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Madhya Pradesh High Court · body

2011 DIGILAW 56 (MP)

Amit Sahni v. M. P. Public Service Commission

2011-01-13

R.S.JHA, S.R.ALAM

body2011
ORDER 1. By means of this petition under Article 226 of the Constitution of India the petitioners have prayed for following reliefs :- "(1) That the said rule No.8 clause (ii) be declared ultra vires as it debars petitioner to appear in exams, though they would be eligible on the date of examination. (2) That any further relief, the Hon'ble Court deems fit, may kindly be granted. (3) That the recruitment procedure adopted by the respondent to be declared illegal and examination for recruitment of Assistant Public Prosecutor Officer (ADPO) to be cancelled." 2. We have heard the petitioner No. 1 in person and the learned counsel appearing for the respondents. 3. The brief facts leading to filing of the present petition are that the petitioner at the relevant time was a final year law student prosecuting studies in the Rani Durgawati Vishwavidyalaya, Jabalpur and had already appeared in the final examination which ended in the middle of July, 2010. It is alleged that the University, without any reasonable cause, held the examination late on account of which the result of the examination was also declared late sometime in the month of September, 2010. In the meanwhile; the respondent No.1 i.e. the Public Service Commission issued an advertisement dated 5.7.2010 inviting applications for appointment on the post of Assistant District Public Prosecution Officer from persons having minimum eligible qualification of graduation in law or equivalent degree and the last date for filling up on line forms was fixed as 10.8.2010. It was further specifically mentioned that the examination and selection for appointment on the post of Assistant District Public Prosecution Officer would be held on 14.11.2010. 4. It is stated that the petitioner had appeared in the final year law examination but as the result thereof was not declared as on the last date fixed for filling up the application form, his form could not be submitted and, therefore, he filed a representation before the respondent No. 1 on 20.7.2010 requesting them to permit the petitioner to provisionally participate in the examination subject to furnishing of the result of the final year law examination as and when the same would be declared, however, no reply thereto was given by the respondents. As the petitioner was not permitted to participate in the examination he has filed the present petition assailing the constitutional validity of Rule 8 (2) of M.P. Public Prosecution (Gazetted) Services Recruitment Rules, 1991 (hereinafter referred to as the Rules of 1991) which reads as under: (ii) Educational Qualification - The candidate must possess the educational qualifications prescribed for the service as shown in Scheduled III: Provided that - (a) In exceptional cases the Commission may, on the recommendations of the Government, treat as qualified a candidate, who though not possessing any of the qualifications prescribed in this clause, has passed examinations conducted by other institutes by a standard which, in the opinion of the Commission, justifies the admission of the candidates for selection; and (b) Candidates who are otherwise qualified but have taken degrees from foreign Universities being Universities not specifically recognised by Government may also be considered for selection at the discretion of the Commission." 5. It is submitted by the petitioner that Article 16 of the Constitution of India guarantees equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. It is stated that the fundamental right guaranteed by Article 16 is violated by the provisions of Rule 8 (2) of the Rules of 1991 which provides that only those candidates who possess the minimum educational qualifications prescribed therein would be eligible to participate in the selection, thereby excluding the petitioner. The petitioner submits that the aforesaid Rule is ultra vires and unconstitutional as it violates the petitioner's fundamental right to equality of opportunity guaranteed under Article 16 of the Constitution of India. It is submitted that every citizen is guaranteed equality of opportunity in matters of employment and, therefore, they cannot be excluded or prohibited from participating in the selection process by prescribing eligibility qualifications and thus submitted that the examination held may be annulled. 6. To appreciate the submissions of the petitioner the relevant provisions need to be considered. It is submitted that every citizen is guaranteed equality of opportunity in matters of employment and, therefore, they cannot be excluded or prohibited from participating in the selection process by prescribing eligibility qualifications and thus submitted that the examination held may be annulled. 6. To appreciate the submissions of the petitioner the relevant provisions need to be considered. Article 16 (1) of the Constitution of India is in the following terms :- "Art. 16 (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State." The scope of the aforesaid Article came up for consideration before a Constitution Bench of the Supreme Court in the case of Banarsidas and others v. State of U.P and others, AIR 1950 SC 520, wherein the petitioners challenged departmental instructions by which it had been directed not to employ part time Patwaris having unsatisfactory record of service. While interpreting the provisions of Article 16 of the Constitution of India it was held by the Supreme Court that the appointing authority has the power to lay down the requisite qualifications for recruitment in Government service as a pre-requisite condition for appointment and the Government is entitled to pick and choose from amongst large number of candidates offering themselves for employment and, therefore, the prescription of such condition was not violative of Article 16 of the Constitution of India. In the case of General Manager Southern Railway and another v. Rangachari, AIR 1962 SC 36 the Supreme Court, while considering the applicability of the aforesaid Article to cases of promotion also observed that equality of opportunity guaranteed under Article 16 of the Constitution of India need not be confused with absolute equality as such and held that what is guaranteed is equality of opportunity and nothing more and Article 16 (1) and (2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office and any provisians as to the qualifications for the employment or appointment to office reasonably fixed and applicable to all the citizens would certainly be consistent with the doctrine of equality of opportunity. The aforesaid view was again affirmed by the Supreme Court in the case of State of Kerala and another v. N.M. Thomanand others, (1976) 2 SCC 310 . 7. The aforesaid view was again affirmed by the Supreme Court in the case of State of Kerala and another v. N.M. Thomanand others, (1976) 2 SCC 310 . 7. It is, therefore, clear that Article 16 does not prohibit or prevent the State from prescribing requisite educational or eligibility qualifications while making appointments and permits the State to prescribe reasonable and necessary eligibility qualifications applicable to all citizens far appointment to any office and make a selection from amongst all those who possess the same. It is also clear that there can be no denial of equality of opportunity unless the person who complains of discrimination establishes that he is similarly placed or situated hence entitled to have been considered or appointed. Article 16 permits reasonable classification of employees and reasonable tests for their selection. 8. In the instant case as the petitioner did not possess the pre-requisite eligibility qualifications he is not entitled to claim parity nor is there any violation of his fundamental right guaranteed under Article 16 of the Constitution of India as he is not equivalently situated or belonging to the same class of persons who possessed the requisite qualifications and were permitted to participate in the selection process. As the petitioner did not belong to the same class of persons who possessed the necessary qualifications it logically fallows that he cannot claim equality or similar treatment along with them. 9. It is pertinent to note that the Rules of 1991 relates to selection and appointment of Prosecution Officers who must necessarily possess adequate and sufficient knowledge of law and it is with this abject in mind that the Rules of 1991 prescribe that the person offering himself far selection must be a graduate in law as a minimum eligibility qualification. The prescription of the aforesaid qualification has reasonable and logical nexus with the abject sought to be achieved and, therefore, cannot be found fault with. The validity of the Rules has not been challenged an any other ground. In view of the aforesaid we do not find any merit in the submission of the petitioner regarding unconstitutionality of the Rule 8 (2) of the Rules of 1991. 10. The validity of the Rules has not been challenged an any other ground. In view of the aforesaid we do not find any merit in the submission of the petitioner regarding unconstitutionality of the Rule 8 (2) of the Rules of 1991. 10. It has equivocally been stated by the petitioner himself that he was not possessing the qualification of graduation in law which is the requisite eligibility qualification prescribed for participating in the selection, as an the date of submitting the application farm. In view of the aforesaid admitted and undisputed factual aspect, we are of the considered opinion that he has been rightly denied participation in the selection process. It is settled law that a candidate must possess the requisite qualification prescribed by the last date of submission of the application in case no other cut of date is specified as has been held by the Supreme Court in the cases of Ashok Kumar Sharma and others v. Chander Shekhar and another, (1997) 4 SCC 18 and Ashok Kumar Sonkar v. Union of India and others, (2007) 4 SCC 54 , and therefore, he has rightly been denied participation in the selection process. We do not find any substance in the submission of the petitioner as he was not possessing the requisite qualifications as prescribed in the Rules and the advertisement and consequently had no right to apply for the post or to appear in the examination. 11. The reliance placed by the petitioner on the case of Prem Singh and others v. Haryana State Electricity Board and others, (1996) 4 SCC 319 is also misplaced as the aforesaid judgment has no applicability to the facts of the present case. In the case of Prem Singh (supra) the respondents were filling up more posts than those advertised and in that background it was held that the petitioner therein could challenge the selection even if he was not eligible at the time of advertisement as the vacancies could not have been filled up by the authorities without there being any fresh advertisement and in that context it was observed by the Supreme Court that:- "The petitioner who was not eligible had a just grievance that due to appointments of candidates in excess of the posts advertised he was deprived of the right of consideration for appointment against the posts which would have become vacant after he acquired eligibility." 12. No other point is urged. 13. In view of the above, we are of the considered opinion that the provisions contained in Clause (ii) of Rule 8 of the Rules of 1991 do not violate the petitioner's fundamental rights guaranteed by Article 16 of the Constitution of India and cannot be held to be ultra vires. As there is no merit in this petition it is accordingly dismissed.