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Supreme Court of India
Nitesh Kumar Pandey vs The State Of Madhya Pradesh on 7 February, 2020Author: A.S. Bopanna
Bench: R. Banumathi, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1215 OF 2020
(Arising out of SLP (Civil) No.28123 of 2018)
Nitesh Kumar Pandey .…Appellant(s)
Versus
The State of Madhya Pradesh & Ors. …. Respondent(s)
WITH
C.A.No. 1216 /2020 @ SLP(C) No.27200/2018
C.A.Nos.12171218/2020 @ SLP(C) Nos.32253226/2020
(D.No.41845/2018)
JUDGMENT
A.S. Bopanna,J.
Leave granted.
2. The appellant in the appeal arising out of SLP
No.27200 of 2018 was the appellant in WA No. 509/2018
before the High Court of Madhya Pradesh. In the said
Signature Not Verified writ appeal, the appellant was assailing the order passed
Digitally signed by
MAHABIR SINGH
Date: 2020.02.07
by Learned Single Judge dated 02.04.2018 in W.P.No.
17:05:52 IST
Reason:
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1494/2017 and W.P.No. 21425/2016. The appellant in
the appeal arising out of SLP No. 28123 of 2018 was the
appellant in WA No. 533/2018 in the High Court of
Madhya Pradesh. The said appeal was filed assailing the
order of Learned Single Judge dated 29.07.2016 in
W.P.No.12689 of 2016. The appellant in the appeal
arising out of SLP(C) D.No. 41845, was the appellant in
W.A No. 207/2017 before the High Court of Madhya
Pradesh. The said appeal was disposed of by order dated
28.08.2018 in terms of the order dated 06.08.2008 in
R.P.No. 682/2018. Though two separate orders dated
06.08.2018 passed in WA Nos. 509 and 533/2018 and
order dated 28.08.2018 in W.A.No.207/2017 are assailed
in these appeals, since the issue is common and all the
writ appeals have been disposed of by the High Court
relying upon its earlier orders, these appeals were taken
up together, heard and are being disposed of by this
common judgment.
3. The issue relates to the selection to the post of
Gram Rojgar Sahayak in the Panchayat of the Rewa
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District in Madhya Pradesh. Though the issue presently
pertains to the method adopted in the selection process
in Rewa District, the scheme applicable to the entire state
of Madhya Pradesh for such recruitment of Gram Rojgar
Sahayak for implementation of the Mahatma Gandhi
National Rural Employment Guarantee Scheme
(‘MGNREGS’ for short) is to be taken note and the matter
is to be decided in that background. As noted, the issue
presently being limited to the selection process in Rewa
District assailing the method that was followed therein, it
is seen that a batch of writ petitions relating to the same
process were earlier considered by a Learned Single
Judge through the order dated 15.07.2016 and had
allowed the writ petitions bearing W.P.No.17183/2014
and the analogous matters. Challenge to the said order
had concluded through the order passed by the Division
Bench in W.A.No.479/2016 and the second Review
Petition in R.P.No.682/2018. In that circumstance, since
in the present case the contentions put forth by the
appellants herein before the Division Bench of the High
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Court was similar to the said cases, the Division Bench of
the High Court had dismissed the said writ appeals
bearing W.A.Nos.509/2018, 533/2018 and
W.A.No.207/2017. The appellants claiming to be
aggrieved are, therefore, before this court in these
appeals.
4. At the outset, it is to be noted that though the
orders dated 06.08.2018 and 28.08.2018 passed in the
Writ Appeals relating to the appellants herein are
assailed, the relied upon order which contains the
reasoning adopted by the High Court is not assailed in
these appeals. That apart the SLP against the earlier
order is already dismissed. Be that as it may, since the
issue urged herein is to assail the relief granted to the
writ petitioners by the High Court, the consideration of
the correctness or otherwise is to be made in that regard.
5. Heard Mr. Anoop G. Chaudhari, Ms. June
Chaudhari and Mr. Satyam Reddy, respective learned
Senior Advocates for the appellants, Mr. Santosh Paul,
learned Senior Advocate for the private respondent and
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Mr. Rahul Kaushik, learned Advocate for the State of
Madhya Pradesh. In that light we have also perused the
appeal papers.
6. The brief facts are that the official respondents
invited applications for appointment to the post of Gram
Rojgar Sahayak. The said appointment was to be made in
terms of the fresh guidelines dated 02.06.2012 issued by
the Madhya Pradesh State Employment Guarantee
Parishad which is a registered institution constituted
under the Panchayat and Rural Development
Department. As per the same, one Gram Rojgar Sahayak
per panchayat was to be appointed under the MGNREG
scheme. The said guidelines provided for the
qualifications which were classified as (a) Compulsory
qualifications and (b) Desired qualifications. The
compulsory qualifications specified was with regard to
the basic education qualifications and under the Desired
qualifications it referred to computer exam pass from any
one institution mentioned in the memo of General
Administration Department. Clause (8) of the said
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guidelines also provided with regard to the Selection
process whereunder subClause (8) therein further
provided for the assignment of maximum marks under
each of the criteria stated therein. In so far as the
computer examination, the pass certificate from the
different Universities are named therein and the
maximum marks of ‘50’ is provided thereunder.
7. Though the selection process was to be conducted
based on the criteria and the method of assessment
provided under the guidelines dated 02.06.2012, the
office of Collector, Rewa, Madhya Pradesh issued a
Revised Time Schedule for recruitment of Gram Rojgar
Sahayak, dated 17.06.2014 and the date for initiation of
recruitment was indicated as … ‘before 20 th June, 2014’.
Similarly, the schedule for the different stages in the
selection process was indicated. At serial No.9 of the
Revised Time Schedule, the outer date was indicated for
holding of computer efficiency test of selected candidates
and those at the top of the merit list, which was to be
held before 18th September. Pursuant to the same, the
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process was conducted but the writ petitioners were
removed from the select list based on the result of the
computer efficiency test. Since the computer efficiency
test was not contemplated as a criteria for selection
under the fresh guidelines dated 02.06.2012, the writ
petitioners assailed the same before the Learned Single
Judge, in the said batch of writ petitions.
8. The Learned Single Judge after taking note of the
above facts arrived at the conclusion that the reading of
the scheme shows that the selection procedure and
methodology of giving marks do not include the computer
efficiency test and the marks arising out of such test. The
writ petitioners were meritorious and their names were in
the merit list, but for the marks of the computer
efficiency test being included. In view of that position, the
writ petitioners were taken out of the select list which
was held, not justified. In that regard, the Learned Single
Judge had taken note that the method was altered after
the selection process had commenced which is not
permissible. It was held that the introduction of the
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computer efficiency test midway was contrary to the
settled legal position and as such disapproved the action
of the respondents in prescribing the computer efficiency
test, dehors the common guidelines. Accordingly, the writ
petitions were allowed. The candidates who had
benefitted in the selection process due to the holding of
computer efficiency test preferred the writ appeals
claiming to be aggrieved. The Division Bench of the High
Court having taken note of the factual aspects had
agreed with the reasons assigned by the Learned Single
Judge and dismissed the writ appeals. The review
petitions in R.P.No.611/16, 612/16 and connected
matters were also rejected through order dated
17.10.2016, save certain observations made relating to
the protection of meritorious candidates who had also
appeared for the computer efficiency test. The Special
Leave Petitions filed before this Court by some of the
appellants had also been dismissed.
9. The learned senior Advocate for the appellants
while assailing the order passed by the High Court would
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contend that the implementation of the MGNREG Scheme
required skill in computer application as the entire
process was computerised and the various functions
relating to the same could only be implemented by a
person having efficiency in handling the computers. In
that view it was contended, when the Gram Rojgar
Sahayak was to undertake such work, the computer
efficiency was an aspect to be tested, which was a part of
the selection process and, therefore, in that circumstance
when the office of the Collector had chosen to include the
computer efficiency test as a criteria, the High Court
ought not to have accepted the contention put forth by
the writ petitioners. It is contented that the Revised Time
Schedule was issued on 17.06.2014 and the process was
commenced on 20.06.2014, therefore, the change had
not been introduced after the commencement of the
process. It is, in that view, contended that the writ
petitioners being aware of the schedule, had appeared in
the computer efficiency test and having failed to qualify
cannot thereafter turn around to challenge the same. It is
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contended that the law is well settled in that regard,
which has been ignored by the High Court. Therefore, the
order passed is to be treated as per incuriam.
10. The learned senior Advocate for the private
respondent would seek to justify the order passed by the
High Court. It is contended that the Collector, Rewa
District had exceeded his powers and had introduced a
criteria which was not contemplated in the fresh
guidelines dated 02.06.2012. It is pointed out that the
guidelines dated 02.06.2012 provided that the Desired
qualification relating to computer course should be from
the institutions specified and had also provided for
assigning marks under that criteria which alone is the
prescribed norm for selection under the guidelines and
did not provide for efficiency test. The selection process
had commenced pursuant to the said guidelines and the
Revised time Schedule, whereunder the computer
efficiency test was introduced is in alteration of the
process which had already commenced. Hence the High
Court was justified in its conclusion is the contention. It
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is further contended that the writ petitioners were not
estopped from challenging the action inasmuch as the
Revised Time Schedule had only indicated that the
computer efficiency test was for the selected candidates
and those at the top of the merit list. It was submitted
that the revised time schedule did not specify the
qualification in computer efficiency test to be a pre
condition to secure inclusion in the select list. The writ
petitioners were already in the select list. The exclusion
from the merit list is also not indicated therein and,
therefore, the writ petitioners in that light had not
acceded to any criteria while appearing for the computer
efficiency test as the same was shown only as a process
subsequent to the selection list. In any event the High
Court has taken note of the said aspect, addressed the
contentions and thereafter arrived at its conclusion and,
therefore, the order cannot be termed as per incuriam as
contended.
11. In the light of the contention, a perusal of the order
passed by the learned single judge as also the order
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passed in the writ appeal and the review petition in the
relied upon cases relating to Amit Kumar Mishra and
Others would indicate that a detailed discussion has
been made by the High Court and we see no reason to
differ from the same. In this regard we have noticed the
fresh guidelines dated 02.06.2012. Though the said
guidelines refer to the requirement of computer
knowledge as a Desired qualification, the same also
provides for such qualification in computer exam from
the institutions depicted therein and the selection
process provides for the assignment of marks which has
been extracted and taken note by the Learned Single
Judge. The said guidelines are applicable to all the
Districts in the entire state of Madhya Pradesh as
confirmed by the learned Advocate for the State of
Madhya Pradesh. The Revised Time Schedule dated
17.06.2014 issued by the Collector, Rewa, Madhya
Pradesh is only in respect of one District namely District
Rewa.
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12. Therefore, at the outset when the scheme
applicable to the entire State is made under a common
guideline, the alteration of the requirement by prescribing
an additional criteria only in respect of one District
without such authority do so will not be sustainable.
Furthermore, the application for the post of Gram Rojgar
Sahayak was to be made in terms of the revised
guidelines dated 02.06.2012. By the Revised Time
Schedule dated 17.06.2014 what is provided for
essentially is the time frame for carrying out each of the
requirement relating to the initiation of the recruitment
till the selected candidate joins the post. It is under the
said time schedule, a date has been fixed for holding the
computer efficiency test. Therefore, it would indicate that
the additional criteria has been introduced after the
selection process has commenced and when such
requirement was not indicated in the fresh guidelines
dated 02.06.2012 issued in respect of the entire State.
Therefore, the conclusion reached by the High Court that
the requirement has been altered after the
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commencement of the selection process is justified and
unassailable.
13. The learned senior Advocate for the appellants
while contending that the writ petitioners having
participated in the computer efficiency test are estopped
from raising any grievance subsequently has placed
strong reliance on the decision of the Supreme Court in
the case of Ashok Kumar and Another vs. State of
Bihar and Others (2017) 4 SCC 357 wherein it is held
as hereunder:
13. The law on the subject has been crystallised
in several decisions of this Court. In Chandra
Prakash Tiwari v. Shakuntala Shukla, this Court
laid down the principle that when a candidate
appears at an examination without objection and
is subsequently found to be not successful, a
challenge to the process is precluded. The
question of entertaining a petition challenging an
examination would not arise where a candidate
has appeared and participated. He or she cannot
subsequently turn around and contend that the
process was unfair or that there was a lacuna
therein, merely because the result is not
palatable. In Union of India v. S. Vinodh Kumar,
this court held that:
“18. It is also well settled that those
candidates who had taken part in the
selection process knowing fully well the
procedure laid down therein were not
entitled to question the same. (See
Munindra Kumar v. Rajiv Govil and
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Rashmi Mishra v. M.P. Public Service
Commision.)”
In that light it is further contended that the Supreme
Court in the case of Subhash Chandra and Another vs.
Delhi Subordinate Services Selection Board and
Others (2009) 15 SCC 458 has held that a decision
rendered in ignorance of a binding precedent will have to
be held as a decision rendered per incuriam.
14. Having taken note of the decisions cited, we have
no doubt in our mind that the well accepted position in
law is that the person who has acceded to a position and
participated in the process cannot be permitted to
approbate and reprobate. It is a norm that if a
person/candidate having taken note of a requirement in
the notification and even if it is objectionable does not
challenge the same but despite having knowledge of the
same participates in the said process and takes a chance,
on failing in the process such person/candidate cannot
turn around and assail the same. Though that is the
position in law, the said position of law will not be
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applicable to the present case as the facts in the case on
hand is not the same. In the cited case of Ashok Kumar,
it was a situation where the subsequent notification for
written examination was issued after nullifying the result
of the earlier written examination. The petitioner therein
who had appeared for the examination earlier, having
knowingly participated in the process by once again
appearing for the examination which was notified had
thereafter challenged, which was a clear case of
approbate and reprobate. On the other hand in the
instant case, firstly, the Revised Time Schedule issued by
the Collector, Rewa cannot be termed as the recruitment
notification indicating all the criteria for selection; but
can only be termed as a time schedule prescribed
pursuant to the recruitment process as provided under
the fresh guidelines dated 02.06.2012. Therefore, a
candidate already in selection list who has appeared in
the computer efficiency test on the date depicted in the
revised time schedule cannot be considered to have
appeared after having knowledge that the same will also
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be a part of the assessment for selection and cannot be
put on the same pedestal. This is more so in a
circumstance wherein the schedule for “18th December”
as prescribed reads….. “holding of computer efficiency
test of selected candidates and those at the top of merit
list”. A perusal of the same would indicate that the entire
selection would be based on the criteria prescribed and
the marks as assigned under the fresh guidelines dated
02.06.2012 and appearance for the computer efficiency
test would be treated as a requirement which would
enable the authorities to assess a person who has
otherwise qualified and has been found fit to be in the
selected list or is at the top of the merit list.
15. Therefore, in that circumstance the mere
indication of the date for computer efficiency test in the
time schedule and the participation therein cannot be
considered as if the candidate has acceded to the same so
as to estop such candidate from challenging the action of
the respondent if the name of such candidate is removed
from the select list thereafter treating the same as the
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basis. Hence in the instant case it cannot be considered
as a typical case of approbate and reprobate. In that view
since the high court has addressed this issue taking note
of the decision which was cited before it and has
thereafter arrived at its conclusion, the decision relied on
by the learned senior counsel for the appellants, in the
case of Ashok Kumar and Another vs. State of Bihar
and Others will not be of any assistance. Hence it cannot
be held that the decision of the High Court is per
incuriam as contended.
16. Further what cannot escape the attention is also
that certain other persons who were similarly placed as
that of the petitioners have already approached this court
in SLP Nos.32393242/2017 wherein the relied upon
decision in the review petition was assailed but this court
has dismissed the special leave petitions. Therefore,
taking into consideration all the aspects of the matter we
see no reason to interfere with the orders impugned
herein.
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17. During the course of the argument, the learned
senior Advocate for the appellants also referred to certain
observations contained in the order dated 17.10.2016
passed by the Division Bench in the review petition where
certain protection is provided to the meritorious
candidates who have been selected under the policy
dated 02.06.2012. In that regard we do not find it
appropriate to advert and make any comment since we
have already arrived at conclusion that the orders
impugned do not call for interference.
18. The appeals are accordingly dismissed without any
order as to costs. Pending applications if any, shall also
stand disposed of.
………….…………….J.
(R. BANUMATHI)
.……………………….J.
(A.S. BOPANNA)
New Delhi,
February 07, 2020
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