Madhya Pradesh High Court

Ku. Rashmi Portey vs The State Of Madhya Pradesh on 13 May, 2022

Author: Vivek Agarwal

     IN THE HIGH COURT OF MADHYA PRADESH
                  AT JABALPUR
                        BEFORE
        HON'BLE SHRI JUSTICE VIVEK AGARWAL
                 ON THE 13th OF MAY, 2022

          WRIT PETITION No. 16511 of 2019
Between:-


 KU. RASHMI PORTEY D/O K.N. PORTEY OCCUPATION:
 UNEMPLOYEE KANCH GHAR, NEAR, POLICE LINE,
 JABALPUR (MADHYA PRADESH)



....PETITIONER


(BY SHRI KEDARNATH SINGH PURTEY, ADVOCATE FOR THE
PETITIONER)


AND

1.  THE STATE OF MADHYA PRADESH SECRETARY
VYAPAM DISTT. BHOPAL (MP) (MADHYA PRADESH)

2.  SECRETARY LOKAYUKT ORGANISATION DISTT-
BHOPAL (MADHYA PRADESH)

3.  SECRETARY       GENERAL            ADMINISTRATION
DEPARTMENT J.D.A.10, VALLABH          BHAWAN, BHOPAL
(MADHYA PRADESH)

4.   SECRETARY    MAHARSHI      MAHESH      YOGI   VAIDIK
                               2

VISHWAVIDYALAY LAMTI              VIJAYNAGAR,     JABALPUR
(MADHYA PRADESH)


.....RESPONDENTS

(BY SHRI GIRISH KEKRE, GOVERNMENT ADVOCATE FOR
THE STATE)
(BY SHRI VIJAYENDRA SINGH CHOUDHARY, ADVOCATE
FOR     PROFESSIONAL      EXAMINATION   BOARD/
RESPONDENT NO.1)
(BY SHRI ROHIT RAGHUWANSHI, ADVOCATE FOR
RESPONDENT NO.2)
(BY   SHRI   AVINASH    ZARGAR, ADVOCATE   FOR
RESPONDENT NO.4)


      This petition coming on for hearing this day, the

court passed the following:

                          ORDER

This writ petition is filed being aggrieved of the

decision taken by respondent No.2, not to accept

petitioner's candidature on the post of Stenographer, as

petitioner did not fulfill the required qualification of speed

of 100 words per minute in Hindi Stenography as was the

requirement in terms of the advertisement available on

page-30 of the recruitment brochure contained in

Annexure-P/4.

2. Petitioner's submission is that petition belongs to

Scheduled Tribe Category. She being the most meritorious

candidate in her category, was wrongly sponsored by the

Professional Examination Board to the Office of Lokayukt

whereas, she should have been sponsored to a place where

vacancy for English Stenographer was available and if that

would have been done, petitioner would have secured

employment. Petitioner's contention is that though

petitioner is more meritorious then other Scheduled Tribe

Candidates and she was eligible for appointment as a

Stenographer but due to incorrect recommendation,

petitioner has been denied appointment.

3. Shri Vijayendra Singh Choudhary, counsel for

respondent No.1 in his turn submits that petitioner had

filled up her choices as is evident from Annexure-1 in

which she has given her first choice for the post of

Stenographer in the Office of Lokayukt then second choice

as Assistant Grade-III in the Office of Lokayukt, third

choice as Assistant Grade Hindi in the Office of

Commissioner, Higher Education and fourth choice as

Stenographer English in the Department of Law and

Legislative Affairs and so on. It is submitted that in front

of each of her choice, as have been mentioned in Ex.P-1,

requisite qualification is mentioned. For the post of

Stenographer in the Office of Lokayukt, it is clearly

mentioned that a candidate should have 100 words per

minute speed in Hindi Stenography from an Institute

recognized by General Administration Department.

4. It is submitted that petitioner had submitted her

candidature in July, 2018 for which last date was

06.07.2018. Petitioner admittedly did not possess

qualification of Hindi Stenography on the date of filling up

of the form and, therefore, it was for the petitioner to have

filled up choices where she fulfilled the requirements of

the prescribed qualification.

5. It is submitted that petitioner has enclosed

certificate of Hindi Stenography from an Institute which

was issued in her favour on 31.07.2019 i.e. much after the

cut-off date and, therefore, that certificate cannot be

entertained by the authorities.

6. Shri Rohit Raghuwanshi, counsel for respondent

No.2 in his turn supports the argument put forth by Shri

Vijayendra Singh and submits that on internal page 28 of

the brochure Annexure-P/4 there is a specific mention of

requirement of a Hindi Stenographer having speed of 100

words per minute and, therefore, there was no scope for

confusion in the minds of the candidates applying for

different post as has been sought to be made out by the

learned counsel for the petitioner.

7. Shri Girish Kekre, learned Government Advocate

though has been very supportive and submits that if there

is any vacancy then candidature of the petitioner can be

considered, subject to Professional Examination Board

sponsoring name of that candidate to the concerned

Department. However, Shri Vijayendra Singh has serious

objection to such submission.

8. As far as Shri Avinash Zargar, learned counsel for

respondent No.4 is concerned, he is there to only inform

this Court that the certificate which has been issued in

favour of the petitioner by respondent No.4 is genuine and

correct and its genuineness may not be disputed.

9. After hearing learned counsel for the parties and

going through the record, firstly genuineness of any of the

certificates of the petitioner is not in dispute, therefore,

that being not the bone of contention between the parties

need not be addressed by this Court in any further detail.

10. As far as petitioner's contention is concerned, it is

evident from the brochure that post of Stenographer

Grade-III has a prescription of Educational Qualification

namely a candidate should be Higher Secondary

Examination Pass (10+2), should have a post-graduate

diploma/ certificate in Computer Application from a

recognized University then should possess a CPCT

certificate issued by MAP-IT and, thereafter, fourth

condition is that should possess Hindi Stenography

certificate with 100 words per minute speed. Admittedly,

petitioner did not possess fourth requirement of having a

certificate from a recognized institution showing that she

has proficiency of 100 words per minute or more in Hindi

Stenography. It is settled principle of law that qualification

is to be seen on the last date of filing of the application

form which was admittedly 06.07.2018, in the present

case.

11. It is petitioner's admission that she does not possess

Hindi typewriting certificate, as is evident from Ex.P-8

filed by the petitioner in which she has specifically

mentioned that when she visited the Office of Secretary

Lokayukt on 25.02.2019 then she came to know the fact

that there is requirement of Hindi Stenographer in that

Office. She admitted that she has obtained merit position

in English Stenography.

12. It is further mentioned that there is no information

in the letter of Lokayukt Establishment about Hindi

Stenography, as a result, she gave an undertaking to grant

her three months' time to pass Hindi Stenography

Examination.

13. In view of aforesaid admission, it is evident that

petitioner while filling the form Ex.P-1 though having

knowledge of the fact that the requirement of Lokayukt

Office is that of Hindi Stenographer and she was required

to possess that qualification but instead of foregoing that

option as petitioner did not possess necessary qualification

for that post, petitioner filled that option as her first option

and as the qualifications of the petitioner did not match

with that prescribed in the brochure her candidature has

been rejected.

14. Shri Vijayendra Singh, learned counsel for

respondent No.1 has placed reliance on judgment of

Supreme Court in the case of Madhya Pradesh Public

Service Commission Vs. Manish Bakawale and Others,

2021 SCC Online SC 1278 wherein, it is held that once a

person exercises an option knowing the fact that he does

not possess the requisite qualifications prescribed for that

post then that person foregoes his claim for the lower post

after being rejected for the higher post for which petitioner

had stalked claim.

15. In the case of Manish Bakawale (supra), petitioner

had filled his first option for the post of Deputy

Superintendent of Police for which certain physical

parameters were prescribed which admittedly petitioner

was not possessing. Though, petitioner on the touchstone

of merit was eligible for appointment as DSP but for want

of said physical parameters, his candidature was rejected.

Petitioner therein claimed that after rejection of his

candidature, since a person lower in merit in the same

category to which the petitioner is belonging was given

appointment as CMO and, therefore, Manish Bakawale

should have been given appointment as CMO in

preference to a person having lower merit. Answering this

issue, which is almost similar to the present controversy,

Supreme Court has held that a person having knowledge

that he was ineligible for a particular post ought not to

have exercise the preference. But having acted so, at that

stage, if he seeks appointment to the next preferred post

and such request is accepted it will result in displacing a

candidate who having a made truthful declaration had

indicated the appropriate preference, who is selected and

placed in the main list, therefore, in such circumstance if

any interference is made in the process of selection, apart

from the fact that it could interfere with the administrative

process, would also cause hardship to the candidates who

have already been appointed and are not before this Court.

16. In clause (9.2) just above prescribed age limit on

internal page 8 of the examination brochure issued by the

Professional Examination Board, it is mentioned as

under:-

vH;fFkZ;ksa dks vkosfnr in ds fy, izkFkfedrk vafdr

djuh gksxhA ;fn dksbZ vH;FkhZ ijh{kk esa vgZ gks tkrk gS

rFkk e.My }kjk mldh vH;fFkZ;ksa dh vuq'kalk dh tkrh gS

rFkk ;fn og fu;qfDr ds fy, fu/kkZfjr ekun.Mksa dks iwfrZ

ugha djrk gS vkSj mls fu;qfDr vkns'k tkjh ugha fd;k

tkrk gS rks ,slh n'kk esa mudh vH;fFkZrk ukeatwj gks tk,xh

vkSj og vU; in ds fy, vgLrkarj.kh; gksxh rFkk bldk

iw.kZ nkf;Ro lacaf/kr vH;FkhZ dk gksxk u fd e.My dkA

However, when this clause is examined in the law

laid down by Hon'ble Supreme Court in the case of

Manish Bakawale and Others (supra) it is evident that

provision is made to save unnecessary displacement and

prevent relegation of an appointed candidate to a lower

merit or outside employment. Its purpose is not to deny

appointment to a meritorious candidate within his/her

category. It is admitted fact and is not disputed by any of

the respondents that petitioner was most meritorious

candidate within her category of Scheduled Tribe.