Madhya Pradesh High Court
Saurabh Varma vs The State Of Madhya Pradesh on 23 January, 2019
Equivalent citations: AIRONLINE 2019 MP 71
1
THE HIGH COURT OF MADHYA PRADESH
WP 3365/2018
Saurabh Verma vs. State of MP
Gwalior, dtd. 23/01/2019
Shri MPS Raghuvanshi, counsel for the petitioner.
Shri Harish Dixit, Government Advocate for the
respondents/State.
This petition under Article 226 of the Constitution of India has been filed against the order dated 30/01/2018 (Annexure P1) passed by Directorate, Urban Administration & Development, MP, Bhopal, by which the candidature of the petitioner for post of Assistant Accountant, has been rejected on the ground that he is not holding one year Computer Diploma Course from a recognized institution and accordingly, the petitioner does not hold the minimum qualification.
Challenging the rejection of candidature of the petitioner by the respondents, it is submitted by counsel for the petitioner that for the post of Assistant Accountant/Cashier, the minimum qualification is Graduate in Commerce from a recognized University and Proficiency in Computer. Accordingly, an advertisement was issued in the year 2017 for appointment on the post of Assistant Accountant, in which it was mentioned that the candidate must have the minimum qualification as provided under Rules and even in the advertisement, it was specifically mentioned that the candidate for 2 the post of Assistant Accountant, must be graduate in Commerce from a recognized University and must have Proficiency in Computer from a recognized institution It is submitted that the rejection of the candidature of the petitioner on the ground that he is not holding one year Computer Diploma Certificate from a recognized institution, is de hors Madhya Pradesh Municipal Corporations (Appointment and Conditions of Service for Officers and Servants) Rules, 2000 which were duly amended in the year 2015 as well as the qualifications mentioned in advertisement. Thus, it is the case of the petitioner that the candidature of the petitioner has been wrongly rejected.
The respondents have filed their return and they have stated that, where the Rules are silent as to judge the Computer Proficiency of a candidate, then for a fair and impartial process of appointment, if the employer has fixed some uniform qualification which supplements the statutory Rules and does not supplant, then the same cannot be said to be illegal or arbitrary. However, when the Counsel for the State was directed to produce a document fixing the uniform qualification thereby supplementing the statutory rules, then it was fairly conceded by the Counsel for the State that there is no such written decision in this regard.
Heard the learned counsel for the parties.
The counsel for the State may be correct in saying that where the Rules or the statute is silent, then the executive instructions can 3 be issued to fill up the vacuum. However, the same cannot be made applicable without there being a written executive instruction or ''inherent jurisdiction''. Any authority without any prior information to the aspirants, cannot change the criteria in the mid of selection process, therefore, the stand taken by the State cannot be accepted. Thus, it is held that the act of the respondents in abruptly changing the criteria in the mid of selection process, cannot be said to be in accordance with law, as there is no ''inherent jurisdiction'' of the Selection Committee to lay down such norms for selection contrary/ in addition to the qualification prescribed by the Rules. Selection has to be made by strictly adhering to the statutory provisions and if such power i.e. inherent jurisdiction is claimed, then it has to be explicit and cannot be read by necessary implication, as any deviation is likely to cause irreparable loss to the candidate.
The Supreme Court in the case of Durgacharan Misra vs State Of Orissa and Others, reported in AIR 1987 SC 2267 has held as under:-
''16. The Rules have been framed under the proviso to Article 309 read with the Article 234of the Constitution. Article 234 requires that the appointment of persons other than District Judge to the Judicial Service of State shall be made by the Governor of the State. It shall be in accordance with the rules made by the Governor in that behalf after consultation with the State Service Commission and with the State High Court. The Rules in question have been made after consultation with the Commission and the State High Court. The Commission which has 4 been constituted under the Rules must, therefore faithfully follow the Rules. It must select candidates in accordance with the Rules. It cannot prescribe additional requirements for selection either as to eligibility or as to suitability. The decision of the Commission to prescribe the minimum marks to be secured at the viva-voce test would, therefore, be illegal and without authority.'' The Supreme Court in the case of P.K. Ramachandra Iyer & Ors vs Union Of India & Ors, reported in AIR 1984 SC 541 has held as under:-
''44. Mr. Ramachandran, learned counsel for the petitioner contended that Rule 13 does not envisage obtaining of minimum marks at the viva voce test even though it contemplates obtaining minimum marks at the written test so as to be eligible for being called for viva voce test. It was further urged that Rule 14 specified the manner in which merit list is to be arranged. Rule 14 provides that after both written and viva voce tests are held, the candidates will be arranged by the Board in the order of merit in each category (Professional subjectwise) as disclosed by the aggregate marks finally awarded to each candidate and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination. On a combined reading of Rules 13 and 14, two things emerge. It is open to the Board to prescribe minimum marks which the candidates must obtain at the written test before becoming eligible for viva voce test. After the candidate obtains minimum marks or more at the written test and he becomes eligible for being called for viva voce test, he has to appear at the viva voce test. Neither Rule 13 nor Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. On the contrary, the language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva voce test and the final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva voce examination. The additional qualification which ASRB 5 prescribed to itself namely, that the candidate must have a further qualification of obtaining minimum marks in the viva voce test does not find place in Rules 13 and 14, it amounts virtually to a modification of the Rules. By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. It however does not appear in the facts of the case before us that because of an allocation of 100 marks for viva voce test, the result has been unduly affected. We say so for want of adequate material on the record. In this background we are not inclined to hold that 100 marks for viva voce test was unduly high compared to 600 marks allocated for the written test. But the ASRB in prescribing minimum 40 marks for being qualified for viva voce test contravened Rule 14 inasmuch as there was no such power in the ASRB to prescribe this additional qualification, and this prescription of an impermissible additional qualification has a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidate at written test plus viva voce test. Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high-up in the merit list was likely to be rejected on the ground that he has not obtained minimum qualifying marks at viva voce test. To illustrate, a candidate who has obtained 400 marks at the written test and obtained 38 marks, at the viva voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the ground that he has not obtained qualifying marks at viva voce test. This was impermissible and contrary to Rules and the merit list prepared in contravention of the Rules cannot be sustained.'' Accordingly, the order dated 30 th January, 2018 (Annexure P1) so far as it relates to the petitioner is hereby quashed. The respondents are directed to consider the candidature of the petitioner vis-a-vis the candidatures, who have been selected for by the respondents.6
Let necessary exercise be completed within a period of three months from today.
Petition is, accordingly, allowed.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2019.01.28 14:52:15 +05'30'