Telangana High Court
Rameswaram Rahul Swaraj vs The State Of Telangana And 2 Others on 22 March, 2022
Author: Satish Chandra Sharma
Bench: Satish Chandra Sharma, Abhinand Kumar Shavili
THE HON'BLE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
Writ Petition No.33601 of 2021
Writ Petition No.19209 of 2019
Writ Petition No.5001 of 2021
And
Writ Petition No.5002 of 2021
COMMON ORDER:(Per Hon'ble Sri Justice Abhinand Kumar Shavili) All these Writ Petitions are being disposed of by way of common order, as the issue raised in these Writ Petitions are one and the same.
2. Heard Smt. B. Rachana, learned counsel for the petitioner in Writ Petition No.33601 of 2021, Writ Petition No.5001 of 2021 and Writ Petition No.5002 of 2021, Sri S. Rahul Reddy, learned counsel for the petitioner in Writ Petition No. 19209 of 2019, Smt. V. Umadevi, learned Standing Counsel for the High Court ::2:: HCJ & AKS,J wp_33601_2021 and batch and learned Government Pleader for Law and Legislative Telangana.
3. For the sake of convenience, the facts in Writ Petition No.33601 of 2021 are hereunder discussed.
4. This Writ Petition is filed seeking Writ of Mandamus declaring the action of the respondents in rejecting petitioner vide Notification dated 21-01-2021 pursuant to Notification vide No. 9 of 2019, dated 31-07-2019 for direct recruitment to the post of Office Subordinate in the Telangana Judicial Ministerial Service in terms of Telangana Judicial Ministerial and Subordinate Service Rules, 2018, where the qualification for the post of Office Subordinate prescribed under 17th category specified in Column (1) of Annexure-1 of Rule 8 of Telangana Judicial Ministerial and Subordinate Service Rules, 2018 is, ultravires, arbitrary, unconstitutional and in violation of principles of Natural Justice and consequently to set ::3:: HCJ & AKS,J wp_33601_2021 and batch aside rule 8 Qualification mentioned under 17th category for the post of Office Subordinate specified in Column (1) of Annexure - I of Telangana Judicial Ministerial and Subordinate Service Rules, 2018 by not pressing for the said qualification only for the recruitment pursuant to Notification vide No.9/2019, dated 31-07-2019 for direct recruitment to the post of Office Subordinate in the Telangana Judicial Ministerial Service and to pass such order/orders as it may deem fit and necessary in the circumstances of the case.
5. It has been contended by the petitioner that the petitioner is fully eligible to be appointed as Office Subordinate and the respondents have issued Notification No.9 of 2019, dated 31-07-2019 inviting applications for various posts of Office Subordinates in the State of Telangana and the petitioner has responded to the said notification.
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6. The counsel for the petitioner had further
contended that the qualifications as prescribed in the notification are as follows:
"Must have passed 7th class examination or its equivalent examination. Candidates who failed 10th class will be considered eligible, but those who have higher qualifications than that will not be considered eligible."
7. It has been contended by the learned counsel for the petitioner that the petitioner faired reasonably well in the said selection process. The grievance of the petitioner is that the respondents have rejected the case of the petitioner on 21-01-2021 on the ground that the petitioner is possessing higher academic qualification than the prescribed in the notification and the qualification of the petitioner is not in consonance with the qualification advertised.
8. The learned counsel for the petitioner contended that the petitioner has not suppressed anything about his higher qualification and the petitioner has applied ::5:: HCJ & AKS,J wp_33601_2021 and batch through online application form and having permitted the petitioner to participate in the selection process, the respondents ought not to have rejected the case of the petitioner only on the ground that the petitioner is having higher qualification than prescribed in the notification. Therefore, appropriate orders be passed in the Writ Petition directing the respondent to consider the case of the petitioner for the post of Office Subordinate and also to set aside the rejection order dated 21-01-2021.
9. The learned counsel appearing for the petitioner in Writ Petition No. 19209 of 2019 had contended that the petitioner has challenged the notification itself, wherein the qualification, as prescribed by the first respondent in the notification itself is discriminatory and in the matters of higher qualifications, the respondents cannot reject the case of the petitioner possessing higher qualifications and the same cannot be put against the petitioner and the petitioner should ::6:: HCJ & AKS,J wp_33601_2021 and batch be considered for appointment to the post of Office Subordinate, therefore, appropriate orders may be passed in all the Writ Petitions by setting aside the rejection orders passed by the respondents and direct the respondents to consider the case of the petitioners.
10. The learned counsel appearing for the petitioner in Writ Petition No. 19209 of 2019 further contended that if the qualification is restricted only to 7th Class and 10th Class fail for Office Subordinates and if such Office Subordinates are recruited, then their cases further cannot be considered for further promotion, as qualification prescribed for next higher post is higher than what is prescribed for the post of Office Subordinate and he has relied upon the Judgment of the Hon'ble Supreme Court in Mohd. Riazul Usman Gani and others vs. District and Sessions Judge, ::7:: HCJ & AKS,J wp_33601_2021 and batch Nagpur1 and the Hon'ble Supreme Court has categorically held as follows:
"20. If an employee does not perform the duties attached to the post disciplinary proceedings can certainly be taken against him. An employer cannot throw up his hands in despair and devise a method denying appointment to a person who otherwise meets the requisite qualifications on the ground that if appointed, he would not perform his duties. Qualification prescribed is minimum. Higher qualification cannot become a disadvantage to the candidate.
21. A criterion which has the effect of denying a candidate his right to be considered for the post on the principle that he is having higher qualification, than prescribed cannot be rational. We have not been able to appreciate as to why those candidates who possessed qualifications equivalent to SSC examination could also not be considered. We are saying this on the facts of the case in hand and should not be understood as laying down a rule of universal application."
11. The learned Standing Counsel for the respondent-High Court contended that the petitioners having participated in the selection process, cannot turn around and contend that their cases were were erroneously rejected. The learned Standing Counsel for the respondent-High Court has relied upon 1 (2000) 2 Supreme Court Cases 606 ::8:: HCJ & AKS,J wp_33601_2021 and batch Judgment of the Hon'ble Supreme Court in Manish Kumar Shahi vs. State of Bihar and others2 and the Hon'ble Supreme Court held as follows:
"We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J & K (1995) 3 SCC 486 , 1995 SCC (L&S) 712 , (1995) 29 ATC 603, Marripati Nagaraja v. Govt. of A.P (2007) 11 SCC 522 , (2008) 1 SCC (L&S) 68, Dhananjay Malik v. State of Uttaranchal (2008) 4 SCC 171 , (2008) 1 SCC (L&S) 1005, Amlan Jyoti Borooah v. State of Assam (2009) 3 SCC 227 , (2009) 1 SCC (L&S) 627 and K.A Nagamani v. Indian Airlines (2009) 5 SCC 515 , (2009) 2 SCC (L&S) 57.139"
12. The learned Standing Counsel for the respondent-High Court has further relied upon Judgment of the Hon'ble Supreme Court in 2 (2010) 12 Supreme Court Cases 576 ::9:: HCJ & AKS,J wp_33601_2021 and batch D. Sarojakumari vs. R. Helen Thilakom and others3 and the Hon'ble Supreme Court held as follows:
"11. As far as the present case is concerned an advertisement was issued by Respondent No.6 inviting applications for the post of Music Teacher in Samuel LMS High School. Respondent No.1 did not raise any objection at that stage that the post could not be filled in by direct recruitment and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court. In view of this we need not go into the other issues raised."
13. The learned Standing Counsel for the respondent-High Court has also relied upon Judgment of the Hon'ble Supreme Court in Madras Institute of Development Studies and another vs. Dr. K. Sivasubramaniyan and others4 and the Hon'ble Supreme Court held as follows:
"13. Lastly, learned counsel submitted that the respondent writ petitioner participated in the selection process without challenging the alleged 3 Civil Appeal Nos. 8345 to 8346 of 2009, dated 13-09-2017 4 Civil Appeal No. 6465 of 2015, dated 20-08-2015 ::10:: HCJ & AKS,J wp_33601_2021 and batch variance in the advertisement and the rules and without challenging the constitution of the Committee. He cannot thereafter challenge the same after being declared unsuccessful for the said post."
14. The learned Standing Counsel for the respondent-High Court contended that the employer has prescribed qualifications for the post of Office Subordinates, if even higher qualification candidates apply, they may not be discharging the duties of Office Subordinates properly and Office Subordinate posts are meant only for less educated persons and accordingly, the employer has taken a policy decision to restrict the qualifications to 7th class Pass and 10th class fail and it is a matter of policy of employer for prescribing the qualification for the post of Office Subordinate and the Court should be very slow in interfering with the qualifications prescribed for the relevant post, therefore, there are no merits and the Writ Petitions are liable to be dismissed.
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15. This Court, having considered the rival
submissions of the parties, is of the considered view that the petitioners having participated in the selection process cannot turn around and challenge the qualifications and the Supreme Court in number of cases i.e., Manish Kumar Shahi's case (2nd supra), D. Sarojakumari's case (3rd supra) and Madras Institute of Development Studies's case (4th supra), as referred to supra, have rejected the cases of persons, who have participated in the selection process and they cannot turn around and challenge the qualifications, as prescribed in the notification and in respect of prescribing the qualifications and it is prerogative of the employer to prescribe the qualifications for the post of Office Subordinate. In the instant case the employer has taken a policy decision to restrict the qualification to 7th class pass 10th class fail, as notified for the post of Office Subordinate and therefore, this court is not inclined to interfere with the ::12:: HCJ & AKS,J wp_33601_2021 and batch rejection orders passed by the respondents and the Writ Petitions are liable to be dismissed.
16. With the above said observations, all the Writ Petitions are dismissed. No order as to costs.
17. As a sequel, miscellaneous applications pending if any in these Writ Petitions, shall stand closed.
__________________________________ SATISH CHANDRA SHARMA, CJ _________________________________ ABHINAND KUMAR SHAVILI, J Date : .03.2022 AS/KHRM