct
selection to the post mentioned in rule-2, a
candidate shall-
(a) not be less than 18 years and not be more
than 30 years of age:
Provided that the upper age limit may be
relaxed in favour of a candidate who is already in
the Gujarat Panchayat Service in accordance with
the provisions of the Gujarat Panchayat Services
Classification and Recruitment (General) Rules,
1998:
Provided further that the upper age limit may
also be relaxed in favour of a candidate who is
already i the service of the Government of Gujarat
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
in accordance with the provisions of the Gujarat
Civil Services Classification and Recruitment
(General) Rules, 1967;
(b) possess -
(i) either two years of three years Diploma in
Agriculture or Bachelor in Rural Studies obtained
from any of the Universities established or
incorporated by or under the Central or State Act
in India or any other educational institutions
recognized as such or declared as Deemed
University under section 3 of the University Grants
Commission Act, 1956;
(ii) the basic knowledge of computer applications
as prescribed in the Gujarat Civil Services
Classification and Recruitment (General) Rules,
1967; and
(iii) adequate knowledge of Gujarati or Hindi or
both."
3.4 In response to the advertisement issued in
November 2006 by the respondent District
Panchayat, all the appellants-petitioners made
their online applications to be considered for the
post in the recruitment process. They had the
requisite qualification as mentioned in the Rules
and advertisement of Diploma in Agriculture of
either two years or three years or Bachelor in Rural
Studies. They appeared and cleared written test.
The names of the petitioners figured in the
provisional list published by the Panchayat.
3.5 It is further the case that in course of the
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
verification of the documents, respondents
examined whether the candidate has been
possessing the said educational qualification which
is the eligibility criteria prescribed in the Rules. It is
the grievance that when the selection list was
prepared, the names of the petitioners did not find
the place in the list, although their names were
included in the provisional list. It is the case that
other candidates-private respondents no.3 to 11
herein, who did not possess the qualifications
mentioned in the advertisement, but possessed
the degree of B.Sc., Agriculture, were considered
and their names were included in the list.
3.6 It was the case that the candidates who
possessed B.Sc., Agriculture were not eligible since
their qualification did not match the qualifications
required in the Rules and in the advertisement. It
was submitted that their names were required to
be deleted from the select list prepared by the
respondent no.2-District Panchayat Service
Selection Committee. It was contended that the
appointment letters issued to respondents no. 3 to
11 were also required to be set aside.
3.7 It was the further say of the petitioners that the
petitioners need to be appointed on the post of
Gram Sevak, Class-III, as per their own merits by
refusing the final list after deleting the names of
respondents no.3 to 11. The said averments were
made by seeking amendment in the petition, which
was permitted.
5.4.4 It was not possible to conclude that the
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
higher qualification would presuppose the inclusion
or acquisition of the lower qualification, unless
such presupposition finds support from the Rules.
5.4.5 After analysis of the aforesaid all the
judgments, the law was asserted by the Supreme
Court in Zahoor Ahmad (supra) that the
prescription of qualification for the post is in the
realm of recruitment policy and it is the function of
the employer to prescribe the qualification as
condition of eligibility,
"We are in respectful agreement with the
interpretation which has been placed on the
judgment in Jyoti KK in the subsequent decision in
Anita (supra). The decision in Jyoti KK turned on
the provisions of Rule 10(a)(ii). Absent such a rule,
it would not be permissible to draw an inference
that a higher qualification necessarily pre-
supposes the acquisition of another, albeit lower,
qualification. The prescription of qualifications for a
post is a matter of recruitment policy. The state as
the employer is entitled to prescribe the
qualifications as a condition of eligibility. It is no
part of the role or function of judicial review to
expand upon the ambit of the prescribed
qualifications." (para 26)
5.4.6 It was further added and observed by the
Supreme Court,
"Similarly, equivalence of a qualification is
not a matter which can be determined in exercise
of the power of judicial review. Whether a
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
particular qualification should or should not be
regarded as equivalent is a matter for the state, as
the recruiting authority, to determine. The decision
in Jyoti KK turned on a specific statutory rule under
which the holding of a higher qualification could
pre-suppose the acquisition of a lower
qualification. The absence of such a rule in the
present case makes a crucial difference to the
ultimate outcome. In this view of the matter, the
Division Bench of the High Court was justified in
reversing the judgment of the learned Single Judge
and in coming to the conclusion that the appellants
did not meet the prescribed qualifications. We find
no error in the decision of the Division Bench."
(para 26)
5.4.7 The Supreme Court cautioned in Zahoor
Ahmad (supra),
"All these are essentially matters of policy.
Judicial review must tread warily. That is why the
decision in Jyoti KK must be understood in the
context of a specific statutory rule under which the
holding of a higher qualification which presupposes
the acquisition of a lower qualification was
considered to be sufficient for the post. It was in
the context of specific rule that the decision in Jyoti
KK turned." (para 27)
5.5 The jurisprudence says that it is the employer
only, who is the right person who should have
leeway and the free-way to prescribe the
qualification was that while prescribing the
qualification for a post, the State or any employer
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
would legitimately bear in mind several factors
such as nature of job, the requirement for
discharging of duties, the functionality of the
qualification, content of the course of the studies,
etc. The requirements of the post known to the
employer and the qualification for the post would
be prescribed accordingly.
5.6 At this stage, Division Bench decision of this
Court in Leelaben Chaudhary vs. State of Gujarat,
which was Letters Patent Appeal No. 349 of 2018
decided on 11.05.2018 and pressed into service by
the respondents may be dealt with. The post was
same carrying same qualification. In that case
however, the question was whether the
qualification of Bachelor of Rural Studies could be
equated with graduation in Rural Studies
(Agriculture) or Rural Studies (Animal Husbandary)
etc. Essentially, it was the question of applying
equivalence of the qualification. It is not the case
here. The reliance on this judgment therefore was
wholly misconceived.
6.1 It was contended therefore that the
Matriculation with Diploma was only minimum
requirement and that in the recruitment process
undertaken by the Himachal Pradesh State
Electricity Board (HPSEB), the employer was
entitled to choose a person with higher
qualification. Thus, the aspect is to be noticed is
that the word "minimum" is used in the Rule to
give room to the employer.
6.2 The reasoning adopted by the Court in Puneet
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
Sharma (supra) was thus,
"In the present case, what is evident from the
rules is that direct recruitment to the post of JEs in
HPSEB is to the extent of 72%. Undoubtedly,
eligibility is amongst those who passed in
matriculation or 10+2 or its equivalent
qualification. However, this Court is of the opinion
that the diploma holders' contention that the
minimum qualification is matriculation and that the
technical qualification is diploma is incorrect. The
minimum qualification for the post cannot be
deemed to be only matriculation but rather that
only such of those matriculates, or 10+2 pass
students, who are diploma holders would be
eligible. The term "with" in this category has to be
read as conjunctive." (Para 30)
6.3 The set of facts and aspects in Puneet Sharma
(supra) were conspicuously different. It was a
clarificatory amendment, which was brought into
force, which was applied with further reasoning
based on the facts about filling-up of the posts.
The Supreme Court in Puneet Sharma (supra)
summed up thus, which again go to show that the
decision in Puneet Sharma (supra) was based on
facts operated in that case,
"The considerations which weighed with this
court in the previous decisions i.e. P.M. Latha,
Yogesh Kumar, Anita (Supra) were quite different
from the facts of this case. This court's conclusions
that the prescription of a specific qualification,
excluding what is generally regarded as a higher
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
qualification can apply to certain categories of
posts. Thus, in Latha and Yogesh Kumar as well as
Anita (supra) those possessing degrees or post-
graduation or B.Ed. degrees, were not considered
eligible for the post of primary or junior teacher. In
a similar manner, for "Technician-III" or 17(2019) 8
SCC 416 18 SLP (C) 10533-37 of 2020 lower post,
the equivalent qualification for the post of Junior
Engineer i.e. diploma holders were deemed to
have been excluded, in Zahoor Ahmed Rather
(supra). This court is cognizant of the fact that in
Anita as well as Zahoor (supra) the stipulation in
Jyoti (supra) which enabled consideration of
candidates with higher qualifications was deemed
to be a distinguishing ground. No such stipulation
exists in the HPSEB Rules. Yet, of material
significance is the fact that the higher post of
Assistant Engineer (next in hierarchy to Junior
Engineer) has nearly 2/3rds (64%) promotional
quota. Amongst these individuals, those who held
degrees before appointment as a Junior Engineers
are entitled for consideration in a separate and
distinct subquota, provided they function as a
Junior Engineer continuously for a prescribed
period. This salient aspect cannot be overlooked; it
only shows the intent of the rule makers not to
exclude degree holders from consideration for the
lower post of Junior Engineers." (Para 38)
7. In the present case, the Rule is clear to mention
the qualification precisely. The advertisement was
issued accordingly and the eligibility was
mentioned confined to such qualification. It was
not possible to be construed for its any clarity to
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
accommodate the candidates with higher
qualification to be eligible. Rule has to be applied
as it stood. Giving flexibility to accommodate the
candidates with higher qualification in absence of
anything contained in the rule in that regard would
indeed be impermissible in law.
8. The decision of learned Single Judge whereby
the petitions as were dismissed was based on the
another decision in Ketankumar Shanabhai Kotwal
(supra), as well as the impugned judgment of
learned Single Judge. Ketankumar Shanabhai
Kotwal (supra) as well as the impugned judgment
of learned Single Judge could be said to have
misapplied the law in treating the candidates with
higher qualifications-respondents no.3 to 11 to be
eligible although their qualification did not match
the only qualification prescribed in the
advertisement and in the Rule. The decision of
learned Single Judge would not sustain.
9. Projected as lead contention, it was canvassed
on behalf of the respondents opposing the
entitlement to be appointed for the petitioners that
the petitioners' category was scheduled caste
category and that the said category vis-a-vis the
other category candidates had minimum cut-off
marks. It was submitted that the petitioners would
therefore not be selected on merits to be entitled
to be appointed.
9.1 In view of the Court, this aspect is only a
secondary factor. The petitioners' name figured in
the provisional list. However, when the final list
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
was published, their names were disappeared and
private respondents' names were entered to the
exclusion of the petitioners who are admittedly
qualified and eligible on merits.
9.2 Therefore, unless the fresh exercise is
undertaken about preparing the merit list by
excluding the ineligible candidates and including
the petitioners, the final position cannot emerge. It
is only upon such ultimate exercise, the picture
could become clear that the petitioners in
whichever category figured, are entitled to be
selected on merits to be appointed.
9.3 In view of what is held, respondents no. 3 to 11
have to be excluded while undertaking the
exercise to prepare the fresh list, they have to be
excluded in order to exact the positions of the
petitioners at their respective merit place in the
category concerned.
9.4 The displacement of petitioners was on
account of entry of private respondents
subsequently and during the process, eventhough
the petitioners were included in the provisional list
having been found eligible.
10. In above light, unless the fresh select list is
prepared of all the eligible candidates, excluding
the private respondents no. 3 to 11, who are
treated to be not eligible, actual merit position
would not become clear.
10.1 In view of the above discussion, Letters
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
Appeal is allowed. The following directions are
given,
(i) The competent authority of the respondents is
directed to prepare a fresh select/merit list.
(ii) The names of the petitioners shall be included
in such list which were excluded from the
provisional list.
(iii) The authority shall shall not include the names
of private respondents in the fresh select list to be
prepared as above.
(iv) The fresh final select list will be prepared by
including the petitioners, however after excluding
respondents no.3 to 11 who are not eligible.
(v) The final merit list shall be accordingly
operated category-wise for the purpose of giving
appointment.
(vi) If the appellants-petitioners herein stand on
merit in the fresh select list, to be operated as
above, they shall be given appointment in order of
merit."
15. While allowing the appeal, the Division Bench, in paragraph 7,
held that the Rule is clear to mention the qualification precisely. The
advertisement was issued, accordingly, the eligibility was
mentioned confined to such qualification. It was not possible to be
construed for its clarity to accommodate the candidates with higher
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
qualification to be eligible. The Rule is required to be applied as it
stood. It was not open to give flexibility to accommodate the
candidates with higher qualification in absence of anything
contained in the rule in that regard, which would be impermissible in
eye of law. Having arrived at the aforesaid conclusion, it was
directed, as referred above, in paragraphs 9 and 10 to exclude the
respondent nos.3 to 11 of the said appeal and prepare a fresh merit
list with the other directions. The Hon'ble Apex Court has also
declined to interfere with the said CAV judgment rendered by the
Division Bench.
16. In the opinion of this Court, the judgment rendered by the
Division Bench governs the field wherein, it is categorically held, as
above, that when the Rules mention clear qualification and the
advertisement is also issued in accordance with the Rules, it is not
open to deviate from the said by considering the candidates with
the higher qualification. The aforesaid issue was pending before the
Court until 2024. Upon such decisions having been rendered by the
Division Bench and the Hon'ble Apex Court, in the opinion of this
Court, the respondent - authority was required to act in accordance
with the law laid down by the Division Bench. The respondent -
authority however, has taken a stance that the petition is barred by
delay and laches. That, the petitioner failed to raise objections at
the relevant point of time in the year 2017 and also, when the
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
services of the private respondents were regularized.
17. In accordance with law, which is laid down by the Division
Bench, it is not open for the respondent no.2 to state on oath that
the petitioner herein has approached this Court with mala fide
intention. It is not in dispute that the selection process undertaken
by the respondent is quashed and set aside qua the district
panchayats at Banaskantha and Aravalli vide the judgment passed
in Letters Patent Appeal Nos.705 of 2023 and 1465 of 2023, the same
being contrary to the Rules and the advertisements issued from
time to time. The present petitioner and respondent nos.4 and 5
applied for the post of Gram Sevak (Class-III). The case of the
petitioner and the respondent nos.4 and 5 is also governed by the
advertisement issued in the year 2016 for the post of Gram Sevak
(Class-III) at district: Mehsana. The consequent advertisement
issued in the year 2021-23, is not of any consequence so far as the
case of the petitioner is concerned.
18. It is not in dispute that the higher qualification, which is
possessed by the respondent nos.4 and 5 herein, is such that the
same is not accepted by the Division Bench and the said
appointment is contrary to the Rules and the advertisement issued
in the year 2016. The cause raised in the present petition is such
that, in the opinion of this Court, the prayers, as prayed for, cannot
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
be brushed aside on the ground of delay. The cause raised in the
present petition is genuine wherein, the Division Bench in Letters
Patent Appeal No.705 of 2023, directed fresh selection list to be
prepared, in the year 2023. The private respondents are aware that
the qualifications, that they possess are such that they are more
than qualifying criteria as provided in the Rules as well as the
advertisement as also, the CAV judgment dated 10.11.2023
rendered by the Division Bench in Letters Patent Appeal No.705 of
2023. Neither the private respondent nos.4 and 5 nor the
respondent no.2 denied the aforesaid position of law. In fact, the
affidavit, which is filed by the respondent no.2 is contrary to the
position of law laid down by the Division Bench, though the same is
filed on 16.02.2025 and the judgment governing the field is also
placed on record at page 85.
19. In light of the aforesaid, in the opinion of this Court, the point
raised that the case of the petitioner would fall within the exception
wherein, the ratio laid down by the Division Bench that the Rule has
to be read as it is, governs the field and the said judgment can be
said to be in rem, which is applicable to the stakeholders.
20. In light of the aforesaid, it is apposite to refer to the ratio laid
down by the Hon'ble Apex Court in the case of Lt. Col. Suprita
Chandel vs. Union of India and Others reported in 2024 SCC OnLine
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
SC 3664. Paragraphs 6,7,8,9,10, 14, 15, 16, 17, 18, 19 and 20 of the
said judgment read as under:-
6. According to the appellant, Officers similarly
situated with the appellant who were also not
given an opportunity to appear for the clinical test
and interview, in view of the amendment, quickly
moved applications before the AFT, Principal Bench
in O.A. No. 111 of 2013 and batch of matters
raising various contentions and contended that
they have been wrongly deprived of availing the
third chance for no fault of theirs. Though the
amendments to the policy were upheld, the
Principal Bench of the AFT granted relief in the
following terms in the said batch of matters.
"35. The other contention of the learned counsel
for the petitioners is that the Government can
grant age relaxation in the given facts and
circumstances of the case. It is trite that the
Government has the power to relax the upper
age limit if it is found that operation of the rule
or policy has hardship on the persons working in
the Corps. Nothing has been shown that the
Government has no power to relax the upper age
limit. Now coming to the question as to whether
the operation of the policy has hardship, it would
be seen that an exception was provided for SSC
Officers for giving the benefit by extending the
upper age limit. It is also admitted by the
respondents in para-41 of their counter that one
time age relaxation in the upper age limit has
been granted in the case of an AMC officer who
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
had joined as SSC Officer prior to the issuance of
the impugned amendment. By deletion of para-
4(b) some of the SSC Officers became ineligible
for permanent absorption. The petitioners, who
were working in the Corps continuously,
expected to be given three chances to seek their
permanent absorption. However, due to
impugned amendment, they have been denied
these chances. Therefore, as one time exception,
the Government can relax the upper age limit in
respect of those petitioners who have become
ineligible on account of the impugned
amendment.
36. In view of the above discussions, all the four
petitions stand partly allowed with following
directions:--
(1) The impugned policy of 2013 is held to be
intra vires.
(2) A direction is issued to the respondents to
consider the case of the petitioners, who were
eligible in the year 2012 but became ineligible
in the year 2013 for grant of permanent
absorption on account of amendment of policy
after clubbing the selection of 2012 with 2013.
Their case shall be considered in terms of the
previous policy.
(3) A further direction is issued to the
respondents to grant one time age relaxation
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
in favour of the petitioners for seeking
permanent absorption as has been done in the
case of AMC officers who had joined as SSC
Officer prior to the issuance of the impugned
amendment. The entire exercise for
consideration of the petitioners for grant of
permanent commission shall be completed
within a period of two months from the date of
receipt of a copy of this order. The petitioners'
case thereafter shall be considered by the
ensuing Board for their permanent absorption
in the Corps."
7. According to the appellant, she could not join
the applicants therein in the litigation as she was
in her advance stage of pregnancy and while
posted at Bareilly, she proceeded on maternity
leave on 16.05.2013. The appellant delivered a
child on 01.07.2013.
8. Consequent to the order of the Principal
Bench, permanent commissions were granted to
officers who were eligible prior to the amendment
to avail a third chance but could not avail in view
of the amendment of 20.03.2013. The appellant
was not considered because she was not part of
the Original Application.
9. A representation submitted by the appellant
on 06.09.2014 did not yield any favorable result
and was rejected with the following endorsement
on 15.09.2014:--
"1. Ref advance copy of your application No DS-
12301/05/2004 dated 06 Sep 2014.
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
2. As per directions of MoD communicated vide
DGAFMS letter No. 12252/CC/AKJ/DGAFMS/LC
dated 12 Aug 2014, hon'ble Armed Forces Tribunal
(Principal Bench). New Delhi has granted 'one
time' age relaxation in the eligibility criteria 'only
to the petitioners'. Hon'ble AFT has further clarified
that this order will not form a precedence.
3. For your info please."
(Emphasis Supplied)
10. At the outset itself, we may say that the
phrase "Only to the Petitioners" in the order
rejecting the representation is patently erroneous.
While the AFT Principal Bench granted relief to the
petitioners, it did not prohibit the department from
considering similarly situated persons. Another
representation was disposed of on 9th November
2017, inter alia, on the primary ground that she did
not meet the criterion. In the meantime, the
appellant's services were further extended for a
period of 4 years on 31.10.2017.
14. It is a well settled principle of law that where
a citizen aggrieved by an action of the government
department has approached the court and
obtained a declaration of law in his/her favour,
others similarly situated ought to be extended the
benefit without the need for them to go to court.
[See Amrit Lal Berry v. Collector of Central Excise,
New Delhi, (1975) 4 SCC 714]
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
15. In K.I. Shephard v. Union of India, (1987) 4
SCC 431, this Court while reinforcing the above
principle held as under:--
"19. The writ petitions and the appeals must
succeed. We set aside the impugned judgments of
the Single Judge and Division Bench of the Kerala
High Court and direct that each of the three
transferee banks should take over the excluded
employees on the same terms and conditions of
employment under the respective banking
companies prior to amalgamation. The employees
would be entitled to the benefit of continuity of
service for all purposes including salary and perks
throughout the period. We leave it open to the
transferee banks to take such action as they
consider proper against these employees in
accordance with law. Some of the excluded
employees have not come to court. There is no
justification to penalise them for not having
litigated. They too shall be entitled to the same
benefits as the petitioners. ...."
(Emphasis Supplied)
16. No doubt, in exceptional cases where the
court has expressly prohibited the extension of the
benefit to those who have not approached the
court till then or in cases where a grievance in
personam is redressed, the matter may acquire a
different dimension, and the department may be
justified in denying the relief to an individual who
claims the extension of the benefit of the said
judgment.
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
17. That is not the situation here. In the
submissions too, the respondents have not been
able to point out any valid justification as to how
the applicants who obtained the benefit from the
AFT, Principal Bench in OA No. 111 of 2013 and
batch are not identically situated with the
appellant. Like the applicants who succeeded, the
appellant was also ripe for the third chance before
the amended para 4(a) of AI No. 37 of 1978 was
introduced on 20.03.2013. The Principal Bench of
the AFT in OA No. 111 of 2013 after clearly holding
that the applicants therein were denied the third
chance directed consideration of their cases for
permanent absorption by granting one-time age
relaxation by considering them under the
unamended policy.
18. The respondent authorities on their own should
have extended the benefit of the judgment of AFT,
Principal Bench in OA No. 111 of 2013 and batch to
the appellant. To illustrate, take the case of the
valiant Indian soldiers bravely guarding the
frontiers at Siachen or in other difficult terrain.
Thoughts on conditions of service and job
perquisites will be last in their mind. Will it be fair
to tell them that they will not be given relief even if
they are similarly situated, since the judgment
they seek to rely on, was passed in the case of
certain applicants alone who moved the court? We
think that would be a very unfair scenario.
Accepting the stand of the respondents in this case
would result in this Court putting its imprimatur on
an unreasonable stand adopted by the authorities.
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
19. The stand of the Department relying on the
judgment of this Court in State of Maharashtra v.
Chandrakant Anant Kulkarni, (1981) 4 SCC 130 to
contend that mere reduction in chance of
consideration did not result in deprivation of any
right does not appeal to us. The appellant's case is
founded on the principle of discrimination. What is
sauce for the goose ought to be sauce for the
gander. If the applicants in O.A. No. 111 of 2013
whom we find are identically situated to the
appellant were found to be eligible to be given a
third chance for promotion, because they acquired
eligibility before the amendment to AI No. 37 of
1978 on 20.03.2013, we find no reason why the
appellant should not be treated alike.
20. The order dated 13.03.2014 in the application
for clarification of the AFT, Principal Bench, order
of 22.01.2014 and the order dated 19.05.2014 in
the review relied upon in the counter affidavit do
not in any manner dilute the case of the appellant
herein. In fact, the order dated 13.03.2014 fully
supports the appellant since it extended the
benefit to those persons who acquired the
eligibility in 2013. As far as the order in review
dated 19.05.2014 directing that there would be no
dilution in the laid down criterion and the further
direction that the order in review shall not form a
precedent does not imply that the main order of
22.01.2014 of the Principal Bench, AFT, should not
be extended to similarly situated individuals like
the appellant, who has been knocking the doors for
relief since September, 2014."
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
21. It is apposite to refer to the ratio laid down by the Hon'ble Apex
Court in the case of Union of India and Ors. Etc. vs. Prohlad Guha Etc.,
reported in 2024 AIR SC 3558. Paragraph 14 of the said judgment reads as
under.
14. The above discussion reiterates that fraud
vitiates all proceedings. Compassionate
appointment is granted to those persons whose
families are left deeply troubled or destitute by the
primary breadwinner either having been
incapacitated or having passed away. So when
persons seeking appointment on such ground
attempt to falsely establish their eligibility, as has
been done in this case, such positions cannot be
allowed to be retained. So far as the submission of
non-compliance of the Rules is concerned, the
judgment in Vishwanatha Pillai (supra) answers the
question. The respondent-employees in the
present case, having obtained their position by
fraud, would not be considered to be holding a
post for the purpose of the protections under the
Constitution. We are supported in this conclusion
by the observations made in Devendra Kumar v.
State of Uttaranchal. (2013) 9 SCC 363 In
paragraph 25 thereof it was observed -
"25. More so, if the initial action is not in
consonance with law, the subsequent conduct of a
party cannot sanctify the same. Sublato
fundamento cadit opus -- a foundation being
removed, the superstructure falls. A person having
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
done wrong cannot take advantage of his own
wrong and plead bar of any law to frustrate the
lawful trial by a competent court. In such a case
the legal maxim nullus commodum capere potest
de injuria sua propria applies. The persons
violating the law cannot be permitted to urge that
their offence cannot be subjected to inquiry, trial
or investigation. (Vide Union of India v. Major
General Madan Lal Yadav [(1996) 4 SCC 127 : 1996
SCC (Cri) 592 : AIR 1996 SC 1340] and Lily Thomas
v. Union of India [(2000) 6 SCC 224 : 2000 SCC
(Cri) 1056] .) Nor can a person claim any right
arising out of his own wrongdoing (jus ex injuria
non oritur).
(Emphasis supplied)
22. It is also apposite to deal with the judgment of the Hon'ble Apex
Court in the case of State Of Uttar Pradesh And Others vs. Arvind Kumar
Srivastava And Others, reported in (2015) 1 SCC 347 wherein, the Hon'ble
Apex Court in para 22, held as under:-
"22. The legal principles which emerge from the
reading of the aforesaid judgments, cited both by
the appellants as well as the respondents, can be
summed up as under.
22.1. The normal rule is that when a particular set
of employees is given relief by the court, all other
identically situated persons need to be treated
alike by extending that benefit. Not doing so would
amount to discrimination and would be violative of
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
Article 14 of the Constitution of India. This principle
needs to be applied in service matters more
emphatically as the service jurisprudence evolved
by this Court from time to time postulates that all
similarly situated persons should be treated
similarly. Therefore, the normal rule would be that
merely because other similarly situated persons
did not approach the Court earlier, they are not to
be treated differently.
22.2. However, this principle is subject to well-
recognised exceptions in the form of laches and
delays as well as acquiescence. Those persons who
did not challenge the wrongful action in their cases
and acquiesced into the same and woke up after
long delay only because of the reason that their
counterparts who had approached the court earlier
in time succeeded in their efforts, then such
employees cannot claim that the benefit of the
judgment rendered in the case of similarly situated
persons be extended to them. They would be
treated as fence-sitters and laches and delays,
and/or the acquiescence, would be a valid ground
to dismiss their claim.
22.3. However, this exception may not apply in
those cases where the judgment pronounced by
the court was judgment in rem with intention to
give benefit to all similarly situated persons,
whether they approached the court or not. With
such a pronouncement the obligation is cast upon
the authorities to itself extend the benefit thereof
to all similarly situated persons. Such a situation
can occur when the subject-matter of the decision
touches upon the policy matters, like scheme of
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
regularisation and the like (see K.C. Sharma v.
Union of India [K.C. Sharma v. Union of India,
(1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the
other hand, if the judgment of the court was in
personam holding that benefit of the said
judgment shall accrue to the parties before the
court and such an intention is stated expressly in
the judgment or it can be impliedly found out from
the tenor and language of the judgment, those
who want to get the benefit of the said judgment
extended to them shall have to satisfy that their
petition does not suffer from either laches and
delays or acquiescence."
23. In light of the aforesaid judgment also, a normal Rule is that
when a particular set of employees is given relief by the Court,
identically placed persons should also be treated alike by extending
the same benefit. The said principle is emphatically held to apply to
the service matters, as service jurisprudence evolved by the Court
from time to time, postulates that all the similarly situated persons
should be treated similarly.
24. In the opinion of this Court, the contention raised by the
learned advocate for the respondents that the petitioner is
acquiesced of the right to approach this Court on the ground of
delay and laches, would not apply in the facts of the present case
wherein, the Division Bench passed the order qua the similarly
situated persons, holding that the Rule and the advertisement are to
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
be applied as it is and it was directed that the fresh merit list be
prepared. The Hon'ble Apex Court also dismissed the appeals in the
year 2024. In fact, it is the respondent nos.4 and 5, who are aware
that they have higher qualification, which is not in accordance with
the Rules as also, the advertisement. In spite of the orders passed
by the Division Bench and the Hon'ble Apex Court, the respondent
no.2 has failed to act in accordance with the position of law, as laid
down by the Division Bench.
25. Further, in judgment in the case of State of Uttar Pradesh And
Others vs. Arvind Kumar Srivastava And Others, reported in (2015) 1
SCC 347, which is relied upon by Mr.N.K. Majmudar, learned
advocate, the said appointment stood cancelled and the Court was
approached after a delay of more than 27 years. Under such
circumstances, the Hon'ble Apex Court held that there was an
unexplained delay of approaching the Court after 27 years when,
the most of the respondents would be 50 years of age or above,
which is contrary to the law laid down by the Division Bench and the
Hon'ble Apex Court.
26. At this stage, this Court deems it fit to refer to the ratio laid
down by the Hon'ble Apex Court in the case of Anoop M. and others
vs. Gireeshkumar T.M. and others reported in (2025)1 SCC 729
wherein, the Hon'ble Apex Court has dealt with the eligibility
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
criteria/conditions and possessing of higher qualification than
stipulated for the post wherein, dealing with the said issue, in
paragraphs 18 to 36, it was held as under:-
"18. Pertinently, insofar as the post of LDC is
concerned, the 2011 Rules do not speak of a
qualification "equivalent" to a Certificate in Data Entry
and Office Automation from Lal Bahadur Shastri Centre
for Science and Technology, Institute of Human
Resources Development, also being eligible. What is
stated therein is that a Certificate in Data Entry and
Office Automation from a similar/equivalent institution,
approved by the Government, would be accepted as an
eligible qualification. The equivalence is, thus, not of
the qualification itself but of the institution from which
the said Certificate in Data Entry and Office Automation
is obtained.
19. Significantly, where they so intend, the 2011
Rules specifically provide for "equivalent qualifications"
being eligible in relation to particular posts. For
instance, for the post of Legal Assistant in "Wing II --
Ministerial Service" a Degree in Law from a University
in Kerala or from a University recognised by any of the
Universities in Kerala is the prescribed qualification, but
its equivalent is also acceptable. Similarly, for the post
of Confidential Assistant Grade II, equivalent
qualifications to those prescribed are acceptable. So is
the case with the post of Lower Division Typist, where
equivalent qualifications are explicitly shown to be
acceptable.
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
20. In effect, the failure to mention an "equivalent
qualification" being acceptable for the post of LDC
clearly manifests the deliberate design and intent of
the 2011 Rules to limit the equivalence in that context
only to the institution from which the Certificate in Data
Entry and Office Automation is obtained and not to
enlarge the eligibility by encompassing equivalent
qualifications also.
21. Given the aforestated rule position in the 2011
Rules and the verbatim reproduction of the same in the
Notification dated 16-7-2012, it is clear and certain that
a qualification equivalent to a Certificate in Data Entry
and Office Automation from Lal Bahadur Shastri Centre
for Science and Technology, Institute of Human
Resource Development, is not acceptable but a
Certificate in Data Entry and Office Automation from a
government approved similar/equivalent institution
would be valid. Without the prescription of an
equivalent qualification being recognised, the first part
of Rule 10(a)(ii) of the 1958 Rules would not be
attracted, as it speaks of applicability only in cases
where acceptance of equivalent qualifications is
provided for in the Special Rules.
22. On the other hand, the latter part of Rule 10(a)(ii)
speaks of qualifications that presuppose acquisition of
the prescribed lower qualification being treated as
sufficient. It is the case of the appellants before us that
they would fall in this category as they possess either a
Diploma in Computer Applications or other higher
qualifications, such as a Diploma in Computer
Engineering/Diploma in Data Entry and Console
Operation/MCA/MSc in Software Engineering, etc.
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
23. The Secretary of KPSC filed an additional affidavit
on 20-4-2024 before us, wherein he brazenly stated
that the submission before the High Court earlier was
never that qualifications such as DCA from all
institutions would be rejected. This statement is
incorrect on the face of it as KPSC had categorically
stated, both in its review petition as well as the grounds
of appeal in the earlier round, that DCA qualification
would not be accepted by it as a qualification for
selection to the notified post. It had also asserted that it
examined the issue in detail and decided that
applications of persons with DCA qualification could not
be accepted.
24. KPSC then filed an additional affidavit on 2-9-
2024. Therein, it was stated by its Secretary that
recognition of DCA as a higher qualification was not a
one-time isolated decision but a well-considered
practice that KPSC consistently applied in various
selections over several years. Instances were given of
KPSC accepting DCA as a higher qualification in
selections made during the years 2017, 2018, 2019,
2023 and 2024. He stated that this practice was
consistently implemented by KPSC even before
issuance of the subject ranked list. He pointed out that
this "equivalence" principle had been applied to
selections made for a variety of posts, such as Data
Entry Operator, Typist Grade II, Lower Division Clerk,
Computer Operator and Confidential Assistant Grade II.
According to him, while finalising the selections for the
LDC posts, DCA/higher qualifications from institutions
which were not recognised by the Government were
rejected.
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
25. The Secretary, KPSC furnished the list of
unrecognised institutions and said that about 120
institutions, offering DCA/PGDCA, were recognised by
the Government. He gave the names of fifteen such
institutions. He concluded by stating that 590
applications from candidates with DCA/higher
qualifications from unrecognised institutions had been
rejected, on the one hand, but more than 175
applications from candidates with DCA/higher
qualifications from recognised institutions had been
accepted. Reference was made to internal
correspondence dated 13-6-2017 in relation to the
selections for the post of Data Entry Operator in District
Cooperative Banks, wherein the higher qualifications,
which were to be accepted in lieu of a Certificate in
Data Entry, were furnished. Reference was also made
to File No. DR V(1)1223/13/GW, pertaining to the
abovementioned post of Data Entry Operator, adverting
to the acceptability of 38 qualifications and 8
experience certificates.
26. Notwithstanding this change in its approach, there
is no getting over the fact that in the earlier round of
this litigation, KPSC was uncompromising in its refusal
to consider DCA as an eligible qualification for
appointment to the post of LDC in the Kerala Water
Authority. So much so that it felt aggrieved by the
direction of a learned Judge to the contrary and went to
the extent of filing a review petition and also a writ
appeal thereafter. The Memorandum of Grounds filed
by KPSC in the said writ appeal clearly demonstrated its
adamant stand that DCA was not a qualification to be
considered eligible for appointment to the subject post.
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
It is apparent that KPSC did a volte-face thereafter, be
it for whatever reason, and now seeks to adopt a stand
that DCA should be treated as a higher qualification
which presupposes the lesser qualification of the
prescribed Certificate in Data Entry and Office
Automation.
27. However, no material has been placed before us
to demonstrate that KPSC undertook any exercise to
study the curriculum of each of the courses in question
to assess and decide whether any of the so-called
"higher qualifications" can be said to presuppose
acquisition of the lesser qualification prescribed for the
post. The qualification prescribed, being a Certificate in
Data Entry and Office Automation from the named
Institute or from a similar/equivalent government
approved institution, it was necessary for KPSC to
ascertain the number of hours of actual data entry and
office automation that is put in by a candidate who
possesses the so-called higher qualification to decide
whether he/she can be treated as superior to a
candidate with the prescribed qualification. Without
undertaking this exercise, KPSC cannot straightaway
assume that, merely because the higher qualification is
a Degree/Diploma in a computer-related subject, a
candidate possessing the same would have more
experience and expertise in data entry and office
automation than a candidate with the prescribed
Certificate in Data Entry and Office Automation.
28. Useful reference in this regard may be made to
the judgment of this Court in Ajith K. v. Aneesh K.S.
[Ajith K. v. Aneesh K.S., (2019) 17 SCC 147] That was
also a case from the State of Kerala and involved the
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
post of Junior Health Inspector Grade II in Municipal
Common Service. Minimum qualifications were
prescribed for the post in the alternative. While so,
candidates possessing a Diploma in Health Inspector
Course, a two-year course which was not included in
the prescribed qualifications, also aspired for selection.
In this context, this Court considered whether the said
Diploma could be treated as a higher qualification
which presupposed acquisition of the prescribed lower
qualification. Relevantly, KPSC did not undertake any
exercise to come to a sustainable finding that
acquisition of the Diploma would presuppose
acquisition of the prescribed lesser qualification,
ultimately leading to this Court rejecting such a claim.
29. Similar is the position presently as KPSC, except
for furnishing data of the institutions offering DCA that
were treated as eligible due to government recognition,
did not undertake an independent assessment of the
higher qualifications to determine whether candidates
who possessed those qualifications would have put in
equivalent or more number of hours in data entry and
office automation than a candidate who underwent a
three months course to obtain the prescribed
Certificate in Data Entry and Office Automation.
30. The decision of this Court in Jyoti K.K.v.Kerala
Public Service Commission [Jyoti K.K.v.Kerala Public
Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC
(L&S) 664] is distinguishable on facts, as that was a
case where the higher qualification clearly presupposed
acquisition of the lesser qualification. The prescribed
qualification for the post in question in that case was a
Diploma/Certificate in Electrical Engineering, whereas
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
the higher qualifications which were under
consideration were BTech/BE Degrees in Electrical
Engineering. The same cannot be said to be the case
presently, as every computer-related Degree/Diploma
course cannot be assumed to impart similar experience
or expertise in data entry and office automation as the
prescribed Certificate course.
31. In Sheo Shyam v. State of U.P. [Sheo Shyam v.
State of U.P., (2005) 10 SCC 314 : 2005 SCC (L&S)
579] , this Court considered a recruitment process
undertaken by the Union Public Service Commission.
There was lack of consensus between the Commission
and the State Government and the career of eleven
candidates stood at risk owing to such inconsistent and
varying stands adopted by the State Government and
the Commission at different stages for different
purposes. In this context, this Court observed that,
though there cannot be any estoppel in law, yet a
statutory body like the Commission could not blow hot
and cold in the same breath, as there has to be
consistency in its view. To rule out unfortunate
situations like the one in that case recurring again, this
Court cautioned the State Government and the
Commission to be more vigilant and constructive in
their approach. This Court observed that, when dealing
with careers of a large number of candidates, their
stands have to be consistent and not varied to avoid
giving room for unsavoury suspicions and to ensure
that the system works more transparently.
32. Presently also, it is manifest that it is KPSC, with
its vacillating and dithering stance, that is largely
responsible for this long pending litigation, impacting
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
the lives, hopes and aspirations of nearly twelve
hundred candidates. KPSC, as already noted supra, was
steadfast in its stand in the earlier round that DCA was
not a qualification to be considered eligible for
appointment to the subject post of LDC in the Kerala
Water Authority. Thereafter, the change in its stance,
without any foundational inquiry to determine the
superiority of the so-called higher qualifications over
the prescribed qualification, leaves this Court with no
doubt that it was a purely whimsical and arbitrary
exercise of discretion on its part without actual
application of mind as per required parameters.
33. Recently, in Sivanandan C.T. v. High Court of
Kerala, a Constitution Bench held thus : (SCC pp. 821-
22, para 44)
"44. In a constitutional system rooted in the rule
of law, the discretion available with public
authorities is confined within clearly defined limits.
The primary principle underpinning the concept of
rule of law is consistency and predictability in
decision-making. A decision of a public authority
taken without any basis in principle or rule is
unpredictable and is, therefore, arbitrary and
antithetical to the rule of law. [S.G. Jaisinghani v.
Union of India, (1967) 65 ITR 34 : 1967 SCC
OnLine SC 6 : AIR 1967 SC 1427] The rule of law
promotes fairness by stabilising the expectations
of citizens from public authorities. This was also
considered in a recent decision of this Court in
SEBI v. Sunil Krishna Khaitan [SEBI v. Sunil Krishna
Khaitan, (2023) 2 SCC 643 : (2022) 234 Comp Cas
525] , wherein it was observed that regularity and
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
predictability are hallmarks of good regulation and
governance. [SEBI v. Sunil Krishna Khaitan, (2023)
2 SCC 643 : (2022) 234 Comp Cas 525] This Court
held that certainty and consistency are important
facets of fairness in action and non-arbitrariness :
(Sunil Krishna Khaitan case [SEBI v. Sunil Krishna
Khaitan, (2023) 2 SCC 643 : (2022) 234 Comp Cas
525] , SCC pp. 678-79, para 59)
'59. ... Any good regulatory system must
promote and adhere to principle of certainty and
consistency, providing assurance to the individual
as to the consequence of transactions forming
part of his daily affairs. [Union of India v. Raghubir
Singh, (1989) 2 SCC 754 : (1989) 66 Comp Cas
466. Also see, The Nature of the Judicial Process,
Benjamin N. Cardozo, p. 33:"I am not to mar the
symmetry of the legal structure by the
introduction of inconsistencies and irrelevancies
and artificial exceptions unless for some sufficient
reason, which will commonly be some
consideration of history or custom or policy or
justice. Lacking such a reason, I must be logical
just as I must be impartial, and upon like grounds.
It will not do to decide the same question one way
between one set of litigants and the opposite way
between another."] ... This does not mean that the
regulator/authorities cannot deviate from the past
practice, albeit any such deviation or change must
be predicated on greater public interest or harm.
This is the mandate of Article 14 of the
Constitution of India which requires fairness in
action by the State, and non-arbitrariness in
essence and substance. Therefore, to examine the
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
question of inconsistency, the analysis is to
ascertain the need and functional value of the
change, as consistency is a matter of operational
effectiveness.' "
(emphasis in original)
34. Earlier, in State of Bihar v. Shyama Nandan
Mishra, this Court observed that the State cannot be
allowed to change course and belie legitimate
expectation as regularity, predictability, certainty and
fairness are necessary concomitants of governmental
action.
35. We, therefore, have no hesitation in placing the
blame for this entire imbroglio on KPSC as it laid the
genesis for this litigation owing to its changing stances
at different points of time. A State instrumentality
seized of the solemn responsibility of making selections
to public services must maintain a high standard of
probity and transparency and is not expected to remain
nebulous as to its norms or resort to falsehoods before
the Court, contrary to what it had stated in its earlier
sworn affidavits. We can only hope that the Kerala
Public Service Commission learns from this experience
and desists, at least in future, from trifling with the
lives, hopes and aspirations of candidates who seek
public employment.
36. On the above analysis, we hold that no error was
committed by the Division Bench of the Kerala High
Court in confirming the view taken by the learned
Judge, non-suiting candidates with DCA/higher
qualifications who aspired for selection to the post of
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
Lower Division Clerk in the Kerala Water Authority."
27. At this stage, this Court deems it fit to refer to the ratio laid
down by the Hon'ble Apex Court in the case of Tej Prakash Pathak
and others vs. Rajasthan High Court and others reported in (2025) 2
SCC 1 wherein, the Hon'ble Apex Court has held that the process of
recruitment begins with issuance of advertisement and ends up
before filling of notified vacancies. It consists of various steps like
inviting application, scrutiny of application, rejection of defective
application or elimination of ineligible candidates, conducing the
examinations, calling for interview or viva-voce and preparation of
the list of successful candidates for appointment. The Hon'ble Apex
Court has held that the eligibility criteria for being placed in the
select list, notified at commencement of the recruitment process,
cannot be changed midway through the recruitment process unless
the extant Rules so permit, or the advertisement, which is not
contrary to the extant Rules, so permit. If such change is
permissible under the extant Rules or the advertisement, the
change would have to meet the requirement of Article 14 of the
Constitution and satisfy the test of non-arbitrariness. It is apposite
to refer to paragraph 65 of the said judgment, which reads as
under:-
"65. We, therefore, answer the reference in the
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
following terms:
65.1. Recruitment process commences from the
issuance of the advertisement calling for applications
and ends with filling up of vacancies;
65.2. Eligibility criteria for being placed in the
select list, notified at the commencement of the
recruitment process, cannot be changed midway
through the recruitment process unless the extant
Rules so permit, or the advertisement, which is not
contrary to the extant Rules, so permit. Even if such
change is permissible under the extant Rules or the
advertisement, the change would have to meet the
requirement of Article 14 of the Constitution and satisfy
the test of non-arbitrariness;
65.3. The decision in K. Manjusree lays down good
law and is not in conflict with the decision in Subash
Chander Marwaha. Subash Chander Marwaha deals
with the right to be appointed from the select list
whereas K. Manjusree deals with the right to be placed
in the select list. The two cases therefore deal with
altogether different issues;
65.4. Recruiting bodies, subject to the extant
Rules, may devise appropriate procedure for bringing
the recruitment process to its logical end provided the
procedure so adopted is transparent, non-
discriminatory/non-arbitrary and has a rational nexus to
the object sought to be achieved;
65.5. Extant Rules having statutory force are
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
binding on the recruiting body both in terms of
procedure and eligibility. However, where the rules are
non-existent, or silent, administrative instructions may
fill in the gaps;
65.6. Placement in the select list gives no
indefeasible right to appointment. The State or its
instrumentality for bona fide reasons may choose not
to fill up the vacancies. However, if vacancies exist, the
State or its instrumentality cannot arbitrarily deny
appointment to a person within the zone of
consideration in the select list."
28. It is also apposite to refer to the ratio laid down by the Hon'ble
Apex Court in the case of Whirlpool Corporation vs. Registrar of
Trademarks, Mumbai and others, reported in (1998) 8 SCC 1.
Paragraphs 14 and 15 of the said decision, read as under:-
"14. The power to issue prerogative writs under Article
226 of the Constitution is plenary in nature and is not
limited by any other provision of the Constitution. This
power can be exercised by the High Court not only for
issuing writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari for the
enforcement of any of the Fundamental Rights contained
in Part III of the Constitution but also for "any other
purpose".
15. Under Article 226 of the Constitution, the High Court,
having regard to the facts of the case, has a discretion to
entertain or not to entertain a writ petition. But the High
Court has imposed upon itself certain restrictions one of
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
which is that if an effective and efficacious remedy is
available, the High Court would not normally exercise its
jurisdiction. But the alternative remedy has been
consistently held by this Court not to operate as a bar in
at least three contingencies, namely, where the writ
petition has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation of
the principle of natural justice or where the order or
proceedings are wholly without jurisdiction or the vires of
an Act is challenged. There is a plethora of case-law on
this point but to cut down this circle of forensic whirlpool,
we would rely on some old decisions of the evolutionary
era of the constitutional law as they still hold the field."
29. The respondent no.2, in paragraph 12 of the affidavit-in-reply
submitted that the petitioner has failed to produce the final
appointment list, which is a crucial document to substantiate the
claim of the petitioner. In absence of such material evidence, the
allegations made by the petitioner are speculative, vague and
devoid of any legal merit. Considering the aforesaid stance taken by
the respondent no.2, if the final merit list is published by the
respondent no.2, the onus is on the respondent no.2 to place on
record the final merit list to oppose the contentions raised by the
petitioner herein in the present petition. The respondent no.2 also
deemed it fit not to deal with the allegations of fraud, as alleged by
the petitioner, in the affidavit-in-reply however, opposed the same
on the ground of delay and laches.
30. This Court has also considered the affidavit-in-reply filed by
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
the respondent no.2 and the submissions advanced by Mr.Premal
Joshi, learned advocate appearing for the respondent no.3. Mr.Joshi,
learned advocate has taken this Court to the relevant documents
produced on record. It emerges that the entire exercise from
issuance of the advertisement to the preparation of the final list, is
undertaken by the respondent no.2 herein. This Court has also
perused the advertisement, which is duly produced at 20 -
Annexure-A, provisional list - page 34, final list - page 44, revised
final list - page 56. It emerges that the aforesaid exercise is
undertaken by the respondent no.2 however, the affidavit-in-reply is
contrary to the record, having stated on oath that the entire
exercise, right from issuance of advertisement to the preparation of
the final list, is undertaken by the respondent no.3 herein. As stated
in paragraph 10 of the reply that the respondent no.2 is the only
authority to directly provide the appointment letters to the selected
candidates by the respondent no.3 herein. The last communication
from the respondent no.3 that the selection and appointment of the
candidates are finalized by the respondent no.2. The aforesaid
affidavit is contrary to the record. No effort is made by the
respondent no.2 even to correct such affidavit. This is a fit case to
impose cost upon the respondent no.2 for filing a false affidavit,
misleading the Court and interpreting the position of law as laid
down by the Division Bench. Accordingly, the cost of Rs.25,000/- is
imposed upon the respondent no.2, which is directed to be
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
deposited with the Gujarat State Legal Services Authority within a
period of one week from the date of receipt of this order.
31. Considering the contention raised by the learned advocate for
the respondent no.2 that the petitioner has failed to produce on
record the final merit list, which is not on record, the respondent -
authority to act in accordance with the law laid down by the Division
Bench in said Letters Patent Appeal No.705 of 2023, as held by the
Division Bench that the petitioners therein are displaced from the
provisional merit list in view of the inclusion of the private
respondents, who are held to be ineligible, holding the degree in
B.Sc. Agriculture wherein, such candidates, are held to be ineligible,
possessing the degree higher than that prescribed in the
advertisement.
32. For the foregoing reasons and considering the ratio laid down
by the Hon'ble Apex Court and the Division Bench, as referred
above, this is a fit case to exercise extraordinary jurisdiction under
Article 226 of the Constitution of India.
33. The present petition is allowed. The respondent no.2 to
prepare a fresh select list in accordance with the position of law laid
down by the Division Bench in Letters Patent Appeal No.705 of 2023
within a period of two weeks from the date of receipt of this order,
in light of the fact that the petitioners in Special Civil Application
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
No.15597 of 2017 were holding the same qualification of BRS from a
recognized university with respect to the districts i.e. Banaskantha
and Aravalli and the present petitioner is seeking appointment to
the post of Gram Sevak (Class-III) from district: Mehsana, which is
also not in dispute. Further, the petitioner is having qualification of
Bachelor in Rural Studies, which is a valid qualification for the post
of Gram Sevak (Class-III) whereas, the degree of respondent nos.4
and 5 is B.Sc. Agriculture, which though, is a higher qualification, is
not the qualifying criteria under the Rules as well as the
advertisement. The aforesaid is the position of law as held by the
Division Bench in the said Letters Patent Appeal. The petitioner or
the other eligible candidates would be entitled to be considered for
such appointment. The aforesaid exercise be undertaken in terms of
the following directions:-
(i) The competent authority of the respondents is
directed to prepare a fresh select/merit list.
(ii) The authority shall shall not include the names
of private respondents in the fresh select list to be
prepared as above.
(iii) The fresh final select list will be prepared by
including the petitioner, however after excluding
the private respondents, who are not eligible.
(iii)(a) If the petitioner herein stand on merit in the
fresh select list, to be operated as above, the
petitioner shall be given appointment in order of
NEUTRAL CITATION
C/SCA/12862/2024 JUDGMENT DATED: 27/02/2025
undefined
merit.
(iv) The final merit list shall be accordingly
operated category-wise for the purpose of giving
appointment."
34. Rule is made absolute to the aforesaid extent.
35. After dictation of the present Judgment, Mr.Shivam Majmudar,
learned advocate requests to stay the implementation of the
present judgment for a period of four weeks. The said request is
declined.
(VAIBHAVI D. NANAVATI,J)
Hitesh
