Madhya Pradesh Public Service Commission vs Manish Bakawale

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7721 OF 2021 (Arising out of SLP (Civil) No.5792 of 2020)

Madhya Pradesh Public Service Commission .…Appellant(s) Versus

Manish Bakawale & Ors. …. Respondent(s)

JUDGMENT

A.S. Bopanna,J.

1. The appellant­Madhya Pradesh Public Service

Commission is assailing the order dated 08.11.2019

passed by the High Court of Madhya Pradesh in W.A. Signature Not Verified Digitally signed by DEEPAK SINGH No.474 of 2019. Through the said order the learned Date: 2021.12.17 16:06:10 IST Reason: 1 Division Bench of the High Court has dismissed the

intra­court appeal filed by the appellant herein. In doing

so, the learned Division Bench has affirmed the order

dated 03.01.2019 passed by the learned Single Judge of

that Court in W.P. No.20855 of 2017. The learned Single

Judge, had thereby allowed the writ petition and directed

the respondents in the writ petition, which included the

appellant herein to consider the case of respondent No.1

herein for appointment on the post of the Chief Municipal

Officer (‘CMO’ for short) Grade­Kh, Assistant Director or

any other post mentioned by the respondent No.1 in his

preference letter.

2. The facts in a nutshell are that the appellant

issued an advertisement No.2 dated 17.03.2016 inviting

online application from eligible candidates for the State

Service Examination 2016 for the various category of

posts under the State of Madhya Pradesh in different

departments. The advertisement was exhaustive

providing detailed information and it clearly indicated the

2 eligibility criteria. The last date for submitting the

application was shown as 14.04.2016 and the

preliminary examination was scheduled to be held on

29.05.2016. The educational qualification and other

criteria were the same for all the posts advertised except

the age limit being different as specified. That apart, for

the posts of Deputy Superintendent of Police, Assistant

Jail Superintendent and Deputy Transport Inspector,

specific Physical Measurement was indicated as the

minimum eligibility criteria. Therefore, the candidates

satisfying the eligibility criteria could choose their order

of preference to the various posts that were advertised.

3. The respondent No.1 submitted his application and

had shown his order of preference. The second preference

shown was for the post of Deputy Superintendent of

Police, which could have been opted by a candidate if the

candidate satisfied the minimum required physical

measurement. Pursuant to such applications, the

preliminary examination and the written examination

3 was conducted. The respondent who had applied under

the Scheduled Caste (‘SC’ for short) category had secured

892 marks out of 1575 marks. The marks obtained by

the respondent No.1 was not sufficient in the order of

merit to be selected for the post as per his first

preference, namely Deputy District Collector. However,

the marks secured was sufficient to be placed in the

merit list for the post of Deputy Superintendent of Police.

Accordingly, the respondent No.1 was included in the

main list for the post of Deputy Superintendent of Police

by the appellant. In compliance with the remaining

formalities for appointment the respondent No.1

appeared before the Medical Board when it was found

that his height was only 162 cms. as against the

prescribed minimum height of 168 cms. The respondent

No.1 was therefore not eligible to be appointed to the post

of Deputy Superintendent of Police.

4. It is in the above backdrop the respondent No.1

approached the High Court since as per the appointment

4 made to the other posts it revealed that a schedule caste

candidate who had secured 892 marks was appointed to

the post of CMO. The respondent No.1 having shown his

subsequent preference for CMO in his application form

claimed that in such event he having obtained 892 marks

was entitled to be appointed in the post of CMO. The

learned Single Judge having accepted such contention

had allowed the writ petition and directed consideration.

The learned Division Bench approved the same. It is in

that circumstance the appellant, which is the authority

saddled with the responsibility of undertaking the

selection process is before this Court in this appeal.

5. We have heard Dr. Harsh Pathak, learned counsel

for the appellant, Mr. Pawan Reley, learned counsel for

the contesting respondent and perused the appeal

papers.

6. At the outset, a perusal of the order passed by the

learned Division Bench would indicate that it has merely

taken note of the consideration made by the learned

5 Single Judge by extracting the order passed in the writ

proceedings before affirming the same. In that light, on

adverting to the order passed by the learned Single Judge

it would reveal that the learned Judge on taking note of

Rule 4(3)(c)(2) of M.P. State Civil Services Rules, 2015 has

arrived at the conclusion that the Rule is clear that if the

candidate is selected in the main list, then he/she will

not be considered for the remaining post of preference

made. However, the learned Single Judge has thereafter

arrived at the conclusion that though the respondent

No.1 was selected in the main list on the basis of the

higher priority of post, he could not be appointed on the

said post as he had not qualified on the benchmark

regarding his height and as such he should be considered

in the next preferred post.

7. Dr. Harsh Pathak, learned counsel for the

appellant while assailing such conclusion reached by the

High Court has made detailed reference to the Rules,

more particularly Rule 4(3)(c)(1) and (2) of the Rules. It

6 would be appropriate to take note of Rule 4(3)(c)(1) and

(2) which read as hereunder: ­

“Category wise recommendation of the candidates, for any specific service/post will be made according to the marks obtained by them and preference sheet (if any) submitted by them.

If a candidate is selected in the main list on the basis of the higher priority of post given by him in the preference sheet, he/she will not be considered for the remaining post(s) of preference sheet.”

8. In that light, the learned counsel has also referred

to the advertisement which contains the details of the

requirement and the qualification for the post. Since the

respondent No.1 had indicated his second preference to

the post of Deputy Superintendent of Police and the issue

presently is with regard to the wrong preference made by

him and in that light, the claim for next preference to the

post of CMO, the requirement of the physical

measurement for the post of Deputy Superintendent of

Police explicitly stated in the advertisement needs to be

noted, which is as hereunder: ­

7 Physical Measurement:

The physical measurement prescribed for the posts of Deputy Superintendent of Police, Assistant Jail Superintendent and Deputy Transport Inspector are as under:

No. Name of Post Gender Height Chest Siege (in c.m.) Without With Inflating Inflated (in C.M.) (in C.M.)

1. State Police Male 168 84 89 Service (Dy. Supdt. Of Police

9. In that background reference is made to the

application submitted by the respondent No.1(Annexure

P2) wherein the order of preference is given. The

preference for Deputy Superintendent of Police is at No.2

while the preference for the post of CMO is at No.16, but

the fact remains that the preferences are indicated.

However, what is relevant to be noted is the declaration

which is required to be made by the candidate in the

application, which reads as hereunder: ­

“DECLARATION

8 * I, hereby declare that all the aforesaid information given by me are true and correct to the best of my belief, and nothing material is concealed. It is well within my knowledge that in the event of furnishing of incorrect and false information the criminal proceedings can be initiated against me. Along with this the benefits received and granted by the Commission can be declared null and void at any stage/time.

* I had read over and understood the instructions of Commission word to word and I hereby undertake to comply the same.

* I also hereby declare that the choice for which posts have been given by me, I fulfilled all the prescribed eligibility i.e. age limit, educational qualification, experience, physical measurement etc. for those posts.

* On being found ineligible at any stage of selection, before selection or thereafter my candidature can be cancelled at any time for which I will be solely responsible.

10. The learned counsel has also referred to the online

precedence/priority form with reference to the

instructions contained therein concerning to eligibility

9 and the warning, to which the applicant i.e., respondent

No.1 herein has declared as having understood all the

stipulations and has undertaken to abide by the same.

The relevant instructions and the warning, as also the

undertaking read as hereunder: ­

“INSTRUCTIONS CONCERNING TO ELIGIBILITY:

 It may be ensured at the time of filling of precedence/priority form the priority for which posts have been given the candidate is having all the eligibility criteria for those posts.

 While giving preference for the uniform posts, applicant should ensure that he fulfils all the terms and conditions of physical criteria’s.

WARNING:

 If the precedence/priority form is submitted for the selection of uniform post by the candidate/applicant then the applicant his/her own may ensure that he/she is fulfilling all the terms prescribed for age limit, educational qualification and prescribed physical measurement for the advertised posts applied by him/her. If any error/mistake in the information provided by the applicant shall be found then the Commission shall be having the right to cancel the candidature because of submitting erroneous information the candidate/eligibility of such candidate/applicant prior to selection or thereafter at any stage can be cancelled for

10 which the applicant shall be solely responsible for the same.

 On furnishing/submitting erroneous information by the candidate/applicant, it will be considered as grave error and on being found erroneous selection of applicant the same can be cancelled for which the applicant himself/herself shall be responsible.

I, Agree – I hereby declare that, I have read and understood all the stipulations given in the advertisement, corrigendum’s and hereby undertake to abide by them.

Sd/­ Illegible Manish Bakawale 02.06.2017”

11. In that view, it is contended that the respondent

No.1 having understood the instructions and also having

taken note of the eligibility and requirements has

indicated his second preference to the post of Deputy

Superintendent of Police. Such preference exercised

would be to the effect that the respondent No.1 satisfies

the eligibility requirement of physical measurement as

declared by him and has therefore opted for the said

post. In that background, the appellant while taking note

of the preference and the marks obtained in the

11 examination had included his name in the main list as

the candidate who had obtained 892 marks in the order

of merit was eligible to be considered under the schedule

caste category for the post of Deputy Superintendent of

Police. On such inclusion in the main list, the candidate;

in this case the respondent No.1 would stand excluded

from further consideration for any other post even if

shown as next preference.

12. Thereafter, the remaining candidates would be

considered for the post that they have preferred based on

the eligibility criteria and the marks obtained by such

candidates. In that manner the list would be finalised

simultaneously for all the different posts advertised in the

different departments. From such list, on verification of

the testimonials and the relevant criteria which is the

eligibility for the post would be taken note and the

appointment orders will be issued. In that circumstance

when the respondent No.1 had preferred the post of

Deputy Superintendent of Police and had secured the

12 marks required but was found ineligible to be appointed

in that post cannot thereafter turn around to seek

appointment in the next preferred post when already the

persons eligible are considered for such post and the

main list is finalised. In such circumstance, it is

contended that the order passed by the High Court is not

sustainable and the same is liable to be set aside.

13. The learned counsel for the respondent on the

other hand contended that the Rule cannot be taken note

in such narrow perspective. Though the physical

requirement is indicated, the Rule 9 provides regarding

the physical fitness. It is contended that the physical

criteria cannot be a bar merely because at the time of

medical examination the benchmark is not reached. It is

contended that there is a likelihood that the chest

measurement could be as per requirement at the time of

application and therefore the preference would be

indicated in such manner. Subsequently if there is a

change in the physical measurement, the same should

13 not be treated as a bar. In that view, it is contended that

the rule 4(3)(c)(2) which has been referred ought not to be

interpreted narrowly. In that light, the learned counsel

for the respondent sought to justify the order passed by

the High Court by contending that the learned Single

Judge having noted the Rule and on taking note that the

respondent No.1 although selected in the main list for the

higher post for which preference was given, he could not

be appointed as he had not obtained the benchmark

regarding his choice and in that view has to be

considered for the next preferred post. It is in that

circumstance, the learned Single Judge held that the

Rule would not be applicable in the present case. The

learned counsel has further relied on the precedents to

contend that the Rule is to be interpreted in a beneficial

manner and not in a literal sense.

14. From the facts narrated above and the contentions

put­forth by the learned counsel for the parties, it is

evident that though several posts were advertised and the

14 applications were sought from the eligible candidates, the

preliminary and written examination was common and

the marks as obtained in the said examination was taken

into consideration to include the candidates based on

merit to the post for which the candidate concerned had

given his preference. The advertisement had indicated the

requirement of the Rule that a candidate who had

preferred the higher of the posts which has been

advertised would be selected against such post depending

on the merit in the examination. To that extent Rule 4(3)

(c)(2) of Rules 2015 noted above is clear and specific that

the category­wise recommendation of the candidates will

be made according to the marks obtained by them and

the preference sheet submitted by the candidate. Clause

(2) of Sub­Rule (3) further clarifies that if a candidate is

selected in the main list on the basis of the higher

priority of the post given by him in the preference sheet,

the candidate will not be considered for the remaining

post indicated in the preference sheet.

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15. In the instant case, the fact that the respondent

No.1 had given his preference to the post of Deputy

District Collector, Deputy Superintendent of Police and

thereafter to the other posts including CMO in that order

of preference is not in dispute. The further fact that the

respondent No.1 had secured 892 marks out of 1575

marks is the common case of the parties. Though the

respondent No.1 had given first preference to the post of

Deputy District Collector, the marks obtained by him was

not sufficient to be included in the main list based on

merit for that post. In that light, the second preference

given by respondent No.1 to the post of Deputy

Superintendent of Police was taken into consideration.

For the said post eight vacancies had been notified as

reserved for the Scheduled Castes candidates. In that

view, the said 892 marks obtained by respondent No.1

was sufficient to accept the preference and include the

name of the respondent No.1 in the main list for the post

of Deputy Superintendent of Police.

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16. While taking note of this position, what is also to

be kept in view is the additional eligibility criteria for the

said post which had been clearly depicted in the

advertisement calling for applications and was within the

knowledge of respondent No.1. Clause 9 thereof, which

has been extracted and taken note supra in the course of

this order indicates that the minimum height prescribed

for the said post was 168 cms. The application submitted

by the respondent No.1 apart from indicating that his

second preference is to the post of Deputy

Superintendent of Police, he had further signed in

acknowledgment of the declaration made in the

application which has also been extracted above in the

course of this order. The same would indicate that a

declaration is made to the effect that all the information

given by him are true and correct and that it is within his

knowledge that in the event of furnishing incorrect and

false information, proceedings can be initiated against

him. It is further declared that the choice for the posts

which have been given by him, he has fulfilled all the

17 prescribed eligibility i.e. age limit, educational

qualifications, experience, physical measurement etc.

for those posts. It is also indicated that if he was found

ineligible at any stage of selection, his candidature can be

cancelled. The declaration is explicit that the choice of

preference to the post has been made by him since

according to him he has fulfilled the prescribed eligibility

criteria, including physical measurement. If that be the

position, the positive declaration made by the respondent

No.1 is that he satisfies the minimum eligibility of 168

cms. height required for the post he has preferred which

is the higher post than the next preference. In such

event, the authority concerned on perusal of the

application would presuppose that such physical

eligibility criteria is possessed by the candidate

concerned and he therefore has made his choice for the

post. In such event if the marks required for the said post

is obtained by the candidate, he would be included in the

main selection list. Though, the appointment is a

18 subsequent act which would take place on verifying the

details and the candidate being found to be eligible, the

right of a candidate for selection will stand exhausted

once he is in the main list as per the Rule. While taking

note of this aspect, what is to be kept in view is that

Clause (c)(2) of the Rule4 (3) concerned employs the

phrase “selected in the main list” and “not appointed to

the post”.

17. The precedents relied on by the learned counsel for

respondent No.1 may now be noted. In R.L. Arora vs.

State of Uttar Pradesh and Ors. AIR 1964 SC 1230,

the question arose relating to the new clause included in

Section 40(1) relating to acquisition of property for the

company and in that context while considering the same

it has been observed by this Court that literal

interpretation is not always the only interpretation of a

provision in a statute. In Surjit vs. Mahanagar

Telephone Nigam Limited 2009 16 SCC 722, the issue

considered was with regard to the scope and extent of

19 Rule 443 and 2 (pp) of the Telegraph Rules to consider

where the telephone standing in the name of one spouse

could be dis­connected for non­payment of the bill by the

other. In those circumstances, it was observed that in

order to interpret a statute one has to consider the

context in which it has been made and the purpose and

object it seeks to achieve. In Union of India and Ors.

vs. Major General Madan Lal Yadav (Retd.) (1996) 4

SCC 127, the issue relates to the provisions under the

Army Act. The claim put­forth by the Officer was taken

into consideration. The observation contained therein,

relied upon by the learned counsel for the respondent

No.1 herein to the effect that a man shall not take

advantage of his own wrong to gain the favourable

interpretation of law stated in the said decision, in fact

would go against the respondent No.1 himself.

18. None of the referred decisions would be of

assistance to respondent No.1 though on the principle of

law laid down in the said decisions there can be no

20 quarrel whatsoever. The learned counsel for respondent

No.1 has also placed before us the decision of the Gujarat

High Court in the case relating to recruitment process

which was considered in D.G. Dalal vs. State of

Gujarat (2002) 2GLR 1011. No­doubt in the said case,

Rule 9 of Rules 1969 which was considered therein

provided with regard to single application for all posts

and indication of the preference to be provided as in the

present case, but the question arose therein since the

posts had fallen vacant. The issue therein was with

regard to the appointments being made on merit, based

on preference and also a waiting list being maintained

against such posts. Since, certain candidates selected for

the higher posts had not reported, vacancy had arisen

and to such vacant posts the candidates in the waiting

list were considered. In that view, a grievance was raised

by the candidates who were selected for the second

preferred posts since they had higher merit than the

persons who were in the waiting list for the higher post

21 which had not been given to them at the first instance as

there was no vacancy and the next post based on

preference was given. It is in that circumstances where

the vacancies had arisen, the Rule had been considered

to indicate the manner in which the Rule is to be

operated. In fact, the Rule was under challenge in that

case. It has no application to the facts herein so as to

persuade us to accept the same in the present matter.

19. As noted, the selection for all the posts in the

instant case were through a single advertisement and

common examination. The selection process conducted

by the appellant for the benefit of the departments under

the government was not one post after the other on

completing the entire process to the higher post. Since, a

common examination was held and the common merit

list was prepared, the adjustment of the candidates were

based on their preference according to their order in the

merit list. The respondent No.1 having declared that he

possessed the physical eligibility for the post of Deputy

22 Superintendent of Police and since he had obtained the

requisite marks he was selected and placed in the main

selection list. It is true as indicated from the records that

another Scheduled Caste candidates who had secured

892 marks had been given the post of CMO as per the

preference indicated by him. When such is the process of

selection, if the respondent No.1 who had made

declaration about the correctness of his eligibility and

secured the selection to be placed in the main list for the

said post, he has to blame himself if found ineligible

since his height was admittedly 162 cms. which was in

fact within his knowledge. He ought not to have exercised

the preference. But having acted so at that stage, if he

seeks appointment to the next preferred post and such

request is accepted, it will result in displacing a

candidate who having made a truthful declaration had

indicated the appropriate preference, who is selected and

placed in the main list. Therefore, in such circumstance,

if any interference is made in the process of selection,

apart from the fact that it could interfere with the

23 administrative process would also cause hardship to the

candidates who have already been appointed and are not

before this Court. In the present facts and circumstances,

the Rule concerned provides for a definite process, which

was also depicted in the advertisement calling for

applications. The Rule is not under challenge. The

candidate concerned had applied without demur and also

furnished a declaration with regard to correctness of

details provided. He cannot thereafter turn around to

seek alteration of the position to the detriment of others.

20. In that view, the High Court was not justified in its

conclusion. We accordingly, set aside the order dated

03.01.2019 passed in W.P. No.20855/2017 and the order

dated 08.11.2019 passed in W.A. No.474/2019.

Consequently, the Writ Petition in W.P. No.20855/2017

before the High Court of Madhya Pradesh Bench at

Indore stands dismissed.

21. The above appeal, is accordingly, allowed with no

order as to costs.

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22. Pending application, if any, shall stand disposed of.

……………..………..………….…………….J. (DR DHANANJAYA Y CHANDRACHUD )

………………………...……………………….J. (A.S. BOPANNA)

New Delhi, December 17, 2021

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