Supreme Court: While considering the instant appeal concerning Kerala High Court’s decision to dismiss the appellant’s petitions challenging the cancellation of his appointment as ‘Boat Lascar’ in pursuance of the order passed by Kerala Administrative Tribunal; the Division Bench of Dipankar Datta* and Manmohan, JJ., held that the instant case was not fit and proper case where the Court exercises of its power under Article 142 of the Constitution, since the appellant gained entry through a process which was not legal and valid. The Court emphasised that exercise of power under Article 142 of the Constitution would have been warranted in the instant case if palpable injustice was demonstrated.
The Court stated 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.
Background and Legal Trajectory:
An advertisement in 2012 was published by 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 Department. The method of appointment was indicated as ‘direct recruitment’ with qualifications stipulated in the advertisement.
The appellant was the holder of a Syrang’s licence, which was valid when he noticed the advertisement. 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 and brought into force with effect from 22-2-2017.
While the appellant was waiting for his appointment, 2 original applications were filed before the Kerala Administrative Tribunal 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. Furthermore, the Tribunal was urged to declare candidates who did not have valid and current Lascar’s licence as on 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 possessing valid Lascar’s licence.
The appellant was not one among the five private respondents who were impleaded in the aforesaid application and during the pendency of these applications the appellant was appointed to the post of ‘Boat Lascar’.
Tribunal allowed both the original applications and directed KPSC to recast the “Ranked List” and to cancel the advice to appoint ineligible candidates. Acting in pursuance of the Tribunal’s order, KPSC issued a show cause notice dated 31-7-2018 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 reply dated 10-8-2018. Thereafter, KPSC issued an order dated 24-10-2018 cancelling the advice for appointment of the appellant following which the Director cancelled the appellant’s appointment as “Boat Lascar”.
The Kerala High Court via the impugned order dismissed the appellant’s writ petition.
Counsel for the appellant argued that 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. It was further submitted by the appellant that this was an eminently fit case for exercise of power by this Court under Article 142 of the Constitution.
Per contra, the counsel for KPSC argued that the appellant and similarly placed candidates having Syrang’s licence were considered for selection; however, the Tribunal having held that 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.
Court’s Assessment:
Perusing the matter, the Court had to consider 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.
Perusing the advertisement for the post of ‘Boat Lascar’, the Court pointed out that it 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. As per KPSC, 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.
Vis-a-vis the non-impleadment of the appellant in the applications before the Tribunal, the Court pointed out that 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, the Tribunal’s order adverse to the interest of the appellant was effectively passed behind his back. Furthermore, the appellant chose to reply to the show cause notice issued by KPSC instead of challenging Tribunal’s order before the High Court either under Article 226 or 227 of the Constitution.
Analysing the afore-stated circumstances, the Court opined that 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, appellant 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.
Vis-a-vis effect of non-joinder of a necessary party in proceedings where an order is passed adverse to the interest of the non-party, the Court relied on Ranjan Kumar v. State of Bihar, (2014) 16 SCC 187, wherein the Court said that selectees who are appointed or promoted must be arrayed as parties in the original proceedings where their selections are challenged.
The Court further stated 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. The Court said that 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 of the Special Rules. On the conjoint reading of Rule 6 of the Special Rules and the advertisement, the Court found that 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.
The Court stated that what turned the tide against the appellant was the requirement of the ‘current’ Lascar’s licence, which the appellant did not have on the last date for receiving applications. “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”.
The Court thus held that the aggrieved were 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 instant case.
The Court highlighted another important aspect in the matter stating that 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 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”.
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 of Syrang does not per se make the holder of a Syrang’s licence qualified for the job of a Lascar.
“Law is well-settled that an appointment made contrary to the statute/statutory rule would be void”.
While perusing the trajectory of the instant case, the Court observed that lack of public employment opportunities in sufficient numbers may force even a Master degree holder to apply for the job of a peon but, “if he is appointed upon his application being favourably considered, what happens to the aspirants who have not had the means of pursuing study beyond the 12th 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?”
Thus, 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. On merits, therefore, no legally protected right of the appellant having been affected by the impugned action, he has no valid claim.
CASE DETAILS
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Citation: Appellants : Respondents : |
Advocates who appeared in this case For Appellant(s): For Respondent(s): |
CORAM :
Manmohan, J.
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