Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
2025 INSC 425
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. OF 2025
[ARISING OUT OF SLP (C) NOS.7930-7931 OF 2020]
JOMON K.K. … APPELLANT(S)
VERSUS
SHAJIMON P. & ORS. ETC. … RESPONDENT(S)
J U D G M E N T
DIPANKAR DATTA, J.
T HE APPEAL
1. These appeals, by special leave, take exception to the common
nd
judgment and order dated 2 December, 2019 of the High Court of
1
Kerala at Ernakulam dismissing the appellant's writ petitions .
ACTS
F
2. Facts giving rise to these appeals, which are not in dispute, are
these:
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a. An advertisement dated 17 October, 2012 was published by
2
the Secretary of Kerala Public Service Commission inviting
applications from interested candidates for filling up 12 vacant
posts of “Boat Lascar” under the Kerala State Water Transport
Signature Not Verified
Digitally signed by
rashmi dhyani pant
Date: 2025.04.02
16:32:28 IST
Reason:
1
O.P.(KAT) No. 153 of 2019 and O.P.(KAT) No. 154 of 2019
2
KPSC
1
3
Department . The method of appointment was indicated as
‘direct recruitment’ and the qualifications stipulated therein
read as follows:
7. Qualifications:
(1) Literacy in Malayalam or Tamil or Kannada
(2) Possession of Current Lascar's Licence
Note :- Candidates should possess current Lascar's Licence on
the last date for receipt of applications, during Practical Test
and Interview also.
4
b. Incidentally, in terms of the Special Rules of 1975 for the
Kerala State Water Transport Subordinate Service (Operating
5
Wing) , the service would consist of 3 classes of officers. While
Class I comprised 2 categories, Classes II and III comprised 3
categories, viz. Category 1, Category 2 and Category 3.
Syrang, Driver and Lascar are listed at Categories 1, 2 and 3,
respectively, of Class III. In terms of the Schedule appended
to the Special Rules, the post of Syrang can be filled up either
by direct recruitment or by promotion from among Lascars in
the ratio of 1:1 whereas appointment on the post of Lascar is
entirely by direct recruitment. It is also provided in the
Schedule that while literacy in Malayalam or Tamil or Kannada
is the common qualification required for appointment as
Syrang as well as Lascar, an individual aspiring for the post of
3
the department
4
the Special Rules
5
Subordinate Service
2
Syrang must possess current Syrang’s licence while an
individual aspiring for appointment on the post of Lascar is
similarly required to possess a current Lascar’s Licence.
c. The licence noted above is a certificate of competency that is
referred to in Chapter III of the Kerala Inland Vessels Rules,
2010. In terms thereof, any aspiring individual fulfilling the
qualifications statutorily prescribed is issued a certificate of
competency upon succeeding in the “viva voce examination”
that is conducted either for a Syrang’s licence or a Lascar’s
licence. Inter alia , while a person aspiring for a Syrang’s
th th
licence is required to be 10 standard pass, it is 8 standard
pass for anyone aspiring for a Lascar’s licence.
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d. By a letter dated 9 October, 2012 addressed to the Director
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of the Department, the Director of Ports conveyed to the
following effect:
…
This is to communicate formally that the Syrang, Master
and Driver Certificate issued by the Chief Examiner under
the KIV Rules· 2010 is a certificate superior to Lascar
Certificate. Hence those who possess Syrang, Master and
Driver Certificate will be proficient in Lascar work also. Thus
Syrang and Master Certificate can be considered more than
equivalent to Lascar Certificate and such persons are
eligible for the job 'lacer' (sic, lascar) also.
This communication is issued based on the representation
received from a few candidates who applied to the Public
Service Commission for Lascar job in order to enable them
to complete the application process. Copy of their
representation is enclosed. However the final selection may
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the Director
3
be done based on practical test, on the skills required, type
of vessel and other requirements of the organization.
…
e. The appellant was the holder of a Syrang’s licence, which was
valid when he noticed the advertisement.
f. Perceiving that possession of a Syrang’s licence makes him
eligible to apply for the post of Lascar which, incidentally,
happens to be the feeder post for promotion to the post of
Syrang, the appellant offered his candidature and acquitted
himself creditably resulting in his name figuring at serial
number 1 (OX category) in the “Ranked List” which was
circulated vide No. 257/17/ERVI and brought into force with
nd
effect from 22 February, 2017. He had secured 45.67 marks.
Based on such rank, the Secretary, KPSC informed the
nd
appellant vide letter dated 2 May, 2017 as follows:
…
You are informed that you have been advised for
recruitment as Boat Lascar on Rs.8,960 -14,260/- in the
above Department against BC Turn. The selection is
subject to Rule 3(c) and 10(b) of the Kerala State and
Subordinate Service Rules, 1958.
Further instructions will be issued to you in due course by
the above Department.
…
g. While the appellant was awaiting an offer of appointment, on
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8 May, 2017 and 27 July, 2017, two sets of original
applications under Section 19 of the Administrative Tribunals
4
7
Act, 1985 were filed before the Thiruvananthapuram and
8
Ernakulam Benches of the Kerala Administrative Tribunal .
h. The prayer in O.A. No. 857 of 2017 was for a declaration that
inclusion of ineligible candidates, who do not possess the
essential qualification, is oppressive, arbitrary and illegal; a
direction be issued to restructure the “Ranked List” by
removing all such ineligible candidates; and to pass incidental
orders. In OA (EKM) 1566 of 2017, similarly, the Tribunal was
urged to declare candidates who did not have valid and current
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Lascar’s licence as on 17 October, 2012, i.e., the last date for
receipt of applications, as not eligible to be included in the
“Ranked List” as well as for issuance of a direction to KPSC to
recast the “Ranked List” by excluding the candidates not
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possessing valid Lascar’s licence on 17 October, 2012.
i. Importantly, in OA No. 857 of 2017, no private party figured
in the array of respondents and there were only three official
respondents (Director of the department, the Director and
KPSC). In OA (EKM) No. 1566 of 2017, apart from the official
respondents, only 5 of the several selected candidates were
joined as respondents. The appellant was not one among the
five private respondents who were impleaded in the said
application.
7
O.A. No. 857 of 2017 and O.A. (EKM) No. 1566 of 2017
8
Tribunal
5
j. During the pendency of the original applications before the
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Tribunal, the appellant came to be appointed on 28 July, 2017
as “Boat Lascar”.
k. The reply statement filed by the Director before the Tribunal
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on 20 February, 2018 is extracted hereunder:
“2. Port Department is implementing KIV Rules 2010.
Director of Ports is the competent Authority to oversee
the various regulations, under the provisions of KIV Rules
2010. KIV Rules insist that the MASTER, DRIVER AND
SYRANG certificates will be issued only after 2 years from
the date of issue of Lascar certificate by the Chief
Examiner, Department of Ports. So the persons who got
competency certificates for Master, Driver and Syrang
also have sufficient eligibilities to be the boat lascar. The
above competency certificate holders are also eligible to
apply for the post of Lascar and it is stated by the Director
of Ports in the letter No.B3-389/2011 dated 9.10.2012.”
l. In due course, the original applications were heard by the
th 9
Tribunal. Vide its judgment and order dated 9 March, 2018 ,
the Tribunal allowed both the original applications and directed
KPSC to recast the “Ranked List” and to cancel the advice to
appoint ineligible candidates.
m. Acting in pursuance of the Tribunal’s order, KPSC issued a show
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cause notice dated 31 July, 2018 to the appellant calling upon
him to explain why the advice for his appointment be not
treated as cancelled. The appellant responded thereto by his
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reply dated 10 August, 2018. Thereafter, KPSC issued an
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order dated 24 October, 2018 cancelling the advice for
9
Tribunal’s order
6
appointment of the appellant following which the Director
cancelled the appellant's appointment as “Boat Lascar” by his
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order dated 27 October, 2018.
rd
n. On 3 November, 2018, the appellant challenged the
Tribunal’s order before the High Court in separate writ
petitions. However, a Division Bench of the High Court by the
common impugned judgment and order dismissed such writ
petitions.
C ONTENTIONS OF THE PARTIES
3. Mr. P. N. Ravindran, learned senior counsel for the appellant, argued
that both the Tribunal in allowing the original applications as well as
the High Court in dismissing the writ petitions fell in error in not
appreciating that a higher qualification could never have been
regarded as a disqualification for appointment on the post of Lascar.
4. Mr. Ravindran relied on the decisions in Parvaiz Ahmed Parry v.
10
State of Jammu and Kashmir and Chandra Shekhar Singh
11
and Others v. State of Jharkhand in support of the contention
that a candidate having a higher degree in the subject prescribed
under the advertisement cannot be disqualified by reason of
ineligibility for not possessing the required degree.
5. Mr. Ravindran further argued that by the time the Tribunal was
moved by the unsuccessful candidates, the appellant had not been
10
(2015) 17 SCC 709
11
2025 SCC OnLine SC 595
7
appointed. However, he did figure in the “Ranked List”. During the
pendency of the original applications, the appellant came to be
appointed. Despite such appointment, he was not impleaded as a
respondent in either of the two original applications filed before the
Tribunal. When the original applications were filed, seeking exclusion
of candidates holding Syrang’s licence and recasting of the “Ranked
List”, without the appellant being included as a respondent, no
adverse order could have been passed by the Tribunal qua him.
Since the appellant was not impleaded as a respondent in the
original applications, the same were defective and no relief could
have been granted to the unsuccessful candidates/original
applicants.
6. Mr. Ravindran also submitted that assuming this Court were not
inclined to accept the claim of the appellant that he could have been
considered for selection despite not possessing a current Lascar’s
licence, it was contended that this was an eminently fit case for
exercise of power by this Court under Article 142 of the Constitution.
Reliance was placed on the Constitution Bench decision in Supreme
12
Court Bar Association vs Union Of India and Anr. .
7. Per contra , Mr. Nair, learned counsel for KPSC, contended that the
appellant and similarly placed candidates having Syrang’s licence
were considered for selection in view of the letter of the Director
th
dated 9 October, 2012. However, the Tribunal having held that
12
1998 4 SCC 409
8
candidates not possessing current Lascar’s licence could not have
been considered for selection and having directed KPSC to recast
the “Ranked List”, the same was duly complied with resulting in
cancellation of the advice for appointment of the appellant.
8. Mr. Nair relied on the decision in District Collector & Chairman,
Vizianagaram Social Welfare Residential School Society v. M.
13
Tripura Sundari Devi for the proposition that when an
advertisement mentions a particular qualification and an
appointment is made in disregard of the same, it is not a matter
only between the appointing authority and the appointee concerned:
the aggrieved are all those who had similar or even better
qualifications than the appointee or appointees but who had not
applied for the post because they did not possess the qualifications
mentioned in the advertisement.
9. According to him, had it been known that anyone not having a
Lascar’s licence but having a Syrang’s licence would be eligible for
consideration for appointment on the post of Lascar, others having
Syrang’s certificate could also have applied thereby enlarging the
zone of consideration. However, keeping the process confined only
to a select few and not extending opportunity to all others similarly
situate like the appellant would contravene Article 16 of the
Constitution and also amount to a fraud on public.
13
(1990) 3 SCC 655
9
14
10. P.M. Latha and Anr. v. State of Kerala and ors. was also cited
by Mr. Nair in support of his contention that anyone holding a
Syrang’s licence could not have been considered on the ground of
being more qualified than the holder of a Lascar's licence, and that
whether Syrang's licence could be considered as appropriate for
recruitment of a Lascar is a question which ought to be left to be
considered by the authorities concerned. Since, in P.M. Latha
(supra), this Court did not consider candidates having B. Ed degree
as qualified for the vacancies advertised, which required recruitment
to be made from candidates with TTC qualifications, he urged that
dismissal of the appeal is the only logical conclusion.
11. Mr. Nishe Rajan Shonker, learned counsel for the State of Kerala,
adopted the submissions of Mr. Nair.
Q UESTION OF LAW
12. The central question of law arising for decision on this appeal is,
whether the appellant who did not hold a current Lascar's licence
but was the holder of a Syrang's licence could have been considered
qualified to participate in the recruitment process as well as
appointed.
13. Certain notable features having a bearing on the issue to be decided
by us are these:
14
2003 3 SCC 541
10
th
a. The advertisement dated 15 September, 2012 did stipulate
that only those holding a current Lascar's licence are eligible
to apply. At the same time, it did not specifically say that
anyone holding a Syrang’s licence or a licence higher than a
Lascar’s licence is not eligible to apply.
b. According to the Director, a Syrang’s licence is something
superior to a Lascar’s licence and that holders of Syrang’s
licence can be considered more than equivalent to Lascar’s
licence, thus, being eligible for the job of Lascar also.
c. A communication to the above effect was made by the Director
to KPSC, not on his own, but based on the representation
received from a few candidates who, presumably having
Syrang’s licences, had applied for the post of Lascar and
wanted to compete with aspirants having Lascar’s licence.
d. Despite the appellant being selected, his name figuring in the
“Ranked List”, he being recommended by the Secretary, KPSC
nd
on 2 May, 2017 for appointment as “Boat Lascar” as well as
th
his appointment on 28 July, 2017 during the pendency of the
original applications, he was not impleaded as respondent
therein.
e. The original applicants could not have feigned ignorance as to
the identity of candidates possessing Syrang’s licence who
came to be appointed; also, the Tribunal did not take the pain
of passing appropriate orders to have them impleaded. Thus,
11
the Tribunal’s order adverse to the interest of the appellant
was effectively passed behind his back.
f. Despite there being a reference in the show cause notice dated
st
31 July, 2018 to the Tribunal’s order, the appellant chose to
reply to the show cause notice instead of challenging the such
order before the High Court either under Article 226 or 227 of
the Constitution of India.
g. Once the appellant’s appointment as “Boat Lascar” was
th
cancelled on 27 October, 2018 by the Director, such order
provided him a cause of action to move an original application
before the Tribunal under Section 19 of the 1985 Act; however,
instead of moving the Tribunal, the appellant moved the High
Court in its writ jurisdiction, admittedly, when the Tribunal’s
order had been acted upon.
NALYSIS AND EASONS
A R
14. In our considered opinion, the High Court would have been justified
in dismissing the writ petitions of the appellant at the threshold on
the ground that the order of cancellation had intervened in the
meanwhile providing a cause of action for him to move the Tribunal.
In such original application, he could have even prayed for recall of
the Tribunal’s order on the ground of the same having been passed
behind his back and upon such recall, to hear him on the merits of
the original applications. Such a course of action was available to
the appellant in terms of the decisions of this Court in K. Ajit Babu
12
15 16
v. Union of India and Rama Rao v. M. G. Maheshwara Rao .
However, the High Court examined the appellant’s claim on merits
leading to dismissal of his writ petitions and we too having been
addressed on the merits of the appeals, it would be just and fair to
answer the question that we have formulated above without taking
too technical a view.
15. First, we propose to consider the argument touching non-joinder of
the appellant in the proceedings be fore the Tribunal though,
undoubtedly, he was a necessary party.
16. The effect of non-joinder of a necessary party in proceedings where
an order is passed adverse to the interest of the non-party was
considered by a co-ordinate bench of this Court in Ranjan Kumar
17
v. State of Bihar .
17. The decision in Ranjan Kumar (supra) was followed by the decision
18
in Kulwant Singh v. Dayaram , where promotion to the post of
head constables in Chandigarh Police was the subject matter of
consideration. This Court held that after appearing in a competitive
examination and upon being selected, the appointees become an
identified category and that if the rights of such appointees forming
part of such identified category are to be affected by any
determination, the situation commands that they should be
15
(1997) 6 SCC 473
16
(2007) 14 SCC 54
17
(2014) 16 SCC 187
18
2015 3 SCC 177
13
impleaded in the proceedings as necessary parties. The non-joinder
now permits them to take the plea that the impugned order does
not bind them.
18. The decisions in Ranjan Kumar (supra) and Kulwant Singh
(supra) are authorities for the proposition that selectees who are
appointed or promoted must be arrayed as parties in the original
proceedings where their selections are challenged. Kulwant Singh
(supra) has taken a step further and ruled that mere awareness of
pendency of litigation does not make the order passed by the
Court/Tribunal interfering with the selection binding upon such
appointees or promotees.
19. Though there can be little quarrel with the law laid down in Ranjan
Kumar (supra) and Kulwant Singh (supra) and considering what
has been argued by Mr. Ravindran as a proposition of law, noted
above, to be correct, what stands out is that the appellant did not
immediately challenge the Tribunal’s order and rested on his oars to
throw a challenge till his service came to be terminated. In fact, he
took a chance of favourable consideration of his case by responding
to the show cause. Having taken a chance and not being successful,
he cannot, thereafter, succeed before us on the ground of his non-
joinder as a necessary party. Having not initiated appropriate legal
action that the law permitted him to take, he can get back his service
only if the primary contention raised by Mr. Ravindran succeeds.
14
20. Next, turning to the crux of the issue, it is absolutely necessary to
bear in mind that though the posts of Syrang and Lascar are included
in Class III of the Subordinate Service, the requisite qualifications
for appointment on such posts as ordained by the Special Rules are
different. Moreover, it is specifically ordained by Rule 6 of the Special
Rules as follows:
“ 6. Other Qualifications. - No person shall be eligible for
appointment to the categories specified in column (1) of
the Table below by the method specified in column (2)
unless he possesses the qualifications prescribed in the
corresponding entry in column (3) thereof. ”
21. As noted in the factual narrative, possession of a current Lascar’s
licence is an essential qualification for anyone aspiring for the post
of Lascar. This is what is laid down in column (3), i.e., the
qualifications required; and going by what is said therein read with
Rule 6, there can be no gainsaying that apart from those having a
current Lascar’s licence, none else is eligible. The word “current” is
also significant in the sense that the Rules insist on a subsisting
licence, i.e., a certificate of competency, which is valid and operative
during the time the last date for receiving applications intervenes.
22. The advertisement did not require anything else other than what the
Special Rules require. The absence of express mention that those
holding a Syrang’s licence or a Driver’s licence which, according to
the Director, are superior to a Lascar’s licence, is insignificant,
irrelevant and immaterial having regard to the clear terms of Rule 6
(supra).
15
23. Viewed from a different angle, on a conjoint reading of Rule 6 of the
Special Rules and the advertisement, we find both mentioning a
particular qualification, i.e., a current Lascar's licence, which each
aspirant has to possess for being considered eligible to participate
in the process of selection, thereby creating a distinct class and it is
aspirants falling in such class alone who could have applied for being
considered. Thus, any aspirant, even though possessing a Syrang’s
licence or a Driver’s licence not being part of such distinct class,
could not have been considered eligible. The classification has not
been shown to be and is not unreasonable.
24. True it is, from the reply statement of the Director filed before the
Tribunal and also from the 2010 Rules, it does appear that the holder
of a Syrang’s licence is mandatorily required to obtain and have a
Lascar’s licence for 2 years and, therefore, without having a Lascar’s
licence one cannot apply for a Syrang’s licence. By the same
analogy, it could be presumed that the holder of a Syrang’s licence
is having the requisite eligibility to be a Lascar. However, what turns
the tide against the appellant is the requirement of the ‘current’
Lascar’s licence, discussed above, which the appellant did not have
on the last date for receiving applications.
th
25. We have further seen from the letter of the Director dated 9
October, 2010 addressed to KPSC that it was not voluntary; rather,
it was at the behest of candidates who did not possess current
Lascar’s licence. It can well be presumed that the Director buckled
16
under pressure. However, notwithstanding that, qualifications
statutorily laid down could not have been diluted by what the
Director felt should be considered by KPSC and, therefore, it is the
statutorily prescribed qualifications that should prevail.
26. Mr. Nair is also right in referring to us the decision in M. Tripura
Sundari Devi (supra). Although in such decision it was held that it
amounts to a fraud on public to appoint candidates with
qualifications inferior to the qualifications advertised, which is not
precisely the case here because the appellant has higher
qualifications than what was required, yet, the other principle of law
flowing from such decision is squarely applicable. It has neither been
th
shown that the Director’s letter dated 9 October, 2012 was given
wide publicity nor has it been shown by the appellant that KPSC had
issued any corrigendum vide public notice whereby the zone of
consideration was enlarged permitting holders of a Syrang’s licence
to participate in the process. We, thus, hold drawing inspiration from
the said decision that the aggrieved are all those who had similar or
even better qualifications than the appellant but who had not applied
for the post because they were unaware of the fact that persons not
having a current Lascar’s licence would also be eligible to apply and
compete in the process. Equality of opportunity in matters of public
employment being a sine qua non for a fair and transparent selection
process, such equality is conspicuously absent in the present case.
17
27. There is one other important aspect which also cannot be lightly
overlooked. We shall assume for a moment that though the process
was commenced for appointment on vacant posts of Lascar, there
was no illegality in persons having Syrang’s licence being permitted
to participate. Of course, there could be aspirants holding Lascar’s
licence in sufficient numbers who might not have the higher
qualifications necessary for even appearing for a viva voce to aim at
possessing a certificate of competency as Syrang. Those aspirants,
holding a Lascar’s licence, might not also be so capable and/or
competent for obtaining a Syrang’s licence. After all, all individuals
are not blessed with the same level of intelligence, human abilities
and intellect. The distribution of innate abilities and intellectual
prowess being far from uniform, resulting in a diverse spectrum of
human potential, it is axiomatic that aspirants having only a Lascar’s
licence can never be considered for direct recruitment on any post
in Class III of the Subordinate Service other than a Lascar. It is quite
but natural that in the matter of observation, perception and
memorisation of details of principles of navigation, and skill in
respect of seamanship, there would be significant differences in the
faculties of different individuals. If persons holding Syrang's licence
- who are obviously better equipped than persons holding Lascar’s
licence - are allowed to apply and participate in the process for
appointment on the post of Lascar, the probability of the persons
holding Lascar's licence being outperformed by the persons holding
18
Syrang's licence would be quite high. It could also be a distinct
possibility where all the vacant posts of Lascar are filled up by
persons having Syrang's licence but not having a current Lascar’s
licence as per the statutory requirement. That would pose a real
difficulty for persons not so fortunate and lacking in higher
intelligence, abilities and intellect, for, they would cease to have a
level playing field of competing with other similarly qualified
candidates, and left to compete with candidates having higher
qualifications despite the zone of consideration having been specially
carved out for holders of current Lascar’s licence. It is not that the
holders of Syrang’s licence are left in the lurch. Those having
Syrang’s licence could well compete for appointment on the post of
Syrang in the 50% direct recruitment quota along with others having
current Syrang’s licence. If, in case, all the vacant posts of Lascar
are filled up by persons having Syrang’s licence and such holders of
Syrang’s licence do not participate in the process for direct
recruitment to the post of Syrang, it is fairly likely that the persons
holding Lascar’s licence would never secure any public employment.
That could not have been the intention of a welfare State.
28. Also, it cannot be gainsaid that not only the qualifications but the
nature of duties required to be performed and the nature of service
to be rendered by a Lascar and a Syrang are different. Merely
because the post of Lascar is a feeder post for promotion to the post
19
of Syrang does not per se make the holder of a Syrang’s licence
qualified for the job of a Lascar. Thus, nothing much turns on it.
29. Law is well-settled that an appointment made contrary to the
statute/statutory rule would be void [see: Pramod Kumar v. U.P.
19
Secondary Education Services Commission ].
30. Based on such consideration, we are ad idem with the Division Bench
of the High Court that KPSC could not have included candidates with
licences other than a Lascar's licence in the “Ranked List” and
proceed to recommend those candidates for appointment.
31. On merits, therefore, no legally protected right of the appellant
having been affected by the impugned action, he has no valid claim.
32. We have considered the decisions of this Court in Parvaiz Ahmed
Parry (supra) and Chandra Shekhar Singh (supra).
33. In Parvaiz Ahmed Parry (supra) the appellant therein possessed
degrees in BSc with Forestry as one of his major subjects as well as
MSc (Forestry). The qualification prescribed in the Advertisement
was “ BSc (Forestry) or equivalent from any university recognised by
ICAR ”. This Court held that the appellant’s qualifications were
equivalent to the minimum prescribed qualifications and should be
considered for the concerned post.
34. Chandra Shekhar Singh (supra) was on the question of whether
‘degree’ as mentioned in the advertisement therein included a post-
graduate degree, which the appellants therein possessed. This Court
19
(2008) 7 SCC 153
20
applying the golden rule of interpretation held that the word ‘degree’
would include within its scope and ambit all three degrees –
bachelor's degree, master’s degree and a doctorate degree – unless
a specific expulsion has been made.
35. The said decisions are, thus, distinguishable on facts.
36. We hasten to add that whether or not the action of the employer to
exclude an aspirant from the process of selection (on the ground
that either he is over qualified for a particular post or has
qualifications which, being over and above what is ordained by
statutory rules or rules framed under the proviso to Rule 309 of the
Constitution, does not match the qualification specifically required)
is justified has to be decided considering the rules governing the
selection, the qualifications prescribed, the nature of duty to be
performed, the nature of service to be rendered and a host of other
factors. It has to be remembered that, at times, the employer’s need
to have the right people at the right place, and not always the higher
qualified, has to be conceded. We know of decisions holding that
over-qualification cannot be a disqualification since such an
approach amounts to discouraging the acquisition of qualifications
on the one hand and on the other, such an approach could be seen
as arbitrary, discriminatory and not in national interest. However,
this principle cannot be put in a straitjacket imposing rigid or
inflexible rules or norms. Lack of public employment opportunities
in sufficient numbers may force even a Master degree holder to
21
apply for the job of a peon but, if he is appointed upon his application
being favourably considered, what happens to the aspirants who
th
have not had the means of pursuing study beyond the 12
standard? Do they remain unemployed for ever, if all or majority of
the posts of peon are filled up by such degree holders? What
happens if the Master degree holder, in pursuit of greener pastures,
leaves the post of Peon for a better and secured higher job
commensurate with his qualifications after a couple of years? Does
it not, in such a case, burden the public exchequer by requiring the
employer to initiate a fresh selection process? Is not the State, as a
model employer, obliged to ensure that the posts of peon are filled
up only by those having the basic qualification, and not by over
qualified candidates, for sub-serving the common good? Does not
the State have the obligation to strive to ensure that all citizens have
adequate means of livelihood? These are questions which no Court
can afford to ignore. We end by saying that each case that comes
before the Court has to be decided on its own peculiar facts and the
problem that it presents for resolution and that there can be no
universally accepted rule that every time, a higher qualified
candidate is to be preferred to a candidate who matches the
essential qualification required for the post.
37. It is now time to consider Mr. Ravindran’s final submission that this
is an eminent case for exercising powers under Article 142 of the
Constitution.
22
20
38. This Court in Ashok Kumar Sonkar v. Union of India held that
if an appointment is illegal, it is non-est in the eye of law and
rendering the appointment a nullity and principles of equity in a case
of such nature would have no role to play; also that, sympathy
should not be misplaced.
39. Exercise of power under Article 142 of the Constitution would have
been warranted in the present case if palpable injustice were
demonstrated. Unfortunately for the appellant, despite the
assiduous endeavour of Mr. Ravindran, we have consciously decided
to confine our role to being the dispute-settlors.
40. We are of the considered opinion that the appellant having gained
entry through a process which was not legal and valid, this is not a
fit and proper case where this Court ought, in exercise of its power
under Article 142 of the Constitution, to ignore the illegality and
invalidity to come to his rescue.
C ONCLUSION
41. The appeals, accordingly, fail and are dismissed. No costs.
42. Pending application, if any, stands disposed of.
………..…………………J.
(DIPANKAR DATTA)
……………………………J.
(MANMOHAN)
NEW DELHI;
APRIL 02, 2025.
20
(2007) 4 SCC 54
23
IN THE SUPREME COURT OF INDIA
2025 INSC 425
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. OF 2025
[ARISING OUT OF SLP (C) NOS.7930-7931 OF 2020]
JOMON K.K. … APPELLANT(S)
VERSUS
SHAJIMON P. & ORS. ETC. … RESPONDENT(S)
J U D G M E N T
DIPANKAR DATTA, J.
T HE APPEAL
1. These appeals, by special leave, take exception to the common
nd
judgment and order dated 2 December, 2019 of the High Court of
1
Kerala at Ernakulam dismissing the appellant's writ petitions .
ACTS
F
2. Facts giving rise to these appeals, which are not in dispute, are
these:
th
a. An advertisement dated 17 October, 2012 was published by
2
the Secretary of Kerala Public Service Commission inviting
applications from interested candidates for filling up 12 vacant
posts of “Boat Lascar” under the Kerala State Water Transport
Signature Not Verified
Digitally signed by
rashmi dhyani pant
Date: 2025.04.02
16:32:28 IST
Reason:
1
O.P.(KAT) No. 153 of 2019 and O.P.(KAT) No. 154 of 2019
2
KPSC
1
3
Department . The method of appointment was indicated as
‘direct recruitment’ and the qualifications stipulated therein
read as follows:
7. Qualifications:
(1) Literacy in Malayalam or Tamil or Kannada
(2) Possession of Current Lascar's Licence
Note :- Candidates should possess current Lascar's Licence on
the last date for receipt of applications, during Practical Test
and Interview also.
4
b. Incidentally, in terms of the Special Rules of 1975 for the
Kerala State Water Transport Subordinate Service (Operating
5
Wing) , the service would consist of 3 classes of officers. While
Class I comprised 2 categories, Classes II and III comprised 3
categories, viz. Category 1, Category 2 and Category 3.
Syrang, Driver and Lascar are listed at Categories 1, 2 and 3,
respectively, of Class III. In terms of the Schedule appended
to the Special Rules, the post of Syrang can be filled up either
by direct recruitment or by promotion from among Lascars in
the ratio of 1:1 whereas appointment on the post of Lascar is
entirely by direct recruitment. It is also provided in the
Schedule that while literacy in Malayalam or Tamil or Kannada
is the common qualification required for appointment as
Syrang as well as Lascar, an individual aspiring for the post of
3
the department
4
the Special Rules
5
Subordinate Service
2
Syrang must possess current Syrang’s licence while an
individual aspiring for appointment on the post of Lascar is
similarly required to possess a current Lascar’s Licence.
c. The licence noted above is a certificate of competency that is
referred to in Chapter III of the Kerala Inland Vessels Rules,
2010. In terms thereof, any aspiring individual fulfilling the
qualifications statutorily prescribed is issued a certificate of
competency upon succeeding in the “viva voce examination”
that is conducted either for a Syrang’s licence or a Lascar’s
licence. Inter alia , while a person aspiring for a Syrang’s
th th
licence is required to be 10 standard pass, it is 8 standard
pass for anyone aspiring for a Lascar’s licence.
th
d. By a letter dated 9 October, 2012 addressed to the Director
6
of the Department, the Director of Ports conveyed to the
following effect:
…
This is to communicate formally that the Syrang, Master
and Driver Certificate issued by the Chief Examiner under
the KIV Rules· 2010 is a certificate superior to Lascar
Certificate. Hence those who possess Syrang, Master and
Driver Certificate will be proficient in Lascar work also. Thus
Syrang and Master Certificate can be considered more than
equivalent to Lascar Certificate and such persons are
eligible for the job 'lacer' (sic, lascar) also.
This communication is issued based on the representation
received from a few candidates who applied to the Public
Service Commission for Lascar job in order to enable them
to complete the application process. Copy of their
representation is enclosed. However the final selection may
6
the Director
3
be done based on practical test, on the skills required, type
of vessel and other requirements of the organization.
…
e. The appellant was the holder of a Syrang’s licence, which was
valid when he noticed the advertisement.
f. Perceiving that possession of a Syrang’s licence makes him
eligible to apply for the post of Lascar which, incidentally,
happens to be the feeder post for promotion to the post of
Syrang, the appellant offered his candidature and acquitted
himself creditably resulting in his name figuring at serial
number 1 (OX category) in the “Ranked List” which was
circulated vide No. 257/17/ERVI and brought into force with
nd
effect from 22 February, 2017. He had secured 45.67 marks.
Based on such rank, the Secretary, KPSC informed the
nd
appellant vide letter dated 2 May, 2017 as follows:
…
You are informed that you have been advised for
recruitment as Boat Lascar on Rs.8,960 -14,260/- in the
above Department against BC Turn. The selection is
subject to Rule 3(c) and 10(b) of the Kerala State and
Subordinate Service Rules, 1958.
Further instructions will be issued to you in due course by
the above Department.
…
g. While the appellant was awaiting an offer of appointment, on
th th
8 May, 2017 and 27 July, 2017, two sets of original
applications under Section 19 of the Administrative Tribunals
4
7
Act, 1985 were filed before the Thiruvananthapuram and
8
Ernakulam Benches of the Kerala Administrative Tribunal .
h. The prayer in O.A. No. 857 of 2017 was for a declaration that
inclusion of ineligible candidates, who do not possess the
essential qualification, is oppressive, arbitrary and illegal; a
direction be issued to restructure the “Ranked List” by
removing all such ineligible candidates; and to pass incidental
orders. In OA (EKM) 1566 of 2017, similarly, the Tribunal was
urged to declare candidates who did not have valid and current
th
Lascar’s licence as on 17 October, 2012, i.e., the last date for
receipt of applications, as not eligible to be included in the
“Ranked List” as well as for issuance of a direction to KPSC to
recast the “Ranked List” by excluding the candidates not
th
possessing valid Lascar’s licence on 17 October, 2012.
i. Importantly, in OA No. 857 of 2017, no private party figured
in the array of respondents and there were only three official
respondents (Director of the department, the Director and
KPSC). In OA (EKM) No. 1566 of 2017, apart from the official
respondents, only 5 of the several selected candidates were
joined as respondents. The appellant was not one among the
five private respondents who were impleaded in the said
application.
7
O.A. No. 857 of 2017 and O.A. (EKM) No. 1566 of 2017
8
Tribunal
5
j. During the pendency of the original applications before the
th
Tribunal, the appellant came to be appointed on 28 July, 2017
as “Boat Lascar”.
k. The reply statement filed by the Director before the Tribunal
th
on 20 February, 2018 is extracted hereunder:
“2. Port Department is implementing KIV Rules 2010.
Director of Ports is the competent Authority to oversee
the various regulations, under the provisions of KIV Rules
2010. KIV Rules insist that the MASTER, DRIVER AND
SYRANG certificates will be issued only after 2 years from
the date of issue of Lascar certificate by the Chief
Examiner, Department of Ports. So the persons who got
competency certificates for Master, Driver and Syrang
also have sufficient eligibilities to be the boat lascar. The
above competency certificate holders are also eligible to
apply for the post of Lascar and it is stated by the Director
of Ports in the letter No.B3-389/2011 dated 9.10.2012.”
l. In due course, the original applications were heard by the
th 9
Tribunal. Vide its judgment and order dated 9 March, 2018 ,
the Tribunal allowed both the original applications and directed
KPSC to recast the “Ranked List” and to cancel the advice to
appoint ineligible candidates.
m. Acting in pursuance of the Tribunal’s order, KPSC issued a show
st
cause notice dated 31 July, 2018 to the appellant calling upon
him to explain why the advice for his appointment be not
treated as cancelled. The appellant responded thereto by his
th
reply dated 10 August, 2018. Thereafter, KPSC issued an
th
order dated 24 October, 2018 cancelling the advice for
9
Tribunal’s order
6
appointment of the appellant following which the Director
cancelled the appellant's appointment as “Boat Lascar” by his
th
order dated 27 October, 2018.
rd
n. On 3 November, 2018, the appellant challenged the
Tribunal’s order before the High Court in separate writ
petitions. However, a Division Bench of the High Court by the
common impugned judgment and order dismissed such writ
petitions.
C ONTENTIONS OF THE PARTIES
3. Mr. P. N. Ravindran, learned senior counsel for the appellant, argued
that both the Tribunal in allowing the original applications as well as
the High Court in dismissing the writ petitions fell in error in not
appreciating that a higher qualification could never have been
regarded as a disqualification for appointment on the post of Lascar.
4. Mr. Ravindran relied on the decisions in Parvaiz Ahmed Parry v.
10
State of Jammu and Kashmir and Chandra Shekhar Singh
11
and Others v. State of Jharkhand in support of the contention
that a candidate having a higher degree in the subject prescribed
under the advertisement cannot be disqualified by reason of
ineligibility for not possessing the required degree.
5. Mr. Ravindran further argued that by the time the Tribunal was
moved by the unsuccessful candidates, the appellant had not been
10
(2015) 17 SCC 709
11
2025 SCC OnLine SC 595
7
appointed. However, he did figure in the “Ranked List”. During the
pendency of the original applications, the appellant came to be
appointed. Despite such appointment, he was not impleaded as a
respondent in either of the two original applications filed before the
Tribunal. When the original applications were filed, seeking exclusion
of candidates holding Syrang’s licence and recasting of the “Ranked
List”, without the appellant being included as a respondent, no
adverse order could have been passed by the Tribunal qua him.
Since the appellant was not impleaded as a respondent in the
original applications, the same were defective and no relief could
have been granted to the unsuccessful candidates/original
applicants.
6. Mr. Ravindran also submitted that assuming this Court were not
inclined to accept the claim of the appellant that he could have been
considered for selection despite not possessing a current Lascar’s
licence, it was contended that this was an eminently fit case for
exercise of power by this Court under Article 142 of the Constitution.
Reliance was placed on the Constitution Bench decision in Supreme
12
Court Bar Association vs Union Of India and Anr. .
7. Per contra , Mr. Nair, learned counsel for KPSC, contended that the
appellant and similarly placed candidates having Syrang’s licence
were considered for selection in view of the letter of the Director
th
dated 9 October, 2012. However, the Tribunal having held that
12
1998 4 SCC 409
8
candidates not possessing current Lascar’s licence could not have
been considered for selection and having directed KPSC to recast
the “Ranked List”, the same was duly complied with resulting in
cancellation of the advice for appointment of the appellant.
8. Mr. Nair relied on the decision in District Collector & Chairman,
Vizianagaram Social Welfare Residential School Society v. M.
13
Tripura Sundari Devi for the proposition that when an
advertisement mentions a particular qualification and an
appointment is made in disregard of the same, it is not a matter
only between the appointing authority and the appointee concerned:
the aggrieved are all those who had similar or even better
qualifications than the appointee or appointees but who had not
applied for the post because they did not possess the qualifications
mentioned in the advertisement.
9. According to him, had it been known that anyone not having a
Lascar’s licence but having a Syrang’s licence would be eligible for
consideration for appointment on the post of Lascar, others having
Syrang’s certificate could also have applied thereby enlarging the
zone of consideration. However, keeping the process confined only
to a select few and not extending opportunity to all others similarly
situate like the appellant would contravene Article 16 of the
Constitution and also amount to a fraud on public.
13
(1990) 3 SCC 655
9
14
10. P.M. Latha and Anr. v. State of Kerala and ors. was also cited
by Mr. Nair in support of his contention that anyone holding a
Syrang’s licence could not have been considered on the ground of
being more qualified than the holder of a Lascar's licence, and that
whether Syrang's licence could be considered as appropriate for
recruitment of a Lascar is a question which ought to be left to be
considered by the authorities concerned. Since, in P.M. Latha
(supra), this Court did not consider candidates having B. Ed degree
as qualified for the vacancies advertised, which required recruitment
to be made from candidates with TTC qualifications, he urged that
dismissal of the appeal is the only logical conclusion.
11. Mr. Nishe Rajan Shonker, learned counsel for the State of Kerala,
adopted the submissions of Mr. Nair.
Q UESTION OF LAW
12. The central question of law arising for decision on this appeal is,
whether the appellant who did not hold a current Lascar's licence
but was the holder of a Syrang's licence could have been considered
qualified to participate in the recruitment process as well as
appointed.
13. Certain notable features having a bearing on the issue to be decided
by us are these:
14
2003 3 SCC 541
10
th
a. The advertisement dated 15 September, 2012 did stipulate
that only those holding a current Lascar's licence are eligible
to apply. At the same time, it did not specifically say that
anyone holding a Syrang’s licence or a licence higher than a
Lascar’s licence is not eligible to apply.
b. According to the Director, a Syrang’s licence is something
superior to a Lascar’s licence and that holders of Syrang’s
licence can be considered more than equivalent to Lascar’s
licence, thus, being eligible for the job of Lascar also.
c. A communication to the above effect was made by the Director
to KPSC, not on his own, but based on the representation
received from a few candidates who, presumably having
Syrang’s licences, had applied for the post of Lascar and
wanted to compete with aspirants having Lascar’s licence.
d. Despite the appellant being selected, his name figuring in the
“Ranked List”, he being recommended by the Secretary, KPSC
nd
on 2 May, 2017 for appointment as “Boat Lascar” as well as
th
his appointment on 28 July, 2017 during the pendency of the
original applications, he was not impleaded as respondent
therein.
e. The original applicants could not have feigned ignorance as to
the identity of candidates possessing Syrang’s licence who
came to be appointed; also, the Tribunal did not take the pain
of passing appropriate orders to have them impleaded. Thus,
11
the Tribunal’s order adverse to the interest of the appellant
was effectively passed behind his back.
f. Despite there being a reference in the show cause notice dated
st
31 July, 2018 to the Tribunal’s order, the appellant chose to
reply to the show cause notice instead of challenging the such
order before the High Court either under Article 226 or 227 of
the Constitution of India.
g. Once the appellant’s appointment as “Boat Lascar” was
th
cancelled on 27 October, 2018 by the Director, such order
provided him a cause of action to move an original application
before the Tribunal under Section 19 of the 1985 Act; however,
instead of moving the Tribunal, the appellant moved the High
Court in its writ jurisdiction, admittedly, when the Tribunal’s
order had been acted upon.
NALYSIS AND EASONS
A R
14. In our considered opinion, the High Court would have been justified
in dismissing the writ petitions of the appellant at the threshold on
the ground that the order of cancellation had intervened in the
meanwhile providing a cause of action for him to move the Tribunal.
In such original application, he could have even prayed for recall of
the Tribunal’s order on the ground of the same having been passed
behind his back and upon such recall, to hear him on the merits of
the original applications. Such a course of action was available to
the appellant in terms of the decisions of this Court in K. Ajit Babu
12
15 16
v. Union of India and Rama Rao v. M. G. Maheshwara Rao .
However, the High Court examined the appellant’s claim on merits
leading to dismissal of his writ petitions and we too having been
addressed on the merits of the appeals, it would be just and fair to
answer the question that we have formulated above without taking
too technical a view.
15. First, we propose to consider the argument touching non-joinder of
the appellant in the proceedings be fore the Tribunal though,
undoubtedly, he was a necessary party.
16. The effect of non-joinder of a necessary party in proceedings where
an order is passed adverse to the interest of the non-party was
considered by a co-ordinate bench of this Court in Ranjan Kumar
17
v. State of Bihar .
17. The decision in Ranjan Kumar (supra) was followed by the decision
18
in Kulwant Singh v. Dayaram , where promotion to the post of
head constables in Chandigarh Police was the subject matter of
consideration. This Court held that after appearing in a competitive
examination and upon being selected, the appointees become an
identified category and that if the rights of such appointees forming
part of such identified category are to be affected by any
determination, the situation commands that they should be
15
(1997) 6 SCC 473
16
(2007) 14 SCC 54
17
(2014) 16 SCC 187
18
2015 3 SCC 177
13
impleaded in the proceedings as necessary parties. The non-joinder
now permits them to take the plea that the impugned order does
not bind them.
18. The decisions in Ranjan Kumar (supra) and Kulwant Singh
(supra) are authorities for the proposition that selectees who are
appointed or promoted must be arrayed as parties in the original
proceedings where their selections are challenged. Kulwant Singh
(supra) has taken a step further and ruled that mere awareness of
pendency of litigation does not make the order passed by the
Court/Tribunal interfering with the selection binding upon such
appointees or promotees.
19. Though there can be little quarrel with the law laid down in Ranjan
Kumar (supra) and Kulwant Singh (supra) and considering what
has been argued by Mr. Ravindran as a proposition of law, noted
above, to be correct, what stands out is that the appellant did not
immediately challenge the Tribunal’s order and rested on his oars to
throw a challenge till his service came to be terminated. In fact, he
took a chance of favourable consideration of his case by responding
to the show cause. Having taken a chance and not being successful,
he cannot, thereafter, succeed before us on the ground of his non-
joinder as a necessary party. Having not initiated appropriate legal
action that the law permitted him to take, he can get back his service
only if the primary contention raised by Mr. Ravindran succeeds.
14
20. Next, turning to the crux of the issue, it is absolutely necessary to
bear in mind that though the posts of Syrang and Lascar are included
in Class III of the Subordinate Service, the requisite qualifications
for appointment on such posts as ordained by the Special Rules are
different. Moreover, it is specifically ordained by Rule 6 of the Special
Rules as follows:
“ 6. Other Qualifications. - No person shall be eligible for
appointment to the categories specified in column (1) of
the Table below by the method specified in column (2)
unless he possesses the qualifications prescribed in the
corresponding entry in column (3) thereof. ”
21. As noted in the factual narrative, possession of a current Lascar’s
licence is an essential qualification for anyone aspiring for the post
of Lascar. This is what is laid down in column (3), i.e., the
qualifications required; and going by what is said therein read with
Rule 6, there can be no gainsaying that apart from those having a
current Lascar’s licence, none else is eligible. The word “current” is
also significant in the sense that the Rules insist on a subsisting
licence, i.e., a certificate of competency, which is valid and operative
during the time the last date for receiving applications intervenes.
22. The advertisement did not require anything else other than what the
Special Rules require. The absence of express mention that those
holding a Syrang’s licence or a Driver’s licence which, according to
the Director, are superior to a Lascar’s licence, is insignificant,
irrelevant and immaterial having regard to the clear terms of Rule 6
(supra).
15
23. Viewed from a different angle, on a conjoint reading of Rule 6 of the
Special Rules and the advertisement, we find both mentioning a
particular qualification, i.e., a current Lascar's licence, which each
aspirant has to possess for being considered eligible to participate
in the process of selection, thereby creating a distinct class and it is
aspirants falling in such class alone who could have applied for being
considered. Thus, any aspirant, even though possessing a Syrang’s
licence or a Driver’s licence not being part of such distinct class,
could not have been considered eligible. The classification has not
been shown to be and is not unreasonable.
24. True it is, from the reply statement of the Director filed before the
Tribunal and also from the 2010 Rules, it does appear that the holder
of a Syrang’s licence is mandatorily required to obtain and have a
Lascar’s licence for 2 years and, therefore, without having a Lascar’s
licence one cannot apply for a Syrang’s licence. By the same
analogy, it could be presumed that the holder of a Syrang’s licence
is having the requisite eligibility to be a Lascar. However, what turns
the tide against the appellant is the requirement of the ‘current’
Lascar’s licence, discussed above, which the appellant did not have
on the last date for receiving applications.
th
25. We have further seen from the letter of the Director dated 9
October, 2010 addressed to KPSC that it was not voluntary; rather,
it was at the behest of candidates who did not possess current
Lascar’s licence. It can well be presumed that the Director buckled
16
under pressure. However, notwithstanding that, qualifications
statutorily laid down could not have been diluted by what the
Director felt should be considered by KPSC and, therefore, it is the
statutorily prescribed qualifications that should prevail.
26. Mr. Nair is also right in referring to us the decision in M. Tripura
Sundari Devi (supra). Although in such decision it was held that it
amounts to a fraud on public to appoint candidates with
qualifications inferior to the qualifications advertised, which is not
precisely the case here because the appellant has higher
qualifications than what was required, yet, the other principle of law
flowing from such decision is squarely applicable. It has neither been
th
shown that the Director’s letter dated 9 October, 2012 was given
wide publicity nor has it been shown by the appellant that KPSC had
issued any corrigendum vide public notice whereby the zone of
consideration was enlarged permitting holders of a Syrang’s licence
to participate in the process. We, thus, hold drawing inspiration from
the said decision that the aggrieved are all those who had similar or
even better qualifications than the appellant but who had not applied
for the post because they were unaware of the fact that persons not
having a current Lascar’s licence would also be eligible to apply and
compete in the process. Equality of opportunity in matters of public
employment being a sine qua non for a fair and transparent selection
process, such equality is conspicuously absent in the present case.
17
27. There is one other important aspect which also cannot be lightly
overlooked. We shall assume for a moment that though the process
was commenced for appointment on vacant posts of Lascar, there
was no illegality in persons having Syrang’s licence being permitted
to participate. Of course, there could be aspirants holding Lascar’s
licence in sufficient numbers who might not have the higher
qualifications necessary for even appearing for a viva voce to aim at
possessing a certificate of competency as Syrang. Those aspirants,
holding a Lascar’s licence, might not also be so capable and/or
competent for obtaining a Syrang’s licence. After all, all individuals
are not blessed with the same level of intelligence, human abilities
and intellect. The distribution of innate abilities and intellectual
prowess being far from uniform, resulting in a diverse spectrum of
human potential, it is axiomatic that aspirants having only a Lascar’s
licence can never be considered for direct recruitment on any post
in Class III of the Subordinate Service other than a Lascar. It is quite
but natural that in the matter of observation, perception and
memorisation of details of principles of navigation, and skill in
respect of seamanship, there would be significant differences in the
faculties of different individuals. If persons holding Syrang's licence
- who are obviously better equipped than persons holding Lascar’s
licence - are allowed to apply and participate in the process for
appointment on the post of Lascar, the probability of the persons
holding Lascar's licence being outperformed by the persons holding
18
Syrang's licence would be quite high. It could also be a distinct
possibility where all the vacant posts of Lascar are filled up by
persons having Syrang's licence but not having a current Lascar’s
licence as per the statutory requirement. That would pose a real
difficulty for persons not so fortunate and lacking in higher
intelligence, abilities and intellect, for, they would cease to have a
level playing field of competing with other similarly qualified
candidates, and left to compete with candidates having higher
qualifications despite the zone of consideration having been specially
carved out for holders of current Lascar’s licence. It is not that the
holders of Syrang’s licence are left in the lurch. Those having
Syrang’s licence could well compete for appointment on the post of
Syrang in the 50% direct recruitment quota along with others having
current Syrang’s licence. If, in case, all the vacant posts of Lascar
are filled up by persons having Syrang’s licence and such holders of
Syrang’s licence do not participate in the process for direct
recruitment to the post of Syrang, it is fairly likely that the persons
holding Lascar’s licence would never secure any public employment.
That could not have been the intention of a welfare State.
28. Also, it cannot be gainsaid that not only the qualifications but the
nature of duties required to be performed and the nature of service
to be rendered by a Lascar and a Syrang are different. Merely
because the post of Lascar is a feeder post for promotion to the post
19
of Syrang does not per se make the holder of a Syrang’s licence
qualified for the job of a Lascar. Thus, nothing much turns on it.
29. Law is well-settled that an appointment made contrary to the
statute/statutory rule would be void [see: Pramod Kumar v. U.P.
19
Secondary Education Services Commission ].
30. Based on such consideration, we are ad idem with the Division Bench
of the High Court that KPSC could not have included candidates with
licences other than a Lascar's licence in the “Ranked List” and
proceed to recommend those candidates for appointment.
31. On merits, therefore, no legally protected right of the appellant
having been affected by the impugned action, he has no valid claim.
32. We have considered the decisions of this Court in Parvaiz Ahmed
Parry (supra) and Chandra Shekhar Singh (supra).
33. In Parvaiz Ahmed Parry (supra) the appellant therein possessed
degrees in BSc with Forestry as one of his major subjects as well as
MSc (Forestry). The qualification prescribed in the Advertisement
was “ BSc (Forestry) or equivalent from any university recognised by
ICAR ”. This Court held that the appellant’s qualifications were
equivalent to the minimum prescribed qualifications and should be
considered for the concerned post.
34. Chandra Shekhar Singh (supra) was on the question of whether
‘degree’ as mentioned in the advertisement therein included a post-
graduate degree, which the appellants therein possessed. This Court
19
(2008) 7 SCC 153
20
applying the golden rule of interpretation held that the word ‘degree’
would include within its scope and ambit all three degrees –
bachelor's degree, master’s degree and a doctorate degree – unless
a specific expulsion has been made.
35. The said decisions are, thus, distinguishable on facts.
36. We hasten to add that whether or not the action of the employer to
exclude an aspirant from the process of selection (on the ground
that either he is over qualified for a particular post or has
qualifications which, being over and above what is ordained by
statutory rules or rules framed under the proviso to Rule 309 of the
Constitution, does not match the qualification specifically required)
is justified has to be decided considering the rules governing the
selection, the qualifications prescribed, the nature of duty to be
performed, the nature of service to be rendered and a host of other
factors. It has to be remembered that, at times, the employer’s need
to have the right people at the right place, and not always the higher
qualified, has to be conceded. We know of decisions holding that
over-qualification cannot be a disqualification since such an
approach amounts to discouraging the acquisition of qualifications
on the one hand and on the other, such an approach could be seen
as arbitrary, discriminatory and not in national interest. However,
this principle cannot be put in a straitjacket imposing rigid or
inflexible rules or norms. Lack of public employment opportunities
in sufficient numbers may force even a Master degree holder to
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apply for the job of a peon but, if he is appointed upon his application
being favourably considered, what happens to the aspirants who
th
have not had the means of pursuing study beyond the 12
standard? Do they remain unemployed for ever, if all or majority of
the posts of peon are filled up by such degree holders? What
happens if the Master degree holder, in pursuit of greener pastures,
leaves the post of Peon for a better and secured higher job
commensurate with his qualifications after a couple of years? Does
it not, in such a case, burden the public exchequer by requiring the
employer to initiate a fresh selection process? Is not the State, as a
model employer, obliged to ensure that the posts of peon are filled
up only by those having the basic qualification, and not by over
qualified candidates, for sub-serving the common good? Does not
the State have the obligation to strive to ensure that all citizens have
adequate means of livelihood? These are questions which no Court
can afford to ignore. We end by saying that each case that comes
before the Court has to be decided on its own peculiar facts and the
problem that it presents for resolution and that there can be no
universally accepted rule that every time, a higher qualified
candidate is to be preferred to a candidate who matches the
essential qualification required for the post.
37. It is now time to consider Mr. Ravindran’s final submission that this
is an eminent case for exercising powers under Article 142 of the
Constitution.
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38. This Court in Ashok Kumar Sonkar v. Union of India held that
if an appointment is illegal, it is non-est in the eye of law and
rendering the appointment a nullity and principles of equity in a case
of such nature would have no role to play; also that, sympathy
should not be misplaced.
39. Exercise of power under Article 142 of the Constitution would have
been warranted in the present case if palpable injustice were
demonstrated. Unfortunately for the appellant, despite the
assiduous endeavour of Mr. Ravindran, we have consciously decided
to confine our role to being the dispute-settlors.
40. We are of the considered opinion that the appellant having gained
entry through a process which was not legal and valid, this is not a
fit and proper case where this Court ought, in exercise of its power
under Article 142 of the Constitution, to ignore the illegality and
invalidity to come to his rescue.
C ONCLUSION
41. The appeals, accordingly, fail and are dismissed. No costs.
42. Pending application, if any, stands disposed of.
………..…………………J.
(DIPANKAR DATTA)
……………………………J.
(MANMOHAN)
NEW DELHI;
APRIL 02, 2025.
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(2007) 4 SCC 54
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