2025 INSC 425
SUPREME COURT OF INDIA
(HON’BLE
DIPANKAR DATTA, J. AND HON’BLE MANMOHAN, JJ.)
JOMON K.K
Petitioner
VERSUS
SHAJIMON P.
Respondent
Civil
Appeal Nos. OF 2025 [ARISING OUT OF SLP (C) NOS.7930-7931 OF 2020]-Decided on
02-04-2025
Service Law
(A) Constitution
of India, Article 14, 16 and 142 – Special Rules of 1975 for the Kerala State
Water Transport Subordinate Service (Operating Wing), Rule 6 - Kerala
Inland Vessels Rules, 2010, Chapter III -– Kerala State and Subordinate Service
Rules, 1958, Rule 3(c) and 10(b) - Service
Law –
Qualification – Classification – Recruitment
- In the advertisement for the post of Lascar qualifications prescribed was (1)
Literacy in Malayalam or Tamil or Kannada (2) Possession of Current Lascar's
Licence - Appellant was the holder of a Syrang’s licence, which was valid when
he noticed the advertisement - Perceiving that possession of a Syrang’s licence
makes him eligible to apply for the post of Lascar which, incidentally, happens
to be the feeder post for promotion to the post of Syrang, the appellant
offered his candidature and was selected and appointment issued – Held that
possession of a current Lascar’s licence is an essential qualification for
anyone aspiring for the post of Lascar - This is what is laid down in column
(3), i.e., the qualifications required; and going by what is said therein read
with Rule 6, there can be no gainsaying that apart from those having a current
Lascar’s licence, none else is eligible - The word “current” is also
significant in the sense that the Rules insist on a subsisting licence, i.e., a
certificate of competency, which is valid and operative during the time the
last date for receiving applications intervenes - The advertisement did not
require anything else other than what the Special Rules require - The absence
of express mention that those holding a Syrang’s licence or a Driver’s licence
which, according to the Director, are superior to a Lascar’s licence, is
insignificant, irrelevant and immaterial having regard to the clear terms of
Rule 6 - On a conjoint reading of Rule 6 of the Special Rules and the
advertisement, find both mentioning a particular qualification, i.e., a current
Lascar's licence, which each aspirant has to possess for being considered
eligible to participate in the process of selection, thereby creating a
distinct class and it is aspirants falling in such class alone who could have
applied for being considered - Thus, any aspirant, even though possessing a
Syrang’s licence or a Driver’s licence not being part of such distinct class,
could not have been considered eligible - The classification has not been shown
to be and is not unreasonable – Finding by the Division Bench of the High Court
that KPSC could not have included candidates with licences other than a
Lascar's licence in the “Ranked List” and proceed to recommend those candidates
for appointment upheld - No legally protected right of the appellant having
been affected by the impugned action, he has no valid claim - Appellant having
gained entry through a process which was not legal and valid, this is not a fit
and proper case where this Court ought, in exercise of its power
under Article 142 of the Constitution, to ignore the illegality and
invalidity to come to his rescue.
(Para 21 to 23, 30, 31
and 40)
(B)
Constitution of India, Article 14 and 16 – Service Law - Appointment – Challenge as to –
Necessary parties – Non joinder - Held that after appearing in a competitive
examination and upon being selected, the appointees become an identified
category and that if the rights of such appointees forming part of such
identified category are to be affected by any determination, the situation
commands that they should be impleaded in the proceedings as necessary
parties - The non-joinder now permits them to take the plea that the impugned
order does not bind them - Appellant did not immediately challenge the
Tribunal’s order finding him ineligible for appointment and rested on his oars
to throw a challenge till his service came to be terminated - In fact, he took
a chance of favourable consideration of his case by responding to the show
cause - Having taken a chance and not being successful, he cannot, thereafter,
succeed the ground of his non- joinder as a necessary party.
(Para
15 to 19)
JUDGMENT
Dipankar Datta, J.:-
THE
APPEAL
1.
These appeals, by special leave, take exception to the common judgment and
order dated 2nd December, 2019 of the High Court of Kerala at Ernakulam
dismissing the appellant's writ petitions [O.P.(KAT)
No. 153 of 2019 and O.P.(KAT) No. 154 of 2019] .
FACTS
2.
Facts giving rise to these appeals, which are not in dispute, are these:
a. An advertisement
dated 17th October, 2012 was published by the Secretary of Kerala Public
Service Commission[KPSC]
inviting applications from interested candidates for filling up 12 vacant posts
of “Boat Lascar” under the Kerala State Water Transport Department[the department].
The method of appointment was indicated as ‘direct recruitment’ and the
qualifications stipulated therein read as follows:
7. Qualifications:
(1) Literacy in
Malayalam or Tamil or Kannada
(2) Possession of
Current Lascar's Licence
Note :- Candidates
should possess current Lascar's Licence on the last date for receipt of
applications, during Practical Test and Interview also.
b. Incidentally, in
terms of the Special Rules of 1975[the
Special Rules] for the Kerala State Water Transport Subordinate Service
(Operating Wing) [Subordinate Service],
the service would consist of 3 classes of officers. While Class I comprised 2
categories, Classes II and III comprised 3 categories, viz. Category 1,
Category 2 and Category 3. Syrang, Driver and Lascar are listed at Categories
1, 2 and 3, respectively, of Class III. In terms of the Schedule appended to
the Special Rules, the post of Syrang can be filled up either by direct
recruitment or by promotion from among Lascars in the ratio of 1:1 whereas
appointment on the post of Lascar is entirely by direct recruitment. It is also
provided in the Schedule that while literacy in Malayalam or Tamil or Kannada
is the common qualification required for appointment as Syrang as well as
Lascar, an individual aspiring for the post of Syrang must possess current
Syrang’s licence while an individual aspiring for appointment on the post of
Lascar is similarly required to possess a current Lascar’s Licence.
c. The licence noted
above is a certificate of competency that is referred to in Chapter III of the
Kerala Inland Vessels Rules, 2010. In terms thereof, any aspiring individual
fulfilling the qualifications statutorily prescribed is issued a certificate of
competency upon succeeding in the “viva voce examination” that is conducted
either for a Syrang’s licence or a Lascar’s licence. Inter alia, while a person
aspiring for a Syrang’s licence is required to be 10th standard pass, it is 8th
standard pass for anyone aspiring for a Lascar’s licence.
d. By a letter dated
9th October, 2012 addressed to the Director of the Department, the Director of
Ports[the Director] conveyed to the
following effect:
… This is to
communicate formally that the Syrang, Master and Driver Certificate issued by
the Chief Examiner under the KIV Rules· 2010 is a certificate superior to
Lascar Certificate. Hence those who possess Syrang, Master and Driver
Certificate will be proficient in Lascar work also. Thus Syrang and Master
Certificate can be considered more than equivalent to Lascar Certificate and such
persons are eligible for the job 'lacer' (sic, lascar) also. This communication
is issued based on the representation received from a few candidates who
applied to the Public Service Commission for Lascar job in order to enable them
to complete the application process. Copy of their representation is enclosed.
However the final selection may be done based on practical test, on the
skills required, type of vessel and other requirements of the organization. …
e. The appellant was
the holder of a Syrang’s licence, which was valid when he noticed the
advertisement.
f. Perceiving that
possession of a Syrang’s licence makes him eligible to apply for the post of
Lascar which, incidentally, happens to be the feeder post for promotion to the
post of Syrang, the appellant offered his candidature and acquitted himself
creditably resulting in his name figuring at serial number 1 (OX category) in
the “Ranked List” which was circulated vide No. 257/17/ERVI and brought into
force with effect from 22nd February, 2017. He had secured 45.67 marks. Based
on such rank, the Secretary, KPSC informed the appellant vide letter dated 2nd
May, 2017 as follows:
… You are informed
that you have been advised for recruitment as Boat Lascar on Rs.8,960 -14,260/-
in the above Department against BC Turn. The selection is subject to Rule 3(c)
and 10(b) of the Kerala State and Subordinate Service Rules, 1958.
Further instructions will be issued to you in due
course by the above Department.
…
g. While the appellant was awaiting an offer
of appointment, on 8th May, 2017 and 27th July, 2017, two sets of original
applications under Section 19 of the Administrative Tribunals Act, 1985[O.A. No. 857 of 2017 and O.A. (EKM) No.
1566 of 2017] were filed before the Thiruvananthapuram and Ernakulam
Benches of the Kerala Administrative Tribunal[Tribunal] .
h. The prayer in O.A.
No. 857 of 2017 was for a declaration that inclusion of ineligible candidates,
who do not possess the essential qualification, is oppressive, arbitrary and
illegal; a direction be issued to restructure the “Ranked List” by removing all
such ineligible candidates; and to pass incidental orders. In OA (EKM) 1566 of
2017, similarly, the Tribunal was urged to declare candidates who did not have
valid and current Lascar’s licence as on 17th October, 2012, i.e., the last
date for receipt of applications, as not eligible to be included in the “Ranked
List” as well as for issuance of a direction to KPSC to recast the “Ranked
List” by excluding the candidates not possessing valid Lascar’s licence on 17th
October, 2012.
i. Importantly, in OA
No. 857 of 2017, no private party figured in the array of respondents and there
were only three official respondents (Director of the department, the Director
and KPSC). In OA (EKM) No. 1566 of 2017, apart from the official respondents,
only 5 of the several selected candidates were joined as respondents. The
appellant was not one among the five private respondents who were impleaded in
the said application.
j. During the pendency of the original
applications before the Tribunal, the appellant came to be appointed on 28th
July, 2017 as “Boat Lascar”.
k. The reply statement
filed by the Director before the Tribunal on 20th February, 2018 is extracted
hereunder:
“2. Port Department is
implementing KIV Rules 2010. Director of Ports is the competent Authority to
oversee the various regulations, under the provisions of KIV Rules 2010. KIV
Rules insist that the MASTER, DRIVER AND SYRANG certificates will be issued
only after 2 years from the date of issue of Lascar certificate by the Chief
Examiner, Department of Ports. So the persons who got competency certificates
for Master, Driver and Syrang also have sufficient eligibilities to be the boat
lascar. The above competency certificate holders are also eligible to apply for
the post of Lascar and it is stated by the Director of Ports in the letter
No.B3-389/2011 dated 9.10.2012.”
l. In due course, the
original applications were heard by the Tribunal. Vide its judgment and order
dated 9th March, 2018[Tribunal’s
order] , the Tribunal allowed both the original applications and
directed KPSC to recast the “Ranked List” and to cancel the advice to appoint
ineligible candidates.
m. Acting in pursuance
of the Tribunal’s order, KPSC issued a show cause notice dated 31st July, 2018
to the appellant calling upon him to explain why the advice for his appointment
be not treated as cancelled. The appellant responded thereto by his reply dated
10th August, 2018. Thereafter, KPSC issued an order dated 24th October, 2018
cancelling the advice for appointment of the appellant following which the
Director cancelled the appellant's appointment as “Boat Lascar” by his order
dated 27th October, 2018.
n. On 3rd November,
2018, the appellant challenged the Tribunal’s order before the High Court in
separate writ petitions. However, a Division Bench of the High Court by the
common impugned judgment and order dismissed such writ petitions.
CONTENTIONS
OF THE PARTIES
3.
Mr. P. N. Ravindran, learned senior counsel for the appellant, argued that both
the Tribunal in allowing the original applications as well as the High Court in
dismissing the writ petitions fell in error in not appreciating that a higher
qualification could never have been regarded as a disqualification for
appointment on the post of Lascar.
4.
Mr. Ravindran relied on the decisions in Parvaiz Ahmed Parry v. State of Jammu
and Kashmir[(2015) 17 SCC 709]
and Chandra Shekhar Singh and Others v. State of Jharkhand[2025 SCC OnLine SC 595] in support of the contention that a
candidate having a higher degree in the subject prescribed under the
advertisement cannot be disqualified by reason of ineligibility for not
possessing the required degree.
5.
Mr. Ravindran further argued that by the time the Tribunal was moved by the
unsuccessful candidates, the appellant had not been appointed. However, he
did figure in the “Ranked List”. During the pendency of the original
applications, the appellant came to be appointed. Despite such appointment, he
was not impleaded as a respondent in either of the two original applications
filed before the Tribunal. When the original applications were filed, seeking
exclusion of candidates holding Syrang’s licence and recasting of the “Ranked
List”, without the appellant being included as a respondent, no adverse order
could have been passed by the Tribunal qua him. Since the appellant was not
impleaded as a respondent in the original applications, the same were defective
and no relief could have been granted to the unsuccessful candidates/original
applicants.
6.
Mr. Ravindran also submitted that assuming this Court were not inclined to
accept the claim of the appellant that he could have been considered for
selection despite not possessing a current Lascar’s licence, it was contended
that this was an eminently fit case for exercise of power by this Court
under Article 142 of the Constitution. Reliance was placed on the
Constitution Bench decision in Supreme Court Bar Association vs Union Of
India and Anr. [1998 4 SCC 409].
7.
Per contra, Mr. Nair, learned counsel for KPSC, contended that the appellant
and similarly placed candidates having Syrang’s licence were considered for
selection in view of the letter of the Director dated 9th October, 2012.
However, the Tribunal having held that candidates not possessing current
Lascar’s licence could not have been considered for selection and having
directed KPSC to recast the “Ranked List”, the same was duly complied with
resulting in cancellation of the advice for appointment of the appellant.
8.
Mr. Nair relied on the decision in District Collector & Chairman,
Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari
Devi[(1990) 3 SCC 655] for the
proposition that when an advertisement mentions a particular qualification and
an appointment is made in disregard of the same, it is not a matter only
between the appointing authority and the appointee concerned: the aggrieved are
all those who had similar or even better qualifications than the appointee or
appointees but who had not applied for the post because they did not possess
the qualifications mentioned in the advertisement.
9.
According to him, had it been known that anyone not having a Lascar’s licence
but having a Syrang’s licence would be eligible for consideration for
appointment on the post of Lascar, others having Syrang’s certificate could
also have applied thereby enlarging the zone of consideration. However, keeping
the process confined only to a select few and not extending opportunity to all
others similarly situate like the appellant would contravene Article
16 of the Constitution and also amount to a fraud on public.
10. P.M.
Latha and Anr. v. State of Kerala and ors. [2003 3 SCC 541] was also cited by Mr. Nair in support of his
contention that anyone holding a Syrang’s licence could not have been considered
on the ground of being more qualified than the holder of a Lascar's licence,
and that whether Syrang's licence could be considered as appropriate for
recruitment of a Lascar is a question which ought to be left to be considered
by the authorities concerned. Since, in P.M. Latha (supra), this
Court did not consider candidates having B. Ed degree as qualified for the
vacancies advertised, which required recruitment to be made from candidates
with TTC qualifications, he urged that dismissal of the appeal is the only
logical conclusion.
11.
Mr. Nishe Rajan Shonker, learned counsel for the State of Kerala, adopted the
submissions of Mr. Nair.
QUESTION
OF LAW
12.
The central question of law arising for decision on this appeal is, whether the
appellant who did not hold a current Lascar's licence but was the holder of a
Syrang's licence could have been considered qualified to participate in the
recruitment process as well as appointed.
13.
Certain notable features having a bearing on the issue to be decided by us are
these:
a. The advertisement
dated 15th September, 2012 did stipulate that only those holding a current
Lascar's licence are eligible to apply. At the same time, it did not
specifically say that anyone holding a Syrang’s licence or a licence higher
than a Lascar’s licence is not eligible to apply.
b. According to the
Director, a Syrang’s licence is something superior to a Lascar’s licence and
that holders of Syrang’s licence can be considered more than equivalent to
Lascar’s licence, thus, being eligible for the job of Lascar also.
c. A communication to
the above effect was made by the Director to KPSC, not on his own, but based on
the representation received from a few candidates who, presumably having
Syrang’s licences, had applied for the post of Lascar and wanted to compete
with aspirants having Lascar’s licence.
d. Despite the
appellant being selected, his name figuring in the “Ranked List”, he being
recommended by the Secretary, KPSC on 2nd May, 2017 for appointment as “Boat
Lascar” as well as his appointment on 28th July, 2017 during the pendency of
the original applications, he was not impleaded as respondent therein.
e. The original
applicants could not have feigned ignorance as to the identity of candidates
possessing Syrang’s licence who came to be appointed; also, the Tribunal did
not take the pain of passing appropriate orders to have them impleaded.
Thus, the Tribunal’s order adverse to the interest of the appellant was
effectively passed behind his back.
f. Despite there being
a reference in the show cause notice dated 31st July, 2018 to the Tribunal’s
order, the appellant chose to reply to the show cause notice instead of
challenging the such order before the High Court either under Article
226 or 227 of the Constitution of India.
g. Once the
appellant’s appointment as “Boat Lascar” was cancelled on 27th October, 2018 by
the Director, such order provided him a cause of action to move an original
application before the Tribunal under Section 19 of the 1985 Act; however,
instead of moving the Tribunal, the appellant moved the High Court in its writ
jurisdiction, admittedly, when the Tribunal’s order had been acted upon.
ANALYSIS
AND REASONS
14.
In our considered opinion, the High Court would have been justified in
dismissing the writ petitions of the appellant at the threshold on the ground
that the order of cancellation had intervened in the meanwhile providing a
cause of action for him to move the Tribunal. In such original application, he
could have even prayed for recall of the Tribunal’s order on the ground of the
same having been passed behind his back and upon such recall, to hear him on
the merits of the original applications. Such a course of action was available
to the appellant in terms of the decisions of this Court in K. Ajit
Babu v. Union of India[(1997) 6 SCC
473] and Rama Rao v. M. G. Maheshwara Rao[(2007) 14 SCC 54] .
However,
the High Court examined the appellant’s claim on merits leading to dismissal of
his writ petitions and we too having been addressed on the merits of the
appeals, it would be just and fair to answer the question that we have
formulated above without taking too technical a view.
15.
First, we propose to consider the argument touching non-joinder of the
appellant in the proceedings before the Tribunal though, undoubtedly, he was a
necessary party.
16.
The effect of non-joinder of a necessary party in proceedings where an order is
passed adverse to the interest of the non-party was considered by a co-ordinate
bench of this Court in Ranjan Kumar v. State of Bihar[(2014) 16 SCC 187] .
17.
The decision in Ranjan Kumar (supra) was followed by the decision in
Kulwant Singh v. Dayaram[2015 3 SCC 177],
where promotion to the post of head constables in Chandigarh Police was the
subject matter of consideration. This Court held that after appearing in a
competitive examination and upon being selected, the appointees become an
identified category and that if the rights of such appointees forming part of
such identified category are to be affected by any determination, the situation
commands that they should be impleaded in the proceedings as necessary
parties. The non-joinder now permits them to take the plea that the impugned
order does not bind them.
18.
The decisions in Ranjan Kumar (supra) and Kulwant Singh (supra) are
authorities for the proposition that selectees who are appointed or promoted
must be arrayed as parties in the original proceedings where their selections
are challenged. Kulwant Singh (supra) has taken a step further and ruled
that mere awareness of pendency of litigation does not make the order passed by
the Court/Tribunal interfering with the selection binding upon such appointees
or promotees.
19.
Though there can be little quarrel with the law laid down in Ranjan
Kumar (supra) and Kulwant Singh (supra) and considering what has been
argued by Mr. Ravindran as a proposition of law, noted above, to be correct,
what stands out is that the appellant did not immediately challenge the
Tribunal’s order and rested on his oars to throw a challenge till his service
came to be terminated. In fact, he took a chance of favourable consideration of
his case by responding to the show cause. Having taken a chance and not being
successful, he cannot, thereafter, succeed before us on the ground of his non-
joinder as a necessary party. Having not initiated appropriate legal action
that the law permitted him to take, he can get back his service only if the
primary contention raised by Mr. Ravindran succeeds.
20.
Next, turning to the crux of the issue, it is absolutely necessary to bear in
mind that though the posts of Syrang and Lascar are included in Class III of
the Subordinate Service, the requisite qualifications for appointment on such
posts as ordained by the Special Rules are different. Moreover, it is
specifically ordained by Rule 6 of the Special Rules as follows:
“6. Other
Qualifications. - No person shall be eligible for appointment to the categories
specified in column (1) of the Table below by the method specified in column
(2) unless he possesses the qualifications prescribed in the corresponding
entry in column (3) thereof.”
21.
As noted in the factual narrative, possession of a current Lascar’s licence is
an essential qualification for anyone aspiring for the post of Lascar. This is
what is laid down in column (3), i.e., the qualifications required; and going
by what is said therein read with Rule 6, there can be no gainsaying that apart
from those having a current Lascar’s licence, none else is eligible. The word
“current” is also significant in the sense that the Rules insist on a
subsisting licence, i.e., a certificate of competency, which is valid and
operative during the time the last date for receiving applications intervenes.
22.
The advertisement did not require anything else other than what the Special
Rules require. The absence of express mention that those holding a Syrang’s
licence or a Driver’s licence which, according to the Director, are superior to
a Lascar’s licence, is insignificant, irrelevant and immaterial having regard
to the clear terms of Rule 6 (supra).
23.
Viewed from a different angle, on a conjoint reading of Rule 6 of the Special
Rules and the advertisement, we find both mentioning a particular
qualification, i.e., a current Lascar's licence, which each aspirant has to
possess for being considered eligible to participate in the process of
selection, thereby creating a distinct class and it is aspirants falling in such
class alone who could have applied for being considered. Thus, any aspirant,
even though possessing a Syrang’s licence or a Driver’s licence not being part
of such distinct class, could not have been considered eligible. The
classification has not been shown to be and is not unreasonable.
24.
True it is, from the reply statement of the Director filed before the Tribunal
and also from the 2010 Rules, it does appear that the holder of a Syrang’s
licence is mandatorily required to obtain and have a Lascar’s licence for 2
years and, therefore, without having a Lascar’s licence one cannot apply for a
Syrang’s licence. By the same analogy, it could be presumed that the holder of
a Syrang’s licence is having the requisite eligibility to be a Lascar. However,
what turns the tide against the appellant is the requirement of the ‘current’
Lascar’s licence, discussed above, which the appellant did not have on the last
date for receiving applications.
25.
We have further seen from the letter of the Director dated 9th October, 2010
addressed to KPSC that it was not voluntary; rather, it was at the behest of
candidates who did not possess current Lascar’s licence. It can well be
presumed that the Director buckled under pressure. However,
notwithstanding that, qualifications statutorily laid down could not have been
diluted by what the Director felt should be considered by KPSC and, therefore,
it is the statutorily prescribed qualifications that should prevail.
26.
Mr. Nair is also right in referring to us the decision in M. Tripura
Sundari Devi (supra). Although in such decision it was held that it
amounts to a fraud on public to appoint candidates with qualifications inferior
to the qualifications advertised, which is not precisely the case here because
the appellant has higher qualifications than what was required, yet, the other
principle of law flowing from such decision is squarely applicable. It has
neither been shown that the Director’s letter dated 9 th October, 2012 was
given wide publicity nor has it been shown by the appellant that KPSC had
issued any corrigendum vide public notice whereby the zone of consideration was
enlarged permitting holders of a Syrang’s licence to participate in the
process. We, thus, hold drawing inspiration from the said decision that
the aggrieved are all those who had similar or even better qualifications than
the appellant but who had not applied for the post because they were unaware of
the fact that persons not having a current Lascar’s licence would also be
eligible to apply and compete in the process. Equality of opportunity in
matters of public employment being a sine qua non for a fair and transparent
selection process, such equality is conspicuously absent in the present case.
27.
There is one other important aspect which also cannot be lightly overlooked. We
shall assume for a moment that though the process was commenced for appointment
on vacant posts of Lascar, there was no illegality in persons having Syrang’s
licence being permitted to participate. Of course, there could be aspirants
holding Lascar’s licence in sufficient numbers who might not have the higher
qualifications necessary for even appearing for a viva voce to aim at
possessing a certificate of competency as Syrang. Those aspirants, holding a
Lascar’s licence, might not also be so capable and/or competent for obtaining a
Syrang’s licence. After all, all individuals are not blessed with the same
level of intelligence, human abilities and intellect. The distribution of
innate abilities and intellectual prowess being far from uniform, resulting in
a diverse spectrum of human potential, it is axiomatic that aspirants having
only a Lascar’s licence can never be considered for direct recruitment on any
post in Class III of the Subordinate Service other than a Lascar. It is quite
but natural that in the matter of observation, perception and memorisation of
details of principles of navigation, and skill in respect of seamanship, there
would be significant differences in the faculties of different individuals. If
persons holding Syrang's licence- who are obviously better equipped than
persons holding Lascar’s licence - are allowed to apply and participate in the
process for appointment on the post of Lascar, the probability of the persons
holding Lascar's licence being outperformed by the persons
holding Syrang's licence would be quite high. It could also be a distinct
possibility where all the vacant posts of Lascar are filled up by persons
having Syrang's licence but not having a current Lascar’s licence as per the statutory
requirement. That would pose a real difficulty for persons not so fortunate and
lacking in higher intelligence, abilities and intellect, for, they would cease
to have a level playing field of competing with other similarly qualified
candidates, and left to compete with candidates having higher qualifications
despite the zone of consideration having been specially carved out for holders
of current Lascar’s licence. It is not that the holders of Syrang’s licence are
left in the lurch. Those having Syrang’s licence could well compete for
appointment on the post of Syrang in the 50% direct recruitment quota along
with others having current Syrang’s licence. If, in case, all the vacant posts
of Lascar are filled up by persons having Syrang’s licence and such holders of
Syrang’s licence do not participate in the process for direct recruitment to
the post of Syrang, it is fairly likely that the persons holding Lascar’s
licence would never secure any public employment. That could not have been the
intention of a welfare State.
28.
Also, it cannot be gainsaid that not only the qualifications but the nature of
duties required to be performed and the nature of service to be rendered by a
Lascar and a Syrang are different. Merely because the post of Lascar is a
feeder post for promotion to the post of Syrang does not per se make the
holder of a Syrang’s licence qualified for the job of a Lascar. Thus, nothing
much turns on it.
29.
Law is well-settled that an appointment made contrary to the statute/statutory
rule would be void [see: Pramod Kumar v. U.P. Secondary Education Services
Commission[(2008) 7 SCC 153]].
30.
Based on such consideration, we are ad idem with the Division Bench of the High
Court that KPSC could not have included candidates with licences other than a
Lascar's licence in the “Ranked List” and proceed to recommend those candidates
for appointment.
31.
On merits, therefore, no legally protected right of the appellant having been
affected by the impugned action, he has no valid claim.
32.
We have considered the decisions of this Court in Parvaiz Ahmed Parry (supra)
and Chandra Shekhar Singh (supra).
33.
In Parvaiz Ahmed Parry (supra) the appellant therein possessed degrees in BSc
with Forestry as one of his major subjects as well as MSc (Forestry). The
qualification prescribed in the Advertisement was “BSc (Forestry) or equivalent
from any university recognised by ICAR”. This Court held that the appellant’s
qualifications were equivalent to the minimum prescribed qualifications and
should be considered for the concerned post.
34.
Chandra Shekhar Singh (supra) was on the question of whether ‘degree’ as
mentioned in the advertisement therein included a post- graduate degree, which
the appellants therein possessed. This Court applying the golden rule of
interpretation held that the word ‘degree’ would include within its scope and
ambit all three degrees – bachelor's degree, master’s degree and a doctorate
degree – unless a specific expulsion has been made.
35.
The said decisions are, thus, distinguishable on facts.
36.
We hasten to add that whether or not the action of the employer to exclude an
aspirant from the process of selection (on the ground that either he is over
qualified for a particular post or has qualifications which, being over and
above what is ordained by statutory rules or rules framed under the proviso to
Rule 309 of the Constitution, does not match the qualification specifically
required) is justified has to be decided considering the rules governing the
selection, the qualifications prescribed, the nature of duty to be performed,
the nature of service to be rendered and a host of other factors. It has to be
remembered that, at times, the employer’s need to have the right people at the
right place, and not always the higher qualified, has to be conceded. We know
of decisions holding that over-qualification cannot be a disqualification since
such an approach amounts to discouraging the acquisition of qualifications on
the one hand and on the other, such an approach could be seen as arbitrary,
discriminatory and not in national interest. However, this principle cannot be
put in a straitjacket imposing rigid or inflexible rules or norms. Lack of
public employment opportunities in sufficient numbers may force even a Master
degree holder to apply for the job of a peon but, if he is appointed upon
his application being favourably considered, what happens to the aspirants who
have not had the means of pursuing study beyond the 12th standard? Do they
remain unemployed for ever, if all or majority of the posts of peon are filled
up by such degree holders? What happens if the Master degree holder, in pursuit
of greener pastures, leaves the post of Peon for a better and secured higher
job commensurate with his qualifications after a couple of years? Does it not,
in such a case, burden the public exchequer by requiring the employer to
initiate a fresh selection process? Is not the State, as a model employer,
obliged to ensure that the posts of peon are filled up only by those having the
basic qualification, and not by over qualified candidates, for sub-serving the
common good? Does not the State have the obligation to strive to ensure that
all citizens have adequate means of livelihood? These are questions which no
Court can afford to ignore. We end by saying that each case that comes before
the Court has to be decided on its own peculiar facts and the problem that it
presents for resolution and that there can be no universally accepted rule that
every time, a higher qualified candidate is to be preferred to a candidate who
matches the essential qualification required for the post.
37.
It is now time to consider Mr. Ravindran’s final submission that this is an
eminent case for exercising powers under Article 142 of the
Constitution.
38.
This Court in Ashok Kumar Sonkar v. Union of India[(2007) 4 SCC 54] held that if an appointment is illegal, it
is non-est in the eye of law and rendering the appointment a nullity and
principles of equity in a case of such nature would have no role to play; also
that, sympathy should not be misplaced.
39.
Exercise of power under Article 142 of the Constitution would have
been warranted in the present case if palpable injustice were demonstrated.
Unfortunately for the appellant, despite the assiduous endeavour of Mr. Ravindran,
we have consciously decided to confine our role to being the dispute-settlors.
40.
We are of the considered opinion that the appellant having gained entry through
a process which was not legal and valid, this is not a fit and proper case
where this Court ought, in exercise of its power under Article 142 of
the Constitution, to ignore the illegality and invalidity to come to his
rescue.
CONCLUSION
41.
The appeals, accordingly, fail and are dismissed. No costs.
42.
Pending application, if any, stands disposed of.
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