Madhya Pradesh Public Service Commission v. Manish Bakawale & Ors.

A. S. BOPANNA, J. 1. The appellant-Madhya Pradesh Public Service Commission is assailing the order dated 08.11.2019 passed by the High Court of Madhya Pradesh in W.A. No.474 of 2019. Through the said order the learned Division Bench of the High Court has dismissed the intra-court 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 th e case of respondent No.1 herein for appointment on the post of the Chief Municipal Officer (‘CMO’ for short) Grade-Kh, 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 i ssued 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 d etailed information and it clearly indicated the 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 Measurem ent 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 requir ed physical measurement. Pursuant to such applications, the preliminary examination and the written examination 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 res pondent 983 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 mer it list for the post of Deputy Superintendent of Police. Accordingly, the resp ondent 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 N o.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 made to the other posts it revealed that a schedule caste candidate who had secured 892 ma rks 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 accepte d such contention had allowed the writ petition and directed consideration. The learned Division Bench approved the same. It is in that circ umstance the appellant, which is the authority saddled with the responsibili ty of undertaking the selection process is before this Court in this appeal. 5. We have heard Dr. Harsh Pathak, learned counsel for t he 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 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 w ould 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 conclus ion 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 pre ference 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 t he basis of the higher priority of post, he could not be appointed on the said MADHYA PRADESH PUBLIC SERVICE COMMISSION v. MANISH BAKAWALE & ORS. [A. S. BOPANNA, J.] 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 appella nt 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 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 obtai ned by them and preference sheet (if any) submitted by them. If a candidate is selected in the main list on the basi s 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 referr ed to the advertisement which contains the details of the requirement and the qualification for the post. Since the respondent No.1 had indicat ed his second preference to the post of Deputy Superintendent of Polic e 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 pos t of Deputy Superintendent of Police explicitly stated in the advertisement needs to be noted, which is as hereunder: - Physical Measurement: The physical measurement prescribed for the posts of Deput y Superintendent of Police, Assistant Jail Superintendent and Deputy Transport Inspector are as under: 985 9. In that background reference is made to the appl ication 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. How ever, what is relevant to be noted is the declaration which is required to be made b y the candidate in the application, which reads as hereunder: - “DECLARATION * 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 qualificati on, experience, physical measurement etc. for those posts. * On being found ineligible at any stage of selectio n, 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 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 a nd the warning, as also the undertaking read as hereunder:- MADHYA PRADESH PUBLIC SERVICE COMMISSION v. MANISH BAKAWALE & ORS. [A. S. BOPANNA, J.] “INSTRUCTIONS CONCERNING TO ELIGIBILITY: • It may be ensured at the time of filling of precede nce/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 th e 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 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 al l 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 pos t 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 therefor e opted 987 for the said post. In that background, the appellant while taking note of the preference and the marks obtained in the 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 advert ised 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 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 i n such manner. Subsequently if there is a change in the physical measurement, the same should 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 interpret ed 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 f or which preference was given, he could not be appointed as he had not obtained MADHYA PRADESH PUBLIC SERVICE COMMISSION v. MANISH BAKAWALE & ORS. [A. S. BOPANNA, J.] 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 put-forth by the learned counsel for the parties, it is evident that though several posts were advertised and the 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 f or 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 sel ected against such post depending on the merit in the examination. To th at extent Rule 4(3)(c)(2) of Rules 2015 noted above is clear and specif ic that the category-wise recommendation of the candidates will be made according to the marks obtained by them and the prefere nce sheet submitted by the candidate. Clause (2) of Sub-Rule (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. 15. In the instant case, the fact that the respondent No.1 had given his preference to the post of Deputy District Collect or, Deputy Superintendent of Police and thereafter to the other posts including CMO in that order of preference is not in dispute. The further fa ct 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 not ified 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. 989 16. While taking note of this position, what is also to be kept i n view is the additional eligibility criteria for the said post which had been clearly depicted in the advertisement calling for applicatio ns 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 cours e 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 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 s election, 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, inc luding 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 theref ore 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 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 MADHYA PRADESH PUBLIC SERVICE COMMISSION v. MANISH BAKAWALE & ORS. [A. S. BOPANNA, J.] included in Section 40(1) relating to acquisition of property f or the company and in that context while considering the same it has been observed by this Court that literal interpretation is not alw ays 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 Rule 443 and 2 (pp) of the Telegraph Rules to consider where the telephone standing in the name of one spouse could be dis-connected for non-payment 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 put-forth 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 sai d decisions there can be no quarrel whatsoever. The learned counsel for respondent No.1 has also placed before us the decision of the G ujarat High Court in the case relating to recruitment proce ss which was considered in D.G. Dalal vs. State of Gujarat (2002) 2GLR 1011. No- doubt in the said case, Rule 9 of Rules 1969 which was consi dered 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 i ssue 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 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 R ule had been considered to indicate the manner in which the Rule is to be operated. In 991 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 b enefit of the departments under the government was not one post after the other on completing the entire process to the higher post. Sinc e, a common examination was held and the common merit list was prepare d, 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 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 indic ated 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 responde nt No.1 who had made declaration about the correctness of his eligibili ty and secured the selection to be placed in the main list for t he 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 accepte d, 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 int erference is made in the process of selection, apart from the fact that it could interfere with the administrative process would also cause ha rdship to the candidates who have already been appointed and are not before th is Court. In the present facts and circumstances, the Rule concerned provides for a definite process, which was also dep icted 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. MADHYA PRADESH PUBLIC SERVICE COMMISSION v. MANISH BAKAWALE & ORS. [A. S. BOPANNA, J.] 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. 22. Pending application, if any, shall stand disposed of. Divya Pandey Appeal allowed.