Union Of India vs Uzair Imran

2023INSC901 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.………………………../2023 [ARISING OUT of SLP (CIVIL) DIARY NO. 21319/2022]

UNION OF INDIA …APPELLANT

VS.

UZAIR IMRAN & ORS. …RESPONDENTS

JUDGMENT

DIPANKAR DATTA, J.

1. Leave granted.

2. The challenge in this appeal by the Union of India (“appellant”, hereafter)

is to the judgment and order dated 4th April, 2017 passed by the High Court

of Judicature at Allahabad, Lucknow Bench (“High Court”, hereafter)

dismissing a Writ Petition1 of the appellant as well as the judgment and order

dated 10th December, 2021 of the High Court dismissing its Review

Application2. By the judgment and order dated 4th April, 2017, the High Court Signature Not Verified Digitally signed by Deepak Singh Date: 2023.10.11 14:15:56 IST Reason: 1 No. 1822 of 2000 2 C.M. Application No.105840 of 2017

1 affirmed the judgment and order dated 6th May, 1999 passed by the Central

Administrative Tribunal (“Tribunal”, hereafter) allowing an Original Application3

under section 19 read with section 14 of the Administrative Tribunals Act, 1985

as well as a subsequent order dated 30th May, 2000 dismissing a Review

Application4.

3. At the outset, it is relevant to underline that the present appeal is

confined to consideration of the relief granted by the Tribunal, since upheld by

the High Court, to Ankur Gupta (“the third respondent”, hereafter), the sole

contesting party, as the other respondents are not interested in the service

any longer, according to the information presented to us from the Bar.

4. The factual matrix of the appeal, culled out from the records, is as follows:

a. The President of India vide a Notification dated 27th December, 1990,

framed the Department of Posts (Postal Assistants and Sorting

Assistants) Recruitment Rules, 1990 (“1990 Rules”, hereafter). The

Schedule to the 1990 Rules outlined the educational qualifications

required for the post of Postal Assistants and Sorting Assistants for

direct recruits as “10+2 standard or 12th class pass of recognised

University/ Board of School Education/Board of Secondary Education”.

The 1990 Rules stood amended by the Department of Posts (Postal

Assistants and Sorting Assistants) Recruitment (Amendment) Rules

1991 (“Amendment Rules”, hereafter) vide a Notification dated 31st

January, 1992. As a result of the amendment in the Schedule to the

3 Original Application No.384 of 1996 4 Review Application No.7 of 1999 2 1990 Rules, candidates who had pursued their intermediate education

in “vocational stream” were excluded from being considered for the post

of Postal Assistants and Sorting Assistants.

b. This being the position of the recruitment rules, the Superintendent of

Post Office, Kheri vide a letter dated 17th April, 1995 requisitioned from

the District Employment Officer, Lakhimpur Kheri a list of eligible

candidates for the purpose of recruitment of 10 (ten) Postal Assistants

in Lakhimpur Kheri postal division for the year 1995. According to the

requisition, the candidates were required to have qualified in the

intermediate examination from the Uttar Pradesh Intermediate

Education Council, Allahabad or equivalent. Apart from such requisition,

applications were also invited through an advertisement dated 12 th

June, 1995.

c. All the respondents herein, among other candidates, took the written,

typing, aptitude and computer tests and attended the interview which

were conducted as a part of the selection process. A merit list was

notified vide a Notification dated 22nd November, 1995 on the basis of

marks obtained by the participating candidates. The names of the

respondents figured quite high in the merit list, following which all of

them were attached to the Kheri Post Office for 15 days pre-induction

training starting from 15th March, 1996. The same was to be followed

by a long-term training. However, the Chief Post Master General sent a

letter dated 22nd March, 1996 to various Postmasters General. Referring

to letters dated 31st January, 1991 and 5th January, 19965 (sic)

3 regarding recognition of educational qualification of 10+2/Intermediate

from the vocational stream for direct recruitment, it was conveyed that

certificates issued by the Board of High School and Intermediate

Education should be admitted unless “these are marked as vocational

stream or vocational”. This resulted in holding back of the respondents,

who were not sent for long-term training. This triggered the instant

litigation.

d. Dissatisfied with the aforesaid letter dated 22nd March, 1996, the

respondents approached the Tribunal contesting the legality thereof.

Since they had already succeeded in clearing the prescribed

examinations, consequent to which their names figured in the merit list,

it was prayed that the appellant be directed to send the respondents

for the long-term training and consequently, be appointed as Postal

Assistants in Lakhimpur Kheri. The Tribunal, vide order dated 6th May,

1999, decided in favour of the respondents. The relevant part of the

order is extracted hereunder:

“4. […] The column of educational qualification provides that a candidate who passed the Intermediate Examination of Board of secondary Education or equivalent. Copy, as published in the Newspaper, on 12.6.95 Annexure A-1 to the O.A. shows that the educational qualification required was Intermediate (10+2) Examination passed. Thus neither, in the communication (Annexure R-1) sent to the Employment Exchange Lakhimpur Kheri or in the advertisement given in the Newspaper (Annexure A-1 to the O.A.) there was mention that the candidates who cleared the Intermediate (10+2) examination with 'vocational subject' would not be eligible. In view thereof, all the 4 applicants fulfilled educational qualification as published in the newspaper. advertisement and as mentioned in the communication sent to the Employment Exchange for sponsoring the names. ***

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6. In view of the discussions made above, the respondents are directed to send the applicants for further required training and on completion thereof, and other formalities, to appoint the applicants as Postal Assistants. The seniority of the applicants would not be affected by reason of their subsequent appointment and they would get their seniority as may be admissible in the rules, as if they were sent for training along with their juniors.”

e. Aggrieved thereby, the appellant preferred a Review Application before

the Tribunal which dismissed it vide order dated 30th May, 2000 with an

observation that the grounds for review under Order XLVII Rule 1 of

the Code of Civil Procedure, 1908 (“CPC”, hereafter) are very limited,

and the appellant has failed to raise any substantial ground for review.

f. Questioning the aforesaid judgment and order of the Tribunal, the

appellant approached the High Court praying that the same be set-

aside.

g. The High Court, vide the impugned judgement dated 4th April, 2017,

upheld the orders of the Tribunal reasoning that no amendment in the

1990 Rules had been effected and that the letter dated 22nd March,

1996 was only an executive order/clarificatory instruction which could

not have amended the 1990 Rules; hence, denial of appointment to the

third respondent (alongside other respondents impleaded therein)

based solely on such letter was unwarranted. Finding no manifest error

in the impugned judgment and order of the Tribunal, the High Court

dismissed the Writ Petition.

h. After dismissal of the Writ Petition, the appellant preferred a Review

Application before the High Court. Vide order dated 10th December,

5 2021, the High Court dismissed the review application observing that a

court exercising review jurisdiction under section 114 of the CPC read

with Order XLVII Rule 1 thereof has a very narrow and limited scope to

interfere and that the judgment and order under review did not suffer

from any mistake or error apparent on the face of the record warranting

interference.

5. Ms. Bhati, learned Additional Solicitor General appearing on behalf of the

appellant, while taking exception to the impugned judgments and orders raised

the following contentions:

a. The Amendment Rules were already on record as Annexure 7 to the

Writ Petition filed before the High Court. As the Amendment Rules had

not been taken note of by the High Court during arguments, the

judgment and order dated 4th April, 2017 suffered from an error

apparent on the face of the record which necessitated the Review

Application. In this light, she submitted that the Review Application

urged a substantial ground within the framework of Order XLVII of the

CPC which, unfortunately, the High Court failed to consider. Dismissal

of the Review Application, in the circumstances, was manifestly

erroneous.

b. As the Amendment Rules had come into force prior to the

commencement of the present selection process in 1995, it was

imperative that the educational qualifications for appointment on the

posts of Postal Assistants conformed to the amended Schedule, i.e.,

10+2 standard or 12th class pass from a recognized University or Board,

6 excluding vocational streams; consequently, selection of any candidate

possessing vocational qualification would stand incompatible with the

amended Schedule and any appointment in breach of the 1990 Rules,

as amended, would be void ab initio.

c. The third respondent fell short of the prescribed eligibility qualifications

for being directly recruited, as specified in the relevant recruitment

rules and as a sequel thereto, his selection was by mistake which the

appellant had/has a right to rectify. Since the third respondent was

sought to be disqualified not based on any executive order but based

on a true and proper interpretation of recruitment rules framed under

Article 309 of the Constitution, the High Court committed grave error

in not interfering with the direction of the Tribunal to appoint the

applicants before it.

6. Resting on the aforesaid submissions, Ms. Bhati prayed that the orders under

challenge be set aside and the original application before the Tribunal dismissed.

7. Mr. Mishra, learned counsel appearing on behalf of the third respondent while

supporting the impugned judgments and orders, advanced the following

submissions:

a. Concurrent findings returned by the Tribunal and the High Court should

not be interfered with as the letter dated 22nd March, 1996, through

which the words “excluding vocational streams”, were made the basis

of depriving the third respondent of an appointment is nothing but an

executive order.

7 b. Rule 1(2) of the Amendment Rules itself provided that the amendment

would be enforced after publication of the same in the official gazette

and there is no gazette publication in respect of said rules till date.

c. The name of the third respondent was sponsored by the District

Employment Officer in view of the requisition made by the appellant.

Through the letter dated 17th April, 1995, the appellant had explicitly

stated that the educational requirement for Postal Assistant will be

intermediate education from a recognised board. It was neither

mentioned in the advertisement nor in the aforesaid letter that

candidates with “vocational streams” would be excluded. As such, the

third respondent had fulfilled the requisite criteria; and denying him an

appointment is against the settled law that rules of the game cannot be

changed during the recruitment process.

d. Even otherwise, the certificate of the third respondent issued by the

Board of High School and Intermediate Education, Uttar Pradesh (“said

Board”, hereafter) on 24th July, 1991 clearly manifests that he was a

student of the ‘Regular’ stream and could not have been disqualified on

the ground that he had pursued education at the 10+2 level in the

vocational stream.

8. Asserting that the impugned judgments and orders are free from legal

infirmities and stressing on the concurrent findings recorded therein, Mr. Mishra

submitted that the appeal is devoid of any merit and, consequently, warrants

outright dismissal.

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9. We have heard counsel for the parties and perused the materials on record.

10. The submission of Mr. Mishra that the Amendment Rules were not published

in the official gazette is without any substance. It appears that the Amendment

Rules were duly published in the Gazette of India dated 15 th February, 1992, a

copy whereof has been produced by Ms. Bhati. She is, therefore, right in her

contention that the Amendment Rules became operational on and from 15th

February, 1992, much before the process for recruitment had commenced.

11. It is true that neither in the letter dated 17th April, 1995 requisitioning names

of eligible candidates from the Employment Exchange nor in the advertisement

dated 12th June, 1995 inviting applications from eligible candidates was it

mentioned that the candidates clearing the requisite examination conducted by a

recognized University or Board through vocational stream would stand excluded.

However, nothing much turns on it. Law is well-settled that if qualifications

mentioned in an advertisement inviting applications are at variance with statutorily

prescribed qualifications, it is the latter that would prevail. Profitable reference in

this connection may be made to the decisions of this Court in Malik Mazhar

Sultan v. U.P. Public Service Commission5 and Ashish Kumar v. State of

Uttar Pradesh6.

12. It is observed that the Tribunal or the High Court did not have the occasion to

advert to the certificate issued in favour of the third respondent and proceeded to

decide the Original Application, the Writ Petition and the Review Applications

5 (2006) 9 SCC 507 6 (2018) 3 SCC 55 9 without any reference to the Amendment Rules because of inept handling of the

case by the appellant. We are in agreement with Ms. Bhati that at least the High

Court, having regard to the disclosure of the Amendment Rules in the Writ Petition

as well as the ground urged in the Review Application, was clearly wrong in not

rectifying the error which was apparent on the face of the record.

13. However, the aforesaid observations of ours do not advance the cause of the

appellant in view of the contention advanced on behalf of the third respondent

referring to the certificate which was issued to him by the said Board. Such

certificate enumerates the subjects which he read during his intermediate

education. Out of a total of four subjects, two of them (Hindi and English) are

described as vocational subjects. Importantly, the certificate which is partly in

vernacular also bears at its foot the remark ‘Regular’ in English. It has been

contended on behalf of the third respondent that ‘Regular’ in the certificate

signifies regular stream and not vocational stream.

14. Normally, it is not the function of the court to determine equivalence of two

qualifications and/or to scrutinise a particular certificate and say, on the basis of

its appreciation thereof, that the holder thereof satisfies the eligibility criteria and,

thus, is qualified for appointment. It is entirely the prerogative of the employer,

after applications are received from interested candidates or names of registered

candidates are sponsored by the Employment Exchanges for public employment,

to decide whether any such candidate intending to participate in the selection

process is eligible in terms of the statutorily prescribed rules for appointment and

also as to whether he ought to be allowed to enter the zone of consideration, i.e.,

10 to participate in the selection process. It is only when evidence of a sterling quality

is produced before the court which, without much argument or deep scrutiny, tilts

the balance in favour of one party that the court could decide either way based on

acceptance of such evidence.

15. Notwithstanding this settled legal position, the stage when ineligibility is cited

for not offering employment also assumes importance. It is indeed indisputable

that none has any legal right to claim public employment. In terms of Article 16 of

the Constitution, a candidate has only a right to be considered therefor. Once a

candidate is declared ineligible to participate in the selection process at the

threshold and if he still wishes to participate in the process perceiving that his

candidature has been arbitrarily rejected, it is for him to work out his remedy in

accordance with law. However, if the candidature is not rejected at the threshold

and the candidate is allowed to participate in the selection process and ultimately

his name figures in the merit list - though such candidate has no indefeasible right

to claim appointment - he does have a limited right of being accorded fair and non-

discriminatory treatment. Given the stages of the process that the candidate has

successfully crossed, he may not have a vested right of appointment but a

reasonable expectation of being appointed having regard to his position in the

merit list could arise. The employer, if it is a State within the meaning of Article 12

of the Constitution, would have no authority to act in an arbitrary manner and

throw the candidate out from the range of appointment, as distinguished from the

zone of consideration, without rhyme or reason. The employer-State being bound

by Article 14 of the Constitution, the law places an obligation, nay duty, on such

an employer to provide some justification by way of reason. If plausible

11 justification is provided, the courts would be loath to question the justification but

the justification must be such that it is rational and justifiable, and not whimsical

or capricious, warranting non-interference.

16. In the facts of the present case, the stage of declaration of ineligibility seems

to us to turn the tide in favour of the third respondent. If the appellant had declared

the third respondent as ineligible based on the appellant’s appreciation of the

educational qualification of the third respondent at the threshold, the situation

would have entirely been different. However, it was not at the threshold that the

third respondent was considered ineligible. As the factual narrative would reveal,

the appellant had considered the third respondent eligible, allowed him to take

part in the various tests in connection with the selection process, interviewed him,

placed his name quite high in the merit list, and thereafter sent him for 15 days’

pre-induction training starting from 15th March, 1996. It was after a week that the

letter dated 22nd March, 1996 was issued which resulted in ouster of the third

respondent from the range of appointment.

17. There is little doubt that the decision to treat the third respondent as ineligible

was based on the certificate; however, there is no gainsaying that the certificate

produced by the third respondent in support of his claim that he had qualified in

the relevant examination and, thus, was eligible to be considered for appointment,

did leave room for two views. It is settled law that unfettered discretion,

unaccountable approach and arbitrariness in State action are antithesis to

Article 14; and, particularly when two views could possibly emerge looking at the

certificate of educational qualification placed by the third respondent, with both

12 views not being wholly unworthy of acceptance, fairness in administrative

procedure demanded that the appellant ought to have given reason, howsoever

brief, as to why it preferred to consider the third respondent to have succeeded in

the relevant examination through “vocational stream”, thereby attracting

ineligibility, without considering the effect of the remark ‘Regular’ at the foot of the

certificate. The contents of the letter dated 22nd March, 1996, which sounded the

death knell for the third respondent, is clearly suggestive of a general direction

given to the addressee Postmasters General; they were not called upon to

scrutinise each certificate on its merits. As such, there was no individual rejection

but a general rejection without applying one’s mind to the contents of the

certificate. It was, thus, highly improper for the appellant to reject the candidature

of the third respondent outright in the absence of a proper appreciation of the

certificate.

18. Even if it is assumed that the certificate was duly looked into, we are inclined

to the view on facts (given the contents of the certificate produced by the third

respondent and in the absence of conclusive information as to the nature of

education imparted to the third respondent at the intermediate level) that the

appellant ought to have, in the least, requested for a clarification from the said

Board as to whether the third respondent could be treated to have cleared the

intermediate examination of 1991 in “vocational stream” or in the category of

‘Regular’ and, thus, was (in)eligible to compete for appointment in terms of the

1990 Rules, as amended. It was not within the province of the appellant to

scrutinise the certificate of the third respondent with an approach of “one eye

open, one eyed closed” and declare that his intermediate education was in a

13 “vocational stream”, overlooking or ignoring that the self-same certificate bore the

remark ‘Regular’. The determination of the appellant, in the present case,

undoubtedly hinged on its scarce knowledge of the nature of the third respondent’s

education, evincing that his exclusion was not on the basis of a valid and proper

reason and was, decidedly, arbitrary.

19. The principle that if two views are reasonably possible on a given set of facts

and that the courts would stay away from interference and not substitute its view

for the view taken by the employer, may not apply in a case of the present nature

where the conflicting views could be resolved by a mere reference to the certificate

issuing authority to clarify what the certificate connoted. After all, the future of a

prospective appointee called for an approach consistent with the preambular

promise of securing justice and equality of opportunity, which the appellant failed

to secure.

20. The third respondent, in our view, has been discriminated against and

arbitrarily deprived of the fruit of selection. At this distance of time, it would not

be worthwhile to order a remand particularly when the appellant is responsible for

the lis being prolonged in excess of two decades. There has been utter carelessness

on its part in not producing the Amendment Rules and the gazette notification

before the Tribunal. The third respondent, therefore, cannot suffer for such

carelessness and has to be given what is due to him. At the same time, we cannot

overlook that by passage of time, the third respondent has crossed the maximum

age for entry into public employment. He is 50 years old now and the age of

superannuation is reported to be 60 years. In such a situation, we propose to

14 dispose of this appeal by making appropriate directions in exercise of our power

to do complete justice between the parties under Article 142 of the Constitution.

21. Accordingly, it is directed that:

(i) The third respondent shall be offered appointment, initially on

probation, by the appellant on a post of Postal Assistant (for which he

was selected) within a month from date;

(ii) If no post is vacant, a supernumerary post shall be created;

(iii) Subject to satisfactory completion of the period of probation, the third

respondent shall be confirmed in service;

(iv) Should service rendered during probation be considered not

satisfactory, the appellant will be entitled to proceed in accordance with

law;

(v) Having not actually worked, the third respondent shall neither be

entitled to arrears of salary nor shall he be entitled to claim seniority

from the date of appointment of other candidates who participated in

the recruitment process of 1995;

(vi) Since the third respondent, if confirmed after successful period of

probationary service, would have less than 10 years’ service to his

credit and consequently would fall short of qualifying service for

pension and other retiral benefits, the appellant shall treat him to have

been notionally appointed on the date the last of the selected

candidates was appointed pursuant to the process of 1995 only for the

purpose of release of such benefits in accordance with law; and

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(vii) In such case, his retiral benefits shall be computed based on the last

pay drawn by him while in service.

(viii) These directions will not be applicable to any respondent, other than

the third respondent.

22. With the above directions, the appeal stands disposed of together with

pending applications, if any. Parties shall, however, bear their own costs.

...................................J. (BELA M. TRIVEDI)

…................................J. (DIPANKAR DATTA) NEW DELHI;

11th OCTOBER, 2023.

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