Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7721 OF 2021
(Arising out of SLP (Civil) No.5792 of 2020)
Madhya Pradesh Public Service
Commission .…Appellant(s)
Versus
Manish Bakawale & Ors. …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
1. The appellantMadhya Pradesh Public Service
Commission is assailing the order dated 08.11.2019
passed by the High Court of Madhya Pradesh in W.A.
Signature Not Verified
No.474 of 2019. Through the said order the learned
Digitally signed by
DEEPAK SINGH
Date: 2021.12.17
16:06:10 IST
Reason:
1
Division Bench of the High Court has dismissed the
intracourt appeal filed by the appellant herein. In doing
so, the learned Division Bench has affirmed the order
dated 03.01.2019 passed by the learned Single Judge of
that Court in W.P. No.20855 of 2017. The learned Single
Judge, had thereby allowed the writ petition and directed
the respondents in the writ petition, which included the
appellant herein to consider the case of respondent No.1
herein for appointment on the post of the Chief Municipal
Officer (‘CMO’ for short) GradeKh, Assistant Director or
any other post mentioned by the respondent No.1 in his
preference letter.
2. The facts in a nutshell are that the appellant
issued an advertisement No.2 dated 17.03.2016 inviting
online application from eligible candidates for the State
Service Examination 2016 for the various category of
posts under the State of Madhya Pradesh in different
departments. The advertisement was exhaustive
providing detailed information and it clearly indicated the
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eligibility criteria. The last date for submitting the
application was shown as 14.04.2016 and the
preliminary examination was scheduled to be held on
29.05.2016. The educational qualification and other
criteria were the same for all the posts advertised except
the age limit being different as specified. That apart, for
the posts of Deputy Superintendent of Police, Assistant
Jail Superintendent and Deputy Transport Inspector,
specific Physical Measurement was indicated as the
minimum eligibility criteria. Therefore, the candidates
satisfying the eligibility criteria could choose their order
of preference to the various posts that were advertised.
3. The respondent No.1 submitted his application and
had shown his order of preference. The second preference
shown was for the post of Deputy Superintendent of
Police, which could have been opted by a candidate if the
candidate satisfied the minimum required physical
measurement. Pursuant to such applications, the
preliminary examination and the written examination
3
was conducted. The respondent who had applied under
the Scheduled Caste (‘SC’ for short) category had secured
892 marks out of 1575 marks. The marks obtained by
the respondent No.1 was not sufficient in the order of
merit to be selected for the post as per his first
preference, namely Deputy District Collector. However,
the marks secured was sufficient to be placed in the
merit list for the post of Deputy Superintendent of Police.
Accordingly, the respondent No.1 was included in the
main list for the post of Deputy Superintendent of Police
by the appellant. In compliance with the remaining
formalities for appointment the respondent No.1
appeared before the Medical Board when it was found
that his height was only 162 cms. as against the
prescribed minimum height of 168 cms. The respondent
No.1 was therefore not eligible to be appointed to the post
of Deputy Superintendent of Police.
4. It is in the above backdrop the respondent No.1
approached the High Court since as per the appointment
4
made to the other posts it revealed that a schedule caste
candidate who had secured 892 marks was appointed to
the post of CMO. The respondent No.1 having shown his
subsequent preference for CMO in his application form
claimed that in such event he having obtained 892 marks
was entitled to be appointed in the post of CMO. The
learned Single Judge having accepted such contention
had allowed the writ petition and directed consideration.
The learned Division Bench approved the same. It is in
that circumstance the appellant, which is the authority
saddled with the responsibility of undertaking the
selection process is before this Court in this appeal.
5. We have heard Dr. Harsh Pathak, learned counsel
for the appellant, Mr. Pawan Reley, learned counsel for
the contesting respondent and perused the appeal
papers.
6. At the outset, a perusal of the order passed by the
learned Division Bench would indicate that it has merely
taken note of the consideration made by the learned
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Single Judge by extracting the order passed in the writ
proceedings before affirming the same. In that light, on
adverting to the order passed by the learned Single Judge
it would reveal that the learned Judge on taking note of
Rule 4(3)(c)(2) of M.P. State Civil Services Rules, 2015 has
arrived at the conclusion that the Rule is clear that if the
candidate is selected in the main list, then he/she will
not be considered for the remaining post of preference
made. However, the learned Single Judge has thereafter
arrived at the conclusion that though the respondent
No.1 was selected in the main list on the basis of the
higher priority of post, he could not be appointed on the
said post as he had not qualified on the benchmark
regarding his height and as such he should be considered
in the next preferred post.
7. Dr. Harsh Pathak, learned counsel for the
appellant while assailing such conclusion reached by the
High Court has made detailed reference to the Rules,
more particularly Rule 4(3)(c)(1) and (2) of the Rules. It
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would be appropriate to take note of Rule 4(3)(c)(1) and
(2) which read as hereunder:
“Category wise recommendation of the
candidates, for any specific service/post will be
made according to the marks obtained by them
and preference sheet (if any) submitted by them.
If a candidate is selected in the main list on
the basis of the higher priority of post given
by him in the preference sheet, he/she will
not be considered for the remaining post(s) of
preference sheet.”
8. In that light, the learned counsel has also referred
to the advertisement which contains the details of the
requirement and the qualification for the post. Since the
respondent No.1 had indicated his second preference to
the post of Deputy Superintendent of Police and the issue
presently is with regard to the wrong preference made by
him and in that light, the claim for next preference to the
post of CMO, the requirement of the physical
measurement for the post of Deputy Superintendent of
Police explicitly stated in the advertisement needs to be
noted, which is as hereunder:
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Physical Measurement:
The physical measurement prescribed for
the posts of Deputy Superintendent of
Police, Assistant Jail Superintendent and
Deputy Transport Inspector are as under:
| No. | Name of Post | Gender | Height<br>(in c.m.) | Chest Siege | |
|---|---|---|---|---|---|
| Without<br>Inflating<br>(in C.M.) | With<br>Inflated<br>(in C.M.) | ||||
| 1. | State Police<br>Service<br>(Dy. Supdt. Of<br>Police | Male | 168 | 84 | 89 |
9. In that background reference is made to the
application submitted by the respondent No.1(Annexure
P2) wherein the order of preference is given. The
preference for Deputy Superintendent of Police is at No.2
while the preference for the post of CMO is at No.16, but
the fact remains that the preferences are indicated.
However, what is relevant to be noted is the declaration
which is required to be made by the candidate in the
application, which reads as hereunder:
“DECLARATION
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* I, hereby declare that all the aforesaid
information given by me are true and
correct to the best of my belief, and
nothing material is concealed. It is well
within my knowledge that in the event of
furnishing of incorrect and false
information the criminal proceedings can
be initiated against me. Along with this
the benefits received and granted by the
Commission can be declared null and void
at any stage/time.
* I had read over and understood the
instructions of Commission word to
word and I hereby undertake to comply
the same.
* I also hereby declare that the choice for
which posts have been given by me, I
fulfilled all the prescribed eligibility i.e.
age limit, educational qualification,
experience, physical measurement etc.
for those posts.
* On being found ineligible at any stage
of selection, before selection or
thereafter my candidature can be
cancelled at any time for which I will be
solely responsible.
10. The learned counsel has also referred to the online
precedence/priority form with reference to the
instructions contained therein concerning to eligibility
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and the warning, to which the applicant i.e., respondent
No.1 herein has declared as having understood all the
stipulations and has undertaken to abide by the same.
The relevant instructions and the warning, as also the
undertaking read as hereunder:
“INSTRUCTIONS CONCERNING TO ELIGIBILITY:
It may be ensured at the time of filling of
precedence/priority form the priority for
which posts have been given the candidate
is having all the eligibility criteria for those
posts.
While giving preference for the uniform
posts, applicant should ensure that he
fulfils all the terms and conditions of
physical criteria’s.
WARNING:
If the precedence/priority form is
submitted for the selection of uniform post
by the candidate/applicant then the
applicant his/her own may ensure that
he/she is fulfilling all the terms prescribed
for age limit, educational qualification and
prescribed physical measurement for the
advertised posts applied by him/her. If any
error/mistake in the information provided
by the applicant shall be found then the
Commission shall be having the right to
cancel the candidature because of
submitting erroneous information the
candidate/eligibility of such
candidate/applicant prior to selection or
thereafter at any stage can be cancelled for
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which the applicant shall be solely
responsible for the same.
On furnishing/submitting erroneous
information by the candidate/applicant, it
will be considered as grave error and on
being found erroneous selection of
applicant the same can be cancelled for
which the applicant himself/herself shall
be responsible.
I, Agree – I hereby declare that, I have read and
understood all the stipulations given in the
advertisement, corrigendum’s and hereby
undertake to abide by them.
Sd/ Illegible
Manish Bakawale
02.06.2017”
11. In that view, it is contended that the respondent
No.1 having understood the instructions and also having
taken note of the eligibility and requirements has
indicated his second preference to the post of Deputy
Superintendent of Police. Such preference exercised
would be to the effect that the respondent No.1 satisfies
the eligibility requirement of physical measurement as
declared by him and has therefore opted for the said
post. In that background, the appellant while taking note
of the preference and the marks obtained in the
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examination had included his name in the main list as
the candidate who had obtained 892 marks in the order
of merit was eligible to be considered under the schedule
caste category for the post of Deputy Superintendent of
Police. On such inclusion in the main list, the candidate;
in this case the respondent No.1 would stand excluded
from further consideration for any other post even if
shown as next preference.
12. Thereafter, the remaining candidates would be
considered for the post that they have preferred based on
the eligibility criteria and the marks obtained by such
candidates. In that manner the list would be finalised
simultaneously for all the different posts advertised in the
different departments. From such list, on verification of
the testimonials and the relevant criteria which is the
eligibility for the post would be taken note and the
appointment orders will be issued. In that circumstance
when the respondent No.1 had preferred the post of
Deputy Superintendent of Police and had secured the
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marks required but was found ineligible to be appointed
in that post cannot thereafter turn around to seek
appointment in the next preferred post when already the
persons eligible are considered for such post and the
main list is finalised. In such circumstance, it is
contended that the order passed by the High Court is not
sustainable and the same is liable to be set aside.
13. The learned counsel for the respondent on the
other hand contended that the Rule cannot be taken note
in such narrow perspective. Though the physical
requirement is indicated, the Rule 9 provides regarding
the physical fitness. It is contended that the physical
criteria cannot be a bar merely because at the time of
medical examination the benchmark is not reached. It is
contended that there is a likelihood that the chest
measurement could be as per requirement at the time of
application and therefore the preference would be
indicated in such manner. Subsequently if there is a
change in the physical measurement, the same should
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not be treated as a bar. In that view, it is contended that
the rule 4(3)(c)(2) which has been referred ought not to be
interpreted narrowly. In that light, the learned counsel
for the respondent sought to justify the order passed by
the High Court by contending that the learned Single
Judge having noted the Rule and on taking note that the
respondent No.1 although selected in the main list for the
higher post for which preference was given, he could not
be appointed as he had not obtained the benchmark
regarding his choice and in that view has to be
considered for the next preferred post. It is in that
circumstance, the learned Single Judge held that the
Rule would not be applicable in the present case. The
learned counsel has further relied on the precedents to
contend that the Rule is to be interpreted in a beneficial
manner and not in a literal sense.
14. From the facts narrated above and the contentions
putforth by the learned counsel for the parties, it is
evident that though several posts were advertised and the
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applications were sought from the eligible candidates, the
preliminary and written examination was common and
the marks as obtained in the said examination was taken
into consideration to include the candidates based on
merit to the post for which the candidate concerned had
given his preference. The advertisement had indicated the
requirement of the Rule that a candidate who had
preferred the higher of the posts which has been
advertised would be selected against such post depending
on the merit in the examination. To that extent Rule 4(3)
(c)(2) of Rules 2015 noted above is clear and specific that
the categorywise recommendation of the candidates will
be made according to the marks obtained by them and
the preference sheet submitted by the candidate. Clause
(2) of SubRule (3) further clarifies that if a candidate is
selected in the main list on the basis of the higher
priority of the post given by him in the preference sheet,
the candidate will not be considered for the remaining
post indicated in the preference sheet.
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15. In the instant case, the fact that the respondent
No.1 had given his preference to the post of Deputy
District Collector, Deputy Superintendent of Police and
thereafter to the other posts including CMO in that order
of preference is not in dispute. The further fact that the
respondent No.1 had secured 892 marks out of 1575
marks is the common case of the parties. Though the
respondent No.1 had given first preference to the post of
Deputy District Collector, the marks obtained by him was
not sufficient to be included in the main list based on
merit for that post. In that light, the second preference
given by respondent No.1 to the post of Deputy
Superintendent of Police was taken into consideration.
For the said post eight vacancies had been notified as
reserved for the Scheduled Castes candidates. In that
view, the said 892 marks obtained by respondent No.1
was sufficient to accept the preference and include the
name of the respondent No.1 in the main list for the post
of Deputy Superintendent of Police.
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16. While taking note of this position, what is also to
be kept in view is the additional eligibility criteria for the
said post which had been clearly depicted in the
advertisement calling for applications and was within the
knowledge of respondent No.1. Clause 9 thereof, which
has been extracted and taken note supra in the course of
this order indicates that the minimum height prescribed
for the said post was 168 cms. The application submitted
by the respondent No.1 apart from indicating that his
second preference is to the post of Deputy
Superintendent of Police, he had further signed in
acknowledgment of the declaration made in the
application which has also been extracted above in the
course of this order. The same would indicate that a
declaration is made to the effect that all the information
given by him are true and correct and that it is within his
knowledge that in the event of furnishing incorrect and
false information, proceedings can be initiated against
him. It is further declared that the choice for the posts
which have been given by him, he has fulfilled all the
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prescribed eligibility i.e. age limit, educational
qualifications, experience, physical measurement etc.
for those posts. It is also indicated that if he was found
ineligible at any stage of selection, his candidature can be
cancelled. The declaration is explicit that the choice of
preference to the post has been made by him since
according to him he has fulfilled the prescribed eligibility
criteria, including physical measurement . If that be the
position, the positive declaration made by the respondent
No.1 is that he satisfies the minimum eligibility of 168
cms. height required for the post he has preferred which
is the higher post than the next preference. In such
event, the authority concerned on perusal of the
application would presuppose that such physical
eligibility criteria is possessed by the candidate
concerned and he therefore has made his choice for the
post. In such event if the marks required for the said post
is obtained by the candidate, he would be included in the
main selection list. Though, the appointment is a
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subsequent act which would take place on verifying the
details and the candidate being found to be eligible, the
right of a candidate for selection will stand exhausted
once he is in the main list as per the Rule. While taking
note of this aspect, what is to be kept in view is that
Clause (c)(2) of the Rule4 (3) concerned employs the
phrase “selected in the main list” and “not appointed to
the post”.
17. The precedents relied on by the learned counsel for
respondent No.1 may now be noted. In R.L. Arora vs.
AIR 1964 SC 1230,
State of Uttar Pradesh and Ors.
the question arose relating to the new clause included in
Section 40(1) relating to acquisition of property for the
company and in that context while considering the same
it has been observed by this Court that literal
interpretation is not always the only interpretation of a
provision in a statute. In
Surjit vs. Mahanagar
Telephone Nigam Limited 2009 16 SCC 722, the issue
considered was with regard to the scope and extent of
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Rule 443 and 2 (pp) of the Telegraph Rules to consider
where the telephone standing in the name of one spouse
could be disconnected for nonpayment of the bill by the
other. In those circumstances, it was observed that in
order to interpret a statute one has to consider the
context in which it has been made and the purpose and
object it seeks to achieve. In
Union of India and Ors.
vs. Major General Madan Lal Yadav (Retd.) (1996) 4
SCC 127, the issue relates to the provisions under the
Army Act. The claim putforth by the Officer was taken
into consideration. The observation contained therein,
relied upon by the learned counsel for the respondent
No.1 herein to the effect that a man shall not take
advantage of his own wrong to gain the favourable
interpretation of law stated in the said decision, in fact
would go against the respondent No.1 himself.
18. None of the referred decisions would be of
assistance to respondent No.1 though on the principle of
law laid down in the said decisions there can be no
20
quarrel whatsoever. The learned counsel for respondent
No.1 has also placed before us the decision of the Gujarat
High Court in the case relating to recruitment process
which was considered in D.G. Dalal vs. State of
2GLR 1011. Nodoubt in the said case,
Gujarat (2002)
Rule 9 of Rules 1969 which was considered therein
provided with regard to single application for all posts
and indication of the preference to be provided as in the
present case, but the question arose therein since the
posts had fallen vacant. The issue therein was with
regard to the appointments being made on merit, based
on preference and also a waiting list being maintained
against such posts. Since, certain candidates selected for
the higher posts had not reported, vacancy had arisen
and to such vacant posts the candidates in the waiting
list were considered. In that view, a grievance was raised
by the candidates who were selected for the second
preferred posts since they had higher merit than the
persons who were in the waiting list for the higher post
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which had not been given to them at the first instance as
there was no vacancy and the next post based on
preference was given. It is in that circumstances where
the vacancies had arisen, the Rule had been considered
to indicate the manner in which the Rule is to be
operated. In fact, the Rule was under challenge in that
case. It has no application to the facts herein so as to
persuade us to accept the same in the present matter.
19. As noted, the selection for all the posts in the
instant case were through a single advertisement and
common examination. The selection process conducted
by the appellant for the benefit of the departments under
the government was not one post after the other on
completing the entire process to the higher post. Since, a
common examination was held and the common merit
list was prepared, the adjustment of the candidates were
based on their preference according to their order in the
merit list. The respondent No.1 having declared that he
possessed the physical eligibility for the post of Deputy
22
Superintendent of Police and since he had obtained the
requisite marks he was selected and placed in the main
selection list. It is true as indicated from the records that
another Scheduled Caste candidates who had secured
892 marks had been given the post of CMO as per the
preference indicated by him. When such is the process of
selection, if the respondent No.1 who had made
declaration about the correctness of his eligibility and
secured the selection to be placed in the main list for the
said post, he has to blame himself if found ineligible
since his height was admittedly 162 cms. which was in
fact within his knowledge. He ought not to have exercised
the preference. But having acted so at that stage, if he
seeks appointment to the next preferred post and such
request is accepted, it will result in displacing a
candidate who having made a truthful declaration had
indicated the appropriate preference, who is selected and
placed in the main list. Therefore, in such circumstance,
if any interference is made in the process of selection,
apart from the fact that it could interfere with the
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administrative process would also cause hardship to the
candidates who have already been appointed and are not
before this Court. In the present facts and circumstances,
the Rule concerned provides for a definite process, which
was also depicted in the advertisement calling for
applications. The Rule is not under challenge. The
candidate concerned had applied without demur and also
furnished a declaration with regard to correctness of
details provided. He cannot thereafter turn around to
seek alteration of the position to the detriment of others.
20. In that view, the High Court was not justified in its
conclusion. We accordingly, set aside the order dated
03.01.2019 passed in W.P. No.20855/2017 and the order
dated 08.11.2019 passed in W.A. No.474/2019.
Consequently, the Writ Petition in W.P. No.20855/2017
before the High Court of Madhya Pradesh Bench at
Indore stands dismissed.
21. The above appeal, is accordingly, allowed with no
order as to costs.
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22. Pending application, if any, shall stand disposed of.
……………..………..………….…………….J.
(DR DHANANJAYA Y CHANDRACHUD )
………………………...……………………….J.
(A.S. BOPANNA)
New Delhi,
December 17, 2021
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