Full Judgment Text
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CASE NO.:
Appeal (civil) 1010 of 2000
PETITIONER:
MOHD. RIAZUL USMAN GANI AND ORS,
RESPONDENT:
DISTRICT AND SESSIONS JUDGE, NAGPUR AND ORS.
DATE OF JUDGMENT: 11/02/2000
BENCH:
S. SAGHIR AHMAD & DP. WADHWA
JUDGMENT:
JUDGMENT
2000 (1) SCR 771
The Judgment of the Court was delivered by
D.P. WADHWA, J. Leave granted.
Appellants are aggrieved by judgment dated December 1, 1997 of the Bombay
High Court (Nagpur Bench) dismissing their writ petition filed under
Article 226 of the Constitution wherein they had sought quashing of
selection of peons in the Subordinate Judiciary as contrary to relevant
rules for recruitment to Class III and IV services in Subordinate Judicial
Service in the State of Maharashtra. Appellants were also aspirants for
these posts.
Under the Recruitment Rules for recruitment to Class III and IV services in
Subordinate Judicial Services procedure is prescribed for recruitment to
the posts of various categories of officers in civil and criminal courts in
a district. Recruitment is to be made by District Judge strictly in order
of seniority from the list of candidates to be prepared as under:
(a) In preparing the list the District Judge shall act upon the
advice of a committee known as the Advisory Committee.
(b) Such list shall contain names of candidates for recruitment to
the different categories referred to above in separate parts for each
category.
(c) Subject to Rule 3 no candidate whose name is not on such list
shall be employed in any of the above categories in any Civil or Criminal
court.
(d) The list prepared by the Advisory Committee shall be final.
Rule 2 provides for constitution of the Advisory Committee, which shall
consist of District Judge as the chairman and other judicial officer,
mentioned therein. Necessary educational and other qualifications, which
would qualify a candidate for being enlisted in various posts, are
prescribed by Rule 8, For ’Bailiffs’ and ’Peons’ these are as under :
"Bailiffs: (i) Not lower than a pass in the Regional Language Final
Examination or in the examination of standard VII of a recognised School
with Marathi as the medium of instruction.
(ii) Active habits and temperament.
Peons : Not lower than a pass in the Examination of Standard IV in the
Regional Language.’’
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There were 66 posts of peons in the District and Sessions Court, Nagpur. On
advertisement being issued for filling up these posts as many as 14,965
applications were received. The Advisory Committee constituted under the
Rules laid four criteria in short-listing all the applicants. The said
criteria are as under :
"(a) The incomplete applications namely not supported by certifi-cate and
testimonials regarding educational qualification, date of birth, caste
certificate if belonging to backward class, should be rejected.
(b) The applications not accompanied with copies of certificates and
testimonials attested by Gazetted Officer should be rejected.
(c) The applications of the candidates from backward community claiming
reservation and concession of upper age limit not accompanied with caste
certificate or attested copy of such certificate issued by the competent
authority should be rejected.
(d) Applications of those candidates possessing minimum educa-tional
qualification of passing IVth vernacular standard and/or educated upto
passing of VIIth Standard only should be considered for the interview to
the posts of peons and those who have studied above Vllth vernacular
standard may not take proper interest in the work of peons and, therefore,
should not be called for interview."
It is the fourth criterion, which is under challenge being arbitrary, Under
the Rules for the post of a peon educational qualification prescribed is
not lower than a pass in examination of Standard IV in the regional
language. Out of the applications received the number of applicants falling
in the category of having passed IV to VII Standards was 1340. The
appellants did not fall in that category as they were having higher educa-
tional qualifications. Out of 1340 applicants, who fell in the category of
those who passed IV standard up to VII standard, only 384 candidates were
found to be eligible satisfying all the full criteria laid down by the
Advisory Committee, 956 candidates were found to be ineligible on one
ground or the other.
In the counter affidavit filed in the High Court on the writ petition of
the appellants stand of the Bombay High Court and the District and Sessions
Judge, Nagpur was that the persons who were having higher educational
qualifications do not take proper interest in the work of peons and that
they generally feel shy and below dignity when required to do the work of
sweeping the court rooms, chambers of Judges, etc. It was sub-mitted this
was based on the experience gained. It was also stated that apart from the
fact that persons with higher educational qualifications thought it below
dignity to do ordinary manual jobs, they would also get frustrated in the
absence of proper avenues for promotion, which would result in dislocation
of the working of the courts.
Relying on decisions of this Court in Government of A.P. v. P. Dilip Kumar,
[1993] 2 SCC 310, M.P. Public Service Commission v. Navnit Kumar Potdar,
[1994] 6 SCC 293 and Union of India v. T. Sundaraman and Others, [1997] 4
664, wherein this Court upheld the principle of short-listing in
recruitment process, High Court in its impugned judgment also said that the
Supreme Court clearly held that it was open to the authority concerned to
restrict the zone of consideration amongst the eligible candidates in any
reasonable manner and that as to what would be the reasonable manner in a
given case would undoubtedly depend on the facts of each case. Reference in
this connection was made to another decision of this Court in S.B. Mathur
and Others v. Hon’ble the Chief Justice of Delhi High Court and others, AIR
(1988) SC 2073. Reference was also made by the High Court to yet another
decision of this Court in T.R. Kothandaraman and Others v. Tamil Nadu Water
Supply and Drainage BD and Others [1994] 6 SCC 282, para-23 wherein this
Court said that too much emphasis on higher education may even cause dent
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to the cause of social justice as it would be the proper section of the
society, which would be deprived of its legitimate expectation and that
harmony has to be struck by maintaining reasonableness in the ratio between
the call of social justice and the need for higher education without in any
way jeopardising the principal object of qualification. No particular ratio
can be spelt out, which would satisfy these requirements, the
reasonableness of the ratio depending upon the facts of each case.
In the case of M.P. Public Service Commission v. Navnit Kumar Potdar,
[1994] 6 SCC 293 for the purpose of short-listing a longer period of
experience than the minimum prescribed was used as a criterion by the
Public Service Commission for calling candidates for interview. This Court
upheld the short-listing of candidates based on some rational and
reasonable basis.
In the case of Government of Andhra Pradesh v. P. Dilip Kumar, [1993] 2 SCC
310 this Court said that it was always open to the recruiting agency to
screen candidates due for consideration at the threshold of the process of
selection by prescribing higher eligibility qualification so that the field
of selection can be narrowed down with the ultimate objective of promoting
candidates with higher education to enter the zone of considera-tion.
In the case of Union of India and Another v, T. Sundararaman and Others,
[1997] 4 SCC 664 Union Public Service Commission invited applica-tions for
the posts of Assistant Professors of Medicines, The essential qualification
for the purpose were set out in the application and one of the
qualifications was: at least three years teaching experience in the
speciality concerned as a Lecturer/Tutor/Demonstrator/Senior
Resident/Registrar after obtainbg the Post Graduate degree qualification.
It was also stated in the advertisement that prescribed essential
qualifications were the min-imum qualifications and the mere possession of
minimum qualifications does not entitle the candidate to be called for
interview. Where the number of applications received in response to an
advertisement is large and it will not be convenient or possible for the
Commission to interview all the candidates, the Commission may restrict the
number of candidates to a reasonable limit on the basis of qualification
and experience higher than the minimum prescribed in the advertisement or
by holding a screening test. 37 applications were received for three posts.
The Commission short-listed the candidates on the basis of four years
experience or more. As a result 20 candidates were called for interview.
Respondent did not qualify for the short-listing. He challenged the
selection which was upheld by the Central Administrative Tribunal, Madras
Bench. On appeal filed by Union of India this Court said that the procedure
adopted by the Commission was a legitimate. The decision of the Central
Administrative Tribunal was set aside.
Applying the principles laid down by this Court in the aforesaid decisions
High Court held that the four criteria adopted by the Advisory Committee
for short-listing cannot be said to be unreasonable. High Court held that
fourth criterion was based on actual experience as reflected in the
affidavit filed by the Additional Registrar of the High Court and that
criterion was not in any manner unreasonable. Writ petition was dismissed.
Laying of criteria when there are large number of candidates is permissible
but that criteria must be reasonable and not arbitrary having regard to the
post for which recruitment is made.
We, however, do not think that principle laid by this Court in the case of
T.R. Kothandaraman & Ors, v. Tamil Nadu Water Supply & Drainage BD & Ors,,
[1994] 6 SCC 282 has been correctly applied by the High Court in the
present case. Question before the Supreme Court concerned with
classification based on higher educational qualification for the purpose of
promotion in the service. This is how this Court said (para 16) :
"From what has been stated above, the following legal propositions emerge
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regarding educational qualification being a basis of clas-sification
relating to promotion in public service :
(1) Higher educational qualification is a permissible basis of
classification, acceptability of which will depend on the facts and
circumstances of each case.
(2) Higher educational qualification can be the basis not only for
bailing promotion, but also for restricting the scope of promotion.
(3) Restriction placed cannot however go to the extent of serious-ly
jeopardising the chances of promotion. To decide this, the extent of
restriction shall have also to be looked into to ascertain whether it is
reasonable. Reasons for this are being indicated later.
High Court relied upon observation made in para 23 of the judgment. We may
consider the circumstances under which those observations came to be made.
The appellants in this Court had challenged the validity of Rule 2(b) of
the Special Rules for the Tamil Nadu Agriculture Engineering Service being
violative of Article 16 of the Constitution. Rule 2(b) prescribed ratio of
3:2 for direct recruits and promotees, the former being degree holders and
the later diploma holders. This Court observed that higher educational
qualification has relevance in so far as the holding of higher promotional
post is concerned, in view of the nature of the functions and duties
attached to that post. Diploma holder Assistant Engineers to become
eligible for promotion to the post of Executive Engineer could be
considered only if they were to have "exceptional merit" in work. It was
found that in other departments where separate lists were being maintained
ratio of degree holders and diploma holders was 3:1 whereas in the present
case ratio of 3:2 was recommended taking into account the large number of
diploma holders. It was also found that a degree holder has to put in six
years of study at college level after leaving school stage whereas diploma
holders have only 3 years study at the institute of technology after school
stage. Because of that, the Court said, higher technical caliber in degree
holders is presumed. Then this Court said (paras 23 and 24) :
The next question to be examined is about the extent of the preference
given to the degree-holders. At this stage, we may first give our reasons
as to why this aspect is amenable to examination. The rule-making authority
having made a diploma- holder eligible for promotion, it follows that a
diploma-holder does not suffer from such an infirmity as to make him
totally unfit for holding the higher post. If that is so, question is
whether the ratio could be made so inequitable as to mock at the guarantee
of equality? The right which has been conferred by one hand cannot be taken
away by another; nor can the right be converted to a husk. It must continue
to be a meaningful right. Too much emphasis on higher education may even
cause dent to cause of social justice, as it would be the poorer section of
the society which would be deprived of its legitimate expectations. The
preference given to the degree-holders would, at the same time, give fillip
to the desire to receive higher education, as such persons would always be
favourably placed as compared to the lesser educated ones. A harmony would
thus be struck, by maintaining reasonableness in the ratio, between the
call of social justice and the need for higher education, without in any
way jeopardising the principal object of classification. But then, no
particular ratio can be spelt out which would satisfy these requirements;
the reasonableness of the ratio shall depend on facts of each case.
In the present cases the ratio is 3:2 and we regard the same as reasonable
in view of what has been stated above relating to adoption of this ratio.
Having felt satisfied about the permissibility of the classification also,
the cases challenging the constitutionality of the quota for promotion as
fixed in this service have to be dismissed."
In the present case we find that the candidates with higher education than
Standard VII were completely shutout for being considered for the posts of
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peons. Recruitment Rules also provide for promotion. Rule 3(ii) we may
quote :
(ii) The District Judge may promote -
(a) a Peon, a Watchman, a Gardener, or a Sweeper to the post of Bailiff;
(b) a Peon, a Watchman, a Gardner, a Sweeper or a Bailiff to the post of
a Regional (Language) Section Writer or a English Section Writer or a
Clerk; and
(c) a Peon, a Watchman, a Gardner, a Sweeper or a Bailiff, a Regional
(Language) Section Writer and English Section Writer or a Clerk to the post
of Stenographer." Now the qualifications for appointment to the posts of
Clerks and Regional (Language) Section Writers are :
"Clerks: (i) Not lower than a pass in the S.S.C. or other examination
recognised as equivalent to the S.S.C. Examination,
(ii) A reasonably good speed in typing.
(iii) Adequate knowledge of the regional language of the Court in the
District.
English Section Writers : (1) Not lower than a pass in the S.S.C. or other
examination recognised as equivalent to the S.S.C. Examination.
(ii) A reasonably good speed in typing.
Regional Language Section Writers: - Not lower than a pass in the Regional
Language Final Examination or in the examination of Standard VII of a
recognised school with Marathi as the medium of instructions."
If the appointment of a candidate to the post of peon is restricted to his
having qualified up to Standard VII he will have no chance of promo-tion to
the post of Regional Language Section Writer or a Clerk. It is not that
qualifications required for Regional Language Section Writer and Clerk are
to be acquired by a peon during the course of his service. During the
course of hearing we were referred to a few applications submitted by peons
who are already working wherein they had prayed for their being considered
for appointment to post of clerks since they had acquired requisite
qualifications for that post. On this an argument is sought to be based
that those peons with higher qualifications are not interested in their
work as peons. We can give no credence to such an argument when Recruitment
Rules themselves prescribe that post of a clerk can be a promotional post
for a peon having requisite qualification. There is nothing wrong if a peon
sends in his request for being considered to be promoted as a clerk.
We do not know what are the duties attached to the post of a peon. But
perhaps one thing peons are not required to do the work of sweepers or
gardeners. Qualifications for gardeners and sweepers have been separately
provided in the Recruitment Rules and the only qualification for both the
categories of these posts is "good physique and also to carry out the
duties attached to the post.’’
If an employee does not perform the duties attached to the post
disciplinary proceedings can certainly be taken against him. An employer
cannot throw up his hands in despair and devise a method denying appoint-
ment to a person who otherwise meets the requisite qualifications on the
ground that if appointed, he would not perform his duties. Qualification
prescribed is minimum. Higher qualification cannot become a disadvantage to
the candidate.
A criterion which has the effect of denying a candidate his right to be
considered for the post on the principle that he is having higher
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qualification, than prescribed cannot be rational. We have not been able to
appreciate as to why those candidates who possessed qualifications
equivalent to SSC examination could also not be considered. We are saying
this on the facts of the case in hand and should not be understood as
laying down a rule of universal application.
We do not think, therefore, that the criterion four as laid by the Advisory
Committee constituted under the Rules and upheld by the High Court is in
any way reasonable or rational. By adopting such a course High Court has
put its stamp of approval to another type of reservation for recruitment to
the service which is not permissible, A poor person can certainly acquire
qualification equivalent to S.S.C. Examination and not that he cannot go
beyond Standard VII. Perhaps by restricting appointment to candidate having
studied only up to Standard VII High Court may not be encouraging dropouts.
Considering whole aspect of the matter we must upset the fourth criterion
laid by the Advisory Committee. Appellants have been wrongly denied of
their right for being considered for the post of peon. However, in the
counter affidavit filed before us by the Additional Registrar (Legal), High
Court on behalf of the District & Sessions Judge and the High Court it has
been stated that process of selection of peon has already been completed
and the candidate from the select list are being posted as peons. In this
view of the matter, we would not like to disturb the appointment of the
candidates already selected. Thus, though we set aside the impugned
judgment of the High Court, we will not issue any further directions for
cancelling the appointments of the candidates already selected and for
starting of the whole selection process afresh.
The appeal is, therefore, disposed of in above terms. In the cir-
cumstances, however, there shall be no order as to costs.