Karnataka High Court
Basavaraj S/O Sidramappa Ambalagi vs The Additional Chief Secretary And Ors on 6 October, 2023
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NC: 2023:KHC-K:7997
WP No. 200967 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
WRIT PETITION NO. 200967 OF 2023 (S-RES)
BETWEEN:
BASAVARAJ S/O SIDRAMAPPA AMBALAGI
AGE: 30 YEARS
R/O POST MADANHIPPARAGA VILLAGE
TQ. ALAND DIST KALABURAGI-585236.
...PETITIONER
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
1. THE ADDITIONAL CHIEF SECRETARY,
DEPARTMENT PERSONAL AND ADMINISTRATIVE
REFORMS,
M. S. BUILDING BENGALURU-560001.
2. THE SECRETARY,
KARNATAKA PUBLIC SERVICES COMMISSION,
UDYOGA SOUDHA, PARK ROAD,
BENGALURU-560001.
3. NEELAPPA S/O HANUMANTAPPA BINGE,
AGE: MAJOR, NO. 7/78, KURUBA ONI,
NEAR KANAKADAS CIRCLE,
HANUMANSAGARA, KOPPAL,
KUSHTAGI-583277.
...RESPONDENTS
(BY SRI.GOPALKRISHNA B. YADAV, HCGP FOR R1;
SRI. SRI.R.J.BHUSARE, ADVOCATE FOR R2;
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NC: 2023:KHC-K:7997
WP No. 200967 of 2023
R-3 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO A WRIT OF
CERTIORARI AND QUASH THE SELECTION OF RESPONDENT
NO 3 AT SL NO. 7 OF SELECTION LIST OF RESPONDENT NO. 2
DATED 02.03.2021 BEARING NO. E(3) 3006/2020-21/PSC VIDE
ANNEXURE-H, AND CONSEQUENTLY APPOINT THE PETITIONER
FOR THE POST OF SDA, .
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioner is assailing the Selection of the respondent No.3 to the post of Second Division Assistant, as per the Selection List, dated 02.03.2021 (Annexure-H) and order dated 19.04.2021 (Annexure-J) passed by the respondent No.1, interalia sought for quashing of the clarification dated 17.09.2022 (Annexure-M) issued by the respondent No.1 and sought for consequential relief of considering the case of the petitioner for the post of Second Division Assistant (for short, hereinafter referred to as SDA).
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2. Relevant facts for the adjudication of the case are that, the respondent No.2 issued notification dated 11.02.2019, from the eligible candidates to fill up the post of First Division Assistant and Second Division Assistant in the courts in the State of Karnataka (Annexure-B).
3. Pursuant to the same, the petitioner applied for the post of SDA and participated in the competitive examinations conducted by the respondent No.2. Copy of the notification dated 11.02.2019 is produced at Annexure-B. It is the case of the petitioner that, the petitioner was found eligible for consideration and document verification was sought, however, due to Covid Pandemic, respondent-authorities directed the petitioner to send the particulars through post. After verification of the documents, the respondent No.2 issued an Endorsement stating that, as per the -4- NC: 2023:KHC-K:7997 WP No. 200967 of 2023 circular of the Government, dated 27.02.2018, clarifications has been sought from the Government with regard to accepting the applications from the candidates having completed Diploma Course, who have passed one language and one subject conducted by National Institute of Opening Schooling (NIOS)/ Pre-University Board as per Annexure-F. The petitioner sent letter dated 21.01.2021 as per Annexure-G, and stated that, the petitioner has completed Diploma Course of III years, and has passed language in English Subject, and Mathematics during his diploma Course, which is equivalent to PUC II year. It is further stated that, the respondent No.2 without considering the reply made by the petitioner as per Annexure-G, issued the Final Selection list, dated 02.03.2021, selecting the respondent No.3 and feeling aggrieved by the same, the petitioner has presented this writ petition.
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4. I have heard Sri Harshavardhan R. Malipatil, learned counsel appearing for the petitioner and Sri G.B.Yadav, learned High Court Government Pleader appearing for the respondent-State and Sri R.J.Bhusare, learned counsel appearing for the respondent No.2.
5. Sri Harshavardan R. Malipatil, learned counsel appearing for the petitioner invited the attention of the Court to the impugned Endorsement dated 19.04.2021, (Annexure-J) whereby, a cryptic order has been passed by the respondent No.2, without considering the G.O. dated 30.09.2021 (Annexure-K1) and the Unofficial Office Memorandum dated 09.05.2022 (Annexure-K2). He further submitted that, the State Government is not conducting NIOS certificate Course in the State of Karnataka and therefore, non selection of the petitioner is contrary to law. It is his submission that, -6- NC: 2023:KHC-K:7997 WP No. 200967 of 2023 as per Annexure-K to K2, the Diploma Course of 3 years is equivalent to PUC II year and same is applicable for all candidates who have completed the course even prior to 2015, and for subsequent years also and same is clarified that, the passing of Diploma Course is equivalent to II PUC and accordingly, sought for interference of this Court.
6. Per contra, Sri R.J.Bhusare, learned counsel appearing for the respondent No.2, submitted that, as per the Circular dated 27.02.2018, the candidate must complete Diploma Course having passed in one language paper and one subject in the examination conducted by the NIOS or the Department of Pre-
University Education. He further submitted that, the petitioner did not fulfill the educational qualification as per the aforementioned Circular, therefore, the case of the petitioner cannot be considered and accordingly, sought for dismissal of the writ petition.
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7. Sri G.B.Yadav, learned High Court Government Pleader appearing on behalf of the respondent-State sought to justify the impugned Selection List and accordingly, sought for dismissal of the writ petition.
8. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that, the respondent No.2 had invited application from the eligible candidates to fill up the FDA and SDA posts in various Courts in the State of Karnataka as per notification dated 11.02.2019 (Annexure-B). The relevant qualification for the post of SDA reads as under:
"¢éwÃAiÀÄ zÀeðÉ ¸ÀºÁAiÀÄPÀgÀ ºÀÄzÉÝU½À UÉ:
1. ¥Àz« À ¥ÀƪÀð ²PÀt ë ªÀÄAqÀ½AiÀÄÄ £Àq¸ É ÀĪÀ ¦.AiÀÄÄ.¹ CxÀªÁ vÀvÀª ì ÀiÁ£À «zÁåºð À vÉ vÀvÀª ì ÀiÁ£À «zÁåºÀðvÉU¼ À ÀÄ:
C) ¹.©.J¸ï.¹ ªÀÄvÀÄÛ L.J¸ï.¹ ªÀÄAqÀ½AiÀÄÄ £Àq¸ É ÀĪÀ PÁè¸ï 12 ¥ÀjÃPÉ.ë D) EvÀgÉ gÁdå ¸ÀPÁðgÀzÀ ¥ÀjÃPÁë ªÀÄAqÀ½UÀ½AzÀ £Àq¸ É ÀĪÀ PÁè¸ï 12 ¥ÀjÃPÉë -8- NC: 2023:KHC-K:7997 WP No. 200967 of 2023 E) £Áåµ£ À ¯ À ï E£ï ¹ÖlÆåmï D¥sï N¥À£ï ¸ÀÆÌ°AUï (J£ï.L.N.J¸ï) ªÀw¬ÄAzÀ £Àq¸ É ÀĪÀ G£ÀßvÀ ¥ËæqsÀ ²PÀët PÉÆøïð/ºÉZï.J¸ï.¹ F) ªÀÄÆgÀÄ ªÀµð À UÀ¼À r¥ÉÆÃè ªÀiÁ CxÀªÁ JgÀqÀÄ ªÀµð À UÀ¼À L. n. L PÉÆøïð CxÀªÁ JgÀqÀÄ ªÀµð À UÀ¼À ªÀÈwÛ ²PÀt ë r¥ÉÆÃè ªÀiÁ (eÉ.N.¹/eÉ.N.r.¹/eÉ.J¯ï.r.¹) C¨sÀåyðUÀ¼ÀÄ J£ï.L.N.J¸ï £À ªÀw¬ÄAzÀ £Àq¸ É ÀĪÀ MAzÀÄ ¨sÁµÁ PÉÆøïð ªÀÄvÀÄÛ MAzÀÄ ±ÉÊPÀt ë P À «µÀAiÀÄzÀ°è (zÀÆgÀP° À PÉ ªÀiÁzÀjAiÀÄ°è) CxÀªÁ ¥Àz« À ¥ÀƪÀð ªÀÄAqÀ½AiÀÄÄ £Àq¸ É ÀĪÀ ¥ÀjÃPÉAë iÀÄ°è MAzÀÄ ¨sÁµÉ ªÀÄvÀÄÛ MAzÀÄ «µÀAiÀÄzÀ°è GwÛÃtðgÁzÀ°è ªÀiÁvÀæ ¦.AiÀÄÄ.¹ vÀvª Àì ÀiÁ£ÀªAÉ zÀÄ ¥ÀjUÀt¸À§ºÀÄzÀÄ."
9. The relevant qualification for the post of SDA, as enumerated in the notification that a candidate must pass is pre-University or equivalent educational qualification, which includes 12th standard examination conducted by CBSC and ICSC, 12th Standard Examination conducted by the State Government, certificate issued by the National Institute of Open Schooling, 3 years Diploma or 2 years ITI Course or two years JOC/JODC/JLDC Diploma and the candidate must possess the certificate issued by NIOS for having studied one -9- NC: 2023:KHC-K:7997 WP No. 200967 of 2023 language and another subject through Open schooling.
Undisputedly, the petitioner has possessed three years Diploma Course and has not possessed certificate issued by NIOS Schooling, as there is no NIOS schooling in the State of Karnataka. It is the case of the petitioner, as per paragraph 22 of the writ petition that, the respondent No.2 had selected the candidates of Diploma Holders, who have not secured the certificate from the NIOS and such other stipulated criteria, prior to 2019. The said aspect has not been countered by the respondent-authorities and therefore, I am of the view that, it is a clear discrimination on the part of the respondent No.2 to impose such condition to the petitioner alone permitting the other candidates on the earlier occasions. It is also to be noted that, G.O. dated 30.09.2021 (Annexure-K1), reads as under:
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NC: 2023:KHC-K:7997 WP No. 200967 of 2023 " ¥À¸ æ ÁÛªÀ£AÉ iÀÄ°è «ªÀj¹gÀĪÀ CA±ÀU¼ À À »£É߯ÉAiÀÄ°è. ªÀÄÆgÀÄ ªÀµð À UÀ¼À r¥ÉÆÃè ªÀiÁ «zÁåºÀðvÉAiÀÄ£ÀÄß ¦.AiÀÄÄ.¹ «zÁåºð À vÉUÉ vÀvª Àì ÀiÁ£ÀªAÉ zÀÄ F PɼPÀ AÀ qÀ CAUÀ½UÉ ªÀiÁvÀæ ¥ÀjUÀt¹  , DzÉò¹zÉ.
1) £ÉÃgÀ £ÉêÀÄPÁw/C£ÀÄPÀA¥ÀzÀ DzsÁgÀzÀ £ÉêÀÄPÁw ºÉÆAzÀ®Ä ªÀÄvÀÄÛ G£ÀßvÀ ²PÀt ë ¥ÀqAÉ iÀÄ®Ä vÁAwæPÀ ²PÀt ë E¯ÁSÉAiÀÄ ªÀÄÆgÀÄ ªÀµð À UÀ¼À r¥ÉÆÃè ªÀiÁ ²PÀt ë ªÀ£ÀÄß ¦.AiÀÄÄ.¹ UÉ vÀvª Àì ÀiÁ£ÀªAÉ zÀÄ ¥ÀjUÀt¸  ¯ À ÁUÀĪÀÅzÀÄ.
2) 2015 QÌAvÀ »A¢£À ªÀµð À UÀ¼° À è vÁAwæPÀ ²PÀt ë E¯ÁSÉAiÀÄ ªÀÄÆgÀÄ ªÀµð À UÀ¼À r¥ÉÆÃè ªÀiÁ GwÛÃtðgÁzÀ «zÁåyðUÀ¼ÀÄ PÉ.¦.J¸ï.¹ ¬ÄAzÀ £Àq¸ É ÀĪÀ E¯ÁSÁ ¥ÀjÃPÉU ë ¼ À À eÉÆvÉUÉ PÀ£ÀßqÀ ¨sÁµÁ ¥ÀjÃPÉAë iÀÄ£ÀÄß vÉÃUÀðqÉ ºÉÆAzÀĪÀÅzÀÄ."
10. It is pertinent to mention here that, clarification has been sought for in this regard, and as per Unofficial Office Memorandum dated 09.05.2022 (Annexure- K2) it is clarified as follows:
"ªÀÄÄAzÀĪÀgz É ÀÄ vÁAwæPÀ ²PÀt ë E¯ÁSÉAiÀÄ ªÀÄÆgÀÄ ªÀµð À UÀ¼À r¥Éƪ è ÀiÁ eÉ.N.¹ AiÀÄ£ÀÄß 2018, 2019, 2020 gÀ C¨sÀåyðUÀ½UÉ ºÁUÀÆ 2015 QÌAvÀ »A¢¤AzÀ®Æ ¥ÀƪÁð£ÀéAiÀĪÁUÀĪÀAvÉ ¦AiÀÄĹ vÀvÀª ì ÀiÁ£ÀvAÉ iÀÄ£ÀÄß ¸ÀPÁðgÀzÀ DzÉñÀU¼ À £ À ÀéAiÀÄ ¤ÃqÀ§ºÀÄzÁVzÉ."
11. On careful examination of the said aspect, with that of, the letter dated 17.09.2022 addressed by the respondent No.2, to the state Government (Annexure- M), which reads as under:
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NC: 2023:KHC-K:7997
WP No. 200967 of 2023
"«µÀAiÀÄ: ªÀÄÆgÀÄ ªÀµð
À zÀ r¥ÉÆèªÀiÁ «zÁåºð
À vÉAiÀÄ£ÀÄß ¦.AiÀÄÄ.¹ UÉ
vÀvª
Àì ÀiÁ£ÀªAÉ zÀÄ ¥ÀjUÀt¸
 ÀĪÀ §UÉÎ.
ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ ¸ÀÄvÉÆÃÛ ¯É ¸ÀASÉå: ¹D¸ÀÄE 81 ¸ÉêÀ£É 2017 ¢£ÁAPÀ 27.02.2018 gÀ°è ªÀÄÆgÀÄ ªÀµð À zÀ r¥ÉÆÃè ªÀiÁ/eÉ.N.¹ «zÁåºð À vÉUÀ¼£ À ÀÄß vÀvÀª ì ÀiÁ£ÀªÁV ¥ÀjUÀt¸¨ À ÃÉ PÁzÀ°è J£ï.L.N.J¸ï. ªÀw¬ÄAzÀ MAzÀÄ ¨sÁµÉ ªÀÄvÀÄÛ MAzÀÄ ±ÉÊPÀt ë P À «µÀAiÀÄzÀ°è GwÛÃgÁVgÀ¨ÃÉ PÉAzÀÄ w½¸À¯ÁVvÀÄ.Û vÀz£ À AÀ vÀgÀ ²PÀt ë E¯ÁSÉAiÀÄÄ ¸Àzj À vÀvª Àì ÀiÁ£ÀvAÉ iÀÄ ªÀiÁ£ÀzAÀ qÀªÀ£ÀÄß PÀª æ ÀĪÁV ¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉå: Er 19 n«E 2021 ¢£ÁAPÀ 06.08.2021 gÀ°è ªÀiÁ¥Àðr¹ DzÉò¹zÉ. ¸Àzj À DzÉñÀU¼ À À£éAÀ iÀÄ r¥ÉÆèªÀiÁªÀ£ÀÄß £ÉÃgÀ £ÉêÀÄPÁwUÉ ºÁUÀÆ eÉ.N.¹.AiÀÄ£ÀÄß ¸Àz à ÁðvÀäPÀ ¥ÀjÃPÉU ë ¼ À À ªÀÄƯPÀ £ÉÃgÀ £ÉêÀÄPÁw ºÉÆAzÀ®Ä ¦.AiÀÄÄ.¹. UÉ vÀvª Àì ÀiÁ£Àª£ À ÁßV PÀ¤µÀÜ «zÁåºð À vÉAiÀÄ£ÁßV ¥ÀjUÀt¸À§ºÀÄzÉAzÀÄ ¸ÀàµÀÖ¥r À ¸À¯ÁVzÉ.
ªÀÄÄAzÀĪÀgz É ÀÄ, ²PÀët E¯ÁSÉAiÀÄÄ C.n. ¸ÀASÉå: E¦ 110 rfr 2022 ¢£ÁAPÀ 17.09.2022 gÀ°è ¸Àzj À r¥Éƪ è ÀiÁ/eÉ.N.¹. «zÁåºð À vÉU¼ À £ À ÀÄß 2018, 2019, 2020 £Éà ¸Á®ÄUÀ½UÉ ºÁUÀÆ 2015QÌAvÀ »A¢¤AzÀ®Æ ¥ÀƪÁð£ÀéAiÀĪÁUÀĪÀAvÉ ¦.AiÀÄÄ.¹ «zÁåºÀðvÉUÉ vÀvÀª ì iÀ Á£ÀªÁV ¥ÀjUÀt¸  § À ºÀÄzÉAzÀÄ ¸À¶ à ÃÖ PÀgt À ¤ÃrgÀÄvÀz Û .É F »£É߯ÉAiÀÄ°è E£ÀÆß £ÉêÀÄPÁw ¥ÀQæ Aæ iÉÄ ZÁ°ÛAiÀÄ°èzÄÀ Ý, zÁR¯Áw ¥Àg²À î£É ¥ÀÆtðUÉÆArgÀzÀ £ÉêÀÄPÁwUÀ½UÉ ¸Àzj À vÀvª Àì ÀiÁ£ÀvAÉ iÀÄ£ÀÄß C£Àé¬Ä¹PÉƼÀÄîªAÀ vÉ PÀ£ÁðlPÀ ¯ÉÆÃPÀ¸ÃÉ ªÁ DAiÉÆÃUÀPÉÌ F ªÀÄÆ®PÀ ¸ÀÆa¸À®Ä ¤zÉÃð²¸À®ànÖzÉÝãÉ."
12. It is to be noted that, applying the aforementioned facts on record and the affidavit sworn to by Sri Veerabhadra, Under Secretary to Government, DPAR, Bangalore, that the G.O. dated
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NC: 2023:KHC-K:7997 WP No. 200967 of 2023 30.09.2021 is prospective in nature and is made applicable for document verification of the candidates, which is under progress, and this aspect of the matter cannot be accepted as the said affidavit is contrary to the Unofficial Office Memorandum dated 09.05.2022 (Annexure-K2).
13. In the light of the discussion made above, the interference of this Court insofar as equivalence of qualification was considered by the Hon'ble Supreme Court in the case of Mukul Kumar Tyagi vs. State of Uttar Pradesh and others reported in (2020) 4 SCC 86, wherein, the question before the Hon'ble Supreme Court was related to the equivalence of qualification of CCC certificate which is said to have been equivalent of the certificate of computer qualification, issued by private organization in respect of post of Technical Grade II in Uttar Pradesh Power Corporation Limited conducted by Uttar Pradesh
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NC: 2023:KHC-K:7997 WP No. 200967 of 2023 Electricity Service Commission, Uttar Pradesh Power Corporation Limited, Lucknow. In the said case, Hon'ble Supreme Court, at paragraphs 56 to 62, 65, 67, 68 reads as under:
56. The mandatory qualification as per the advertisement is CCC certificate or equivalent computer qualification.
Some of the candidates who did not have CCC certificate and relied on computer qualification issued by private organisations and society had given a self-declaration that their computer qualification is equivalent to CCC certificate. One of the self-declarations we have extracted above.
57. We need to find out as to whether the advertisement envisaged self-certification by the candidates that their computer qualification is equivalent to CCC. Clause 7 of the advertisement relates with submission of testimonials in support of qualification and other certificates. Clause 7 refers to self-attested and signed photocopies of qualification certificates/marksheets/caste certificates, etc. For ready reference, Clause 7 of the advertisement is as follows:
"7. Submission of qualification and other certificates:
Candidates would be allowed to appear in written test provisionally on the basis of information made available by candidate in online application. Candidates would not earn right to selection merely on appearing in written test. Candidate would deposit self-attested & signed photocopies of qualification certificates/marksheets/caste certificate/domicile certificate/certificate concerning with computer/certificate of dependant of Freedom Fighter and certificate of Ex-servicemen (as defined in government orders and who have rendered minimum 5 years' service
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NC: 2023:KHC-K:7997 WP No. 200967 of 2023 in Army) (leaving those which are irrelevant) concerning with qualifications for advertised post at the time of interview with printout of online application. Certificates concerning with qualifications of candidates invited for interview who are declared successful in written test, would be scrutinised at different levels. In case of giving/receiving any kind of wrong information, right to cancel candidature at any stage and depriving of the selection process without any notice is reserved.
Note:
(1) Certificate of Electrician Trade only would be admissible.
(2) Technical certificate equivalent to it obtained through Distant Education Systems or on the basis of experience or desired trade would not be admissible."
58. It is further relevant to notice that the above clause in the advertisement only refers to self-attested and signed photocopies of qualification certificates, marksheets, caste certificates, etc. Self-attestation is a well-known concept according to which a candidate making any application instead of obtaining attestation by gazetted officer of the certificates may self-attest the certificates and submit them, which is subject to subsequent scrutiny and verification. When application is submitted online, self-attestation by candidate is sufficient to consider the candidature of the candidate for purposes of calling him to appear in the written test. Last part of Clause 7 further contemplates that "all the certificates concerning with qualification of candidates declared successful in written test, could be scrutinised". Clause 7 does not contemplate any self-declaration or self-certification of equivalence of computer qualification of the candidate. The advertisement neither envisaged nor permitted the candidates to give any self-certification or self-declaration that their computer qualification is equivalent to CCC.
59. The equivalence of qualification as claimed by a candidate is matter of scrutiny by the recruiting agency/employer. It is the recruiting agency which has to
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NC: 2023:KHC-K:7997 WP No. 200967 of 2023 be satisfied as to whether the claim of equivalence of qualification by a candidate is sustainable or not. The purpose and object of qualification is fixed by employer to suit or fulfil the objective of recruiting the best candidates for the job. It is the recruiting agency who is under obligation to scrutinise the qualifications of a candidate as to whether a candidate is eligible and entitled to participate in the selection. More so when the advertisement clearly contemplates that certificate concerning the qualification shall be scrutinised, it was the duty and obligation of the recruiting agency to scrutinise the qualification to find out the eligibility of the candidates. The self-certification or self-declaration by a candidate that his computer qualification is equivalent to CCC has neither been envisaged in the advertisement nor can be said to be fulfilling the eligibility condition.
60. The Division Bench in the impugned judgment [Deepak Sharma v. State of U.P. Special Appeal No. 585 of 2018, order dated 9-5-2019 (All)] has held that self- certification by the candidates of equivalence of their computer qualification was sufficient to treat them eligible. The Division Bench has further observed that no error was committed by employer (recruiting agency) in relying on self-declaration by the candidates for computer qualification equivalent to CCC. The following observations have been made in the impugned judgment [Deepak Sharma v. State of U.P. Special Appeal No. 585 of 2018, order dated 9-5-2019 (All)] :
"... In present days, computer literacy is just equivalent to letter literacy in earlier days. For letter literacy, self-certification was always acceptable and in line of the same, the computer literacy on self-certification can very well be accepted. In this factual background, we are of considered opinion that the employer did not commit any wrong while having a declaration on basis of self-certification for computer literacy equivalent to CCC...."
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61. We are unable to concur with the above view taken by the Division Bench. Scrutiny of computer qualification claimed by candidate to be equivalent to CCC certificate is the obligation and duty of the recruiting agency/employer as per the advertisement itself as noted above. The recruiting agency or the employer cannot abdicate their obligation to scrutinise the eligibility of candidate pertaining to computer qualification and reliance on self-certification by the candidate is wholly inappropriate and may lead to participation of candidates who do not fulfil the mandatory qualification as per the advertisement.
62. In view of the foregoing discussions, we conclude that advertisement dated 14-9-2014 does not envisage self-certification by the candidate of equivalence to CCC certificate of the computer qualification and further, self- certification by the candidates of their computer qualification was not sufficient to treat them having passed the required qualification.
65. We have already held that equivalence of qualification cannot be left to candidates by their self-declaration. There have to be norms and guidelines, which may subserve the purpose and object of making equivalent qualification as an eligibility for the post. The word "equivalent" has been defined in Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn. in the following manner:
"Equivalent. Equal in worth or value.
Equal in value, measure, force, effect, etc. Equivalent, Equal. Equal expresses the fact that two things agree in anything which is capable of degree, e.g., in quantity, quality, value, bulk, number, proportion, rate, rank and the like. Equivalent is equal in such properties as affect ourselves or the use which we make of things,
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NC: 2023:KHC-K:7997 WP No. 200967 of 2023 such as value, force, power, effect impact and the like (as) "Equivalent of money"."
67. This Court in Food Corpn. of India v. Jagdish Balaram Bahira [Food Corpn. of India v. Jagdish Balaram Bahira, (2017) 8 SCC 670 : (2017) 2 SCC (L&S) 708] , in para 56 laid down the following : (SCC p. 724) "56. ... Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Affirmative action in our Constitution is part of the quest for substantive equality. Available resources and the opportunities provided in the form of public employment are in contemporary times short of demands and needs. Hence, the procedure for selection, and the prescription of eligibility criteria has a significant public element in enabling the State to make a choice amongst competing claims. The selection of ineligible persons is a manifestation of a systemic failure and has a deleterious effect on good governance. Firstly, selection of a person who is not eligible allows someone who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits upon an imposter undeservingly."
68. In the process of recruitment, the Commission included the candidates in the select list, who claimed equivalent qualification to CCC certificate. Without any scrutiny, the inclusion of persons with whom there was no satisfaction by the Commission that their qualification was equivalent to CCC is nothing but permitting unqualified persons to be included in the select list. We, thus, conclude that neither was there any criteria or guidelines framed by employer or the recruitment agency to
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NC: 2023:KHC-K:7997 WP No. 200967 of 2023 determine the equivalence nor any exercise was conducted by the Commission during the process of recruitment and without there being scrutiny of the equivalent qualification claimed by several candidates, their names were included on the basis of self- certification. The Division Bench of the High Court in its impugned judgment [Deepak Sharma v. State of U.P. Special Appeal No. 585 of 2018, order dated 9-5- 2019 (All)] has not overturned the findings of the learned Single Judge that neither was there a criterion nor any scrutiny was undertaken by the Commission in the recruitment process. The Division Bench relied on self- certification by the candidates regarding equivalence of their qualification. The Division Bench approved the action of the employer and the Commission to rely on self- certification and has held:
"In this factual background, we are of considered opinion that the employer did not commit any wrong while having a declaration on basis of self- certification for computer literacy equivalent to CCC."
14. In the case of Ashok Kumar vs. State of Bihar reported in (2017) 4 SCC 357, the Hon'ble Supreme Court held that, the candidates who have participated in the process could not be allowed to challenge the selection process being aggrieved by the process of selection. In the said judgment, the Hon'ble Supreme Court at paragraphs 13 to 19 held as follows:
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13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla [Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 : 2002 SCC (L&S) 830] , this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar [Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100 : (2007) 2 SCC (L&S) 792] , this Court held that : (SCC p. 107, para
18) "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.
(See Munindra Kumar v. Rajiv Govil [Munindra Kumar v. Rajiv Govil, (1991) 3 SCC 368 : 1991 SCC (L&S) 1052] and Rashmi Mishra v. M.P. Public Service Commission [Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724 : (2007) 2 SCC (L&S) 345] .)"
14. The same view was reiterated in Amlan Jyoti Borooah [Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627] wherein it was held to be well settled that the candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful.
15. In Manish Kumar Shahi v. State of Bihar [Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 :
(2011) 1 SCC (L&S) 256] , the same principle was
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NC: 2023:KHC-K:7997 WP No. 200967 of 2023 reiterated in the following observations : (SCC p. 584, para 16) "16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 4 SLR 272] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K [Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712] , Marripati Nagaraja v. State of A.P. [Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 :
(2008) 1 SCC (L&S) 68] , Dhananjay
Malik v. State of Uttaranchal [Dhananjay
Malik v. State of Uttaranchal, (2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005 : (2008) 3 PLJR 271] , Amlan Jyoti Borooah v. State of Assam [Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627] and K.A. Nagamani v. Indian Airlines [K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57] ."
16. In Vijendra Kumar Verma v. Public Service Commission [Vijendra Kumar Verma v. Public Service Commission, (2011) 1 SCC 150 : (2011) 1 SCC (L&S) 21]
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NC: 2023:KHC-K:7997 WP No. 200967 of 2023 , candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible.
17. In Ramesh Chandra Shah v. Anil Joshi [Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309 : (2011) 3 SCC (L&S) 129] , candidates who were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that : (SCC p. 318, para 18) "18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome."
18. In Chandigarh Admn. v. Jasmine Kaur [Chandigarh Admn. v. Jasmine Kaur, (2014) 10 SCC 521 : 6 SCEC 745] , it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey [Pradeep Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493 : (2015) 3 SCC (L&S) 274] , this Court held that : (SCC p. 500, para 17) "17. Moreover, we would concur with the Division Bench on one more point that the
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NC: 2023:KHC-K:7997 WP No. 200967 of 2023 appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted."
This principle has been reiterated in a recent judgment in Madras Institute of Development Studies v. K. Sivasubramaniyan [Madras Institute of Development Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454 : (2016) 1 SCC (L&S) 164 : 7 SCEC 462] .
19. In the present case, regard must be had to the fact that the appellants were clearly on notice, when the fresh selection process took place that written examination would carry ninety marks and the interview, ten marks. The appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment [Anurag Verma v. State of Bihar, 2011 SCC OnLine Pat 1289.] that the interpretation of Rule 6 was not free from vagueness. There was, in other words, no glaring or patent illegality in the process adopted by the High Court. There was an element of vagueness about whether Rule 6 which dealt with promotion merely incorporated the requirement of an examination provided in Rule 5 for direct recruitment to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the appellants by the 90 : 10 allocation.
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15. Applying the aforementioned principles to be case on hand, the petitioner is not aggrieved by the qualification as prescribed in the advertisement/ notification issued by the respondent-authorities, however, he had appeared for examination conducted by the respondent No.2 and after coming to know that his candidature is on the borderline of consideration, challenged the qualifications enumerated in the notification issued by the respondent No.2 insofar as equivalence is concerned. In that view of the matter, I am of the opinion that, this Court cannot interfere with the academic questions relating to the equivalence of qualification to be determined in the present case. However, rejection of the representation dated 21.01.2022 (Annexure-G) made by the petitioner as per Endorsement dated 19.04.2021 (Annexure-J) is without any reasons and not
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NC: 2023:KHC-K:7997 WP No. 200967 of 2023 considering the G.O dated 30.09.2021 (Annexure-K1), therefore, I am of the view that, the respondent-
authorities be directed to re-consider the issue afresh and after providing opportunity to the petitioner relating to the issue involved in the matter and pass appropriate orders in accordance with law.
In the result, I pass the following:
ORDER
i) Writ petition is allowed in part;
ii) Endorsement dated 19.04.2021 (Annexure-J) passed by respondent No.2 is hereby set aside and matter is remitted back to the respondent Nos.1 and 2 to re-
consider the issue afresh in the light of the Government orders referred to above and pass appropriate orders within a period of
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NC: 2023:KHC-K:7997 WP No. 200967 of 2023 eight weeks from the date of receipt of certified copy of this order.
iii) Till the consideration of the case of the petitioner by respondent Nos.1 and 2, in accordance with law, respondent Nos.1 and 2 are restrained from issuing any additional list pertaining to the issuance of notification dated 11.02.2019.
Sd/-
JUDGE SB CT:SI List No.: 1 Sl No.: 61