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
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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
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Approved for Reporting Yes No
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VIJAYKUMAR RAMSANGBHAI CHAUDHARI
Versus
THE STATE OF GUJARAT & ORS.
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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
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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 Page 1 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 2 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 3 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 4 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 5 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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.
Page 6 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025NEUTRAL 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 Page 7 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 8 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 9 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 10 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 11 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 12 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 13 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 14 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 -
Page 15 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025NEUTRAL 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 Page 16 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 17 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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.
Page 18 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025NEUTRAL 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 Page 19 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 20 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 21 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 22 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 23 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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, Page 24 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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.Page 25 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025
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;Page 26 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025
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 Page 27 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 28 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 29 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 30 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 31 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 32 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 33 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 34 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 35 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 36 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 37 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 38 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 39 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 40 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 41 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 42 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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.Page 43 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025
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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] Page 44 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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.
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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.
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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."
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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 Page 48 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 49 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 50 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 51 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 52 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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.
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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. Page 54 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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.
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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.
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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 Page 57 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 58 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 59 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 60 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 61 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 62 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 63 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 64 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 65 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 66 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 67 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 68 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 69 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025 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 Page 70 of 70 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Tue Mar 11 2025 Downloaded on : Fri Mar 14 23:02:45 IST 2025