NITESH KUMAR PANDEY versus THE STATE OF MADHYA PRADESH AND ORS. on 7 February 2020

SUPREME COURT REPORTS

[2020] 2 S.C.R.

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NITESH KUMAR PANDEY

v.

THE STATE OF MADHYA PRADESH AND ORS.

(Civil Appeal No. 1215 of 2020)

BFEBRUARY 07, 2020

[R. BANUMATHI AND A. S. BOPANNA, JJ.]

Panchayat:

Selection – To the post of ‘Gram Rojgar Sahayak’ – To beCconducted under the guidelines dated 2.6.2012 – The Collector ofDistrict Rewa, Madhya Pradesh, by the revised time schedule dated17.6.2014 provided for computer efficiency test – Some candidates’names were removed from the ‘Select List’ based on the result ofcomputer efficiency test – The candidates filed writ petitionDcontending that computer efficiency test was not contemplated as acriteria for selection – Single Judge of High Court allowed thepetition – Order was further affirmed in writ appeal as well as inreview petition – Appeal to Supreme Court – Held: The guidelinesdated 2.6.2012 was applicable to the entire State of Madhya Pradesh– Alteration of the guideline by prescribing an additional criteriaEonly in respect of one District i.e. Rewa was without authority – Theadditional criteria, having been introduced after commencement ofselection process, was not justified.

Dismissing the appeals, the Court

FHELD: 1.1 Though the guidelines dated 2.6.2012 refer tothe requirement of computer knowledge as a desired qualification,the same also provides for such qualification in computer examfrom the institutions depicted therein and the selection processprovides for the assignment of marks. The said guidelines areapplicable to all the Districts in the entire State of MadhyaGPradesh. The Revised Time Schedule dated 17.6.2014 issued bythe Collector, Rewa, Madhya Pradesh is only in respect of oneDistrict namely District Rewa. [Para 11][653-F-H; 654-A]

1.2 Therefore, at the outset when the scheme applicable tothe entire State is made under a common guideline, the alterationof the requirement by prescribing an additional criteria only inrespect of one District without such authority do so will not besustainable. Furthermore, the application for the post of GramRojgar Sahayak was to be made in terms of the revised guidelinesdated 2.6.2012. By the Revised Time Schedule dated 17.6.2014what is provided for essentially is the time frame for carrying outeach of the requirement relating to the initiation of the recruitmenttill the selected candidate joins the post. It is under the said timeschedule, as date has been fixed for holding the computerefficiency test. Therefore, it would indicate that the additionalcriteria has been introduced after the selection process hascommenced and when such requirement was not indicated in thefresh guidelines dated 2.6.2012 issued in respect of the entireState. Therefore, the conclusion reached by the High Court thatthe requirement has been altered after the commencement ofthe selection process is justified and unassailable. [Para 12][654-A-E]

2.1 The well accepted position in law is that the personwho has acceded to a position and participate in the process cannotbe permitted to approbate and reprobate. It is a norm that if aperson/candidate having taken note of a requirement in thenotification and even if it is objectionable does not challenge thesame but despite having knowledge of the same participates inthe said process and takes a chance, on failing the process, suchperson/candidate cannot turn around and assail the same. Thoughthat is the position in law, the said position of law will not beapplicable to the present case. [Para 14][655-C-E]

2.2 In the instant case, firstly, the Revised Time Scheduleissued by the Collector, Rewa cannot be termed as the recruitmentnotification indicating all the criteria for selection; but can onlybe termed as a time schedule prescribed pursuant to therecruitment process as provided under the fresh guidelines dated2.6.2012. Therefore, a candidate already in selection list who hasappeared in the computer efficiency test on the date depicted in AB

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Athe revised time schedule cannot be considered to have appearedafter having knowledge that the same will also be a part of theassessment for selection and cannot be put on the same pedestal.This is more so in a circumstance wherein the schedule for “18[th]December” as prescribed reads..........”holding of computerBefficiency test of selected candidates and those at the top of meritlist”. A perusal of the same would indicate that the entire selectionwould be based on the criteria prescribed and the marks asassigned under the fresh guidelines dated 2.6.2012 andappearance for the computer efficiency test would be treated asa requirement which would enable the authorities to assess aCperson who has otherwise qualified and has been found fit to bein the selected list or is at the top of the merit list. [Para 14][655-F-H; 656-A-B]

2.3. Therefore, mere indication of the date for computerefficiency test in the time schedule and the participation thereinDcannot be considered as if the candidate has acceded to the sameso as to estop such candidate from challenging the action of therespondent if the name of such candidate is removed from theselect list thereafter treating the same as the basis. Hence in theinstant case it cannot be considered as a typical case of approbateEand reprobate. [Para 15][656-B-C]

Ashok Kumar and Another v. State of Bihar and Others(2017) 4 SCC 357 : [2016] 8 SCR 815; SubhashChandra and Another v. Delhi Subordinate ServicesSelection Board and Others (2009) 15 SCC 458 : [2009]F12 SCR 978 – distinguished.

3. A perusal of the order passed by the single judge of theHigh Court as also the order passed in the writ appeal and thereview petition in the relied upon cases would indicate that adetailed discussion has been made by the High Court and thereGis no reason to differ from the same. [Para 11][653-F]

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1215of 2020.

From the Judgment and Order dated 06.08.2018 of the High Courtof Madhya Pradesh, Main Seat Jabalpur Case No. WA-533/2018.

With

Civil Appeal Nos. 1216, 1217-1218 of 2020.

Anoop George Chaudhari, Santosh Paul, Sr. Advs. Ms. JuneChaudhari, V. Elanchezhiyan, Ms. Sumeeta Chaudhari, Vivek Yadav,A. Radhakrishnan Sriharsh N. Bundela, Subhranshu Dash, AkshayKumar, Abhay Kumar, Rahul Kaushik, Ms. Bhuvneshwari Pathak,Ms. Shilpi Satyapriya Satyam, Rahul Khatri, Advs. for the appearingparties.

The Judgment of the Court was delivered by

A. S. BOPANNA, J.

1. Leave granted.

2. The appellant in the appeal arising out of SLP No.27200 of2018 was the appellant in WA No. 509/2018 before the High Court ofMadhya Pradesh. In the said writ appeal, the appellant was assailing theorder passed by Learned Single Judge dated 02.04.2018 in W.P.No.1494/2017 and W.P.No. 21425/2016. The appellant in the appeal arisingout of SLP No. 28123 of 2018 was the appellant in WA No. 533/2018 inthe High Court of Madhya Pradesh. The said appeal was filed assailingthe order of Learned Single Judge dated 29.07.2016 in W.P.No.12689 of2016. 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 MadhyaPradesh. The said appeal was disposed of by order dated 28.08.2018 interms of the order dated 06.08.2008 in R.P.No. 682/2018. Though twoseparate orders dated 06.08.2018 passed in WA Nos. 509 and 533/2018and order dated 28.08.2018 in W.A.No.207/2017 are assailed in theseappeals, since the issue is common and all the writ appeals have beendisposed of by the High Court relying upon its earlier orders, these appealswere taken up together, heard and are being disposed of by this commonjudgment.

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A3. The issue relates to the selection to the post of Gram RojgarSahayak in the Panchayat of the Rewa District in Madhya Pradesh.Though the issue presently pertains to the method adopted in the selectionprocess in Rewa District, the scheme applicable to the entire state ofMadhya Pradesh for such recruitment of Gram Rojgar Sahayak forBimplementation of the Mahatma Gandhi National Rural EmploymentGuarantee Scheme (‘MGNREGS’ for short) is to be taken note and thematter is to be decided in that background. As noted, the issue presentlybeing limited to the selection process in Rewa District assailing the methodthat was followed therein, it is seen that a batch of writ petitions relatingto the same process were earlier considered by a Learned Single JudgeCthrough the order dated 15.07.2016 and had allowed the writ petitionsbearing W.P.No.17183/2014 and the analogous matters. Challenge tothe said order had concluded through the order passed by the DivisionBench in W.A.No.479/2016 and the second Review Petition inR.P.No.682/2018. In that circumstance, since in the present case theDcontentions put forth by the appellants herein before the Division Benchof the High Court was similar to the said cases, the Division Bench ofthe 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 beaggrieved are, therefore, before this court in these appeals.

E4. At the outset, it is to be noted that though the orders dated06.08.2018 and 28.08.2018 passed in the Writ Appeals relating to theappellants herein are assailed, the relied upon order which contains thereasoning adopted by the High Court is not assailed in these appeals.That apart the SLP against the earlier order is already dismissed. Bethat as it may, since the issue urged herein is to assail the relief grantedFto the writ petitioners by the High Court, the consideration of thecorrectness 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 respondentGand Mr. Rahul Kaushik, learned Advocate for the State of MadhyaPradesh. In that light we have also perused the appeal papers.

6. The brief facts are that the official respondents invitedapplications for appointment to the post of Gram Rojgar Sahayak. Thesaid appointment was to be made in terms of the fresh guidelines datedH

02.06.2012 issued by the Madhya Pradesh State Employment GuaranteeParishad which is a registered institution constituted under the Panchayatand Rural Development Department. As per the same, one Gram RojgarSahayak per panchayat was to be appointed under the MGNREGscheme. The said guidelines provided for the qualifications which wereclassified as (a) Compulsory qualifications and (b) Desired qualifications.The compulsory qualifications specified was with regard to the basiceducation qualifications and under the Desired qualifications it referredto computer exam pass from any one institution mentioned in the memoof General Administration Department. Clause (8) of the said guidelinesalso provided with regard to the Selection process whereunder sub-Clause(8) therein further provided for the assignment of maximum marks undereach of the criteria stated therein. In so far as the computer examination,the pass certificate from the different Universities are named thereinand the maximum marks of ‘50’ is provided thereunder.

7. Though the selection process was to be conducted based onthe criteria and the method of assessment provided under the guidelinesdated 02.06.2012, the office of Collector, Rewa, Madhya Pradesh issueda Revised Time Schedule for recruitment of Gram Rojgar Sahayak, dated17.06.2014 and the date for initiation of recruitment was indicated as …‘before 20[th] June, 2014’. Similarly, the schedule for the different stagesin the selection process was indicated. At serial No.9 of the RevisedTime Schedule, the outer date was indicated for holding of computerefficiency test of selected candidates and those at the top of the meritlist, which was to be held before 18[th] September. Pursuant to the same,the process was conducted but the writ petitioners were removed fromthe select list based on the result of the computer efficiency test. Sincethe computer efficiency test was not contemplated as a criteria forselection under the fresh guidelines dated 02.06.2012, the writ petitionersassailed the same before the Learned Single Judge, in the said batch ofwrit petitions.

8. The Learned Single Judge after taking note of the above factsarrived at the conclusion that the reading of the scheme shows that theselection procedure and methodology of giving marks do not include thecomputer efficiency test and the marks arising out of such test. The writpetitioners were meritorious and their names were in the merit list, butfor the marks of the computer efficiency test being included. In view ofthat position, the writ petitioners were taken out of the select list which A

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Awas held, not justified. In that regard, the Learned Single Judge hadtaken note that the method was altered after the selection process hadcommenced which is not permissible. It was held that the introduction ofthe computer efficiency test mid-way was contrary to the settled legalposition and as such disapproved the action of the respondents inBprescribing the computer efficiency test, dehors the common guidelines.Accordingly, the writ petitions were allowed. The candidates who hadbenefitted in the selection process due to the holding of computerefficiency test preferred the writ appeals claiming to be aggrieved. TheDivision Bench of the High Court having taken note of the factual aspects

had agreed with the reasons assigned by the Learned Single Judge andCdismissed the writ appeals. The review petitions in R.P.No.611/16, 612/16 and connected matters were also rejected through order dated17.10.2016, save certain observations made relating to the protection ofmeritorious candidates who had also appeared for the computer efficiencytest. The Special Leave Petitions filed before this Court by some of theDappellants had also been dismissed.

9. The learned senior Advocate for the appellants while assailingthe order passed by the High Court would contend that the implementationof the MGNREG Scheme required skill in computer application as theentire process was computerised and the various functions relating toEthe same could only be implemented by a person having efficiency inhandling the computers. In that view it was contended, when the GramRojgar Sahayak was to undertake such work, the computer efficiencywas an aspect to be tested, which was a part of the selection processand, therefore, in that circumstance when the office of the Collector hadchosen to include the computer efficiency test as a criteria, the HighFCourt ought not to have accepted the contention put forth by the writpetitioners. It is contented that the Revised Time Schedule was issuedon 17.06.2014 and the process was commenced on 20.06.2014, therefore,the change had not been introduced after the commencement of theprocess. It is, in that view, contended that the writ petitioners being awareGof the schedule, had appeared in the computer efficiency test and havingfailed to qualify cannot thereafter turn around to challenge the same. Itis contended that the law is well settled in that regard, which has beenignored by the High Court. Therefore, the order passed is to be treatedas per incuriam.

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10. The learned senior Advocate for the private respondent wouldseek to justify the order passed by the High Court. It is contended thatthe Collector, Rewa District had exceeded his powers and had introduceda criteria which was not contemplated in the fresh guidelines dated02.06.2012. It is pointed out that the guidelines dated 02.06.2012 providedthat the Desired qualification relating to computer course should be fromthe institutions specified and had also provided for assigning marks underthat criteria which alone is the prescribed norm for selection under theguidelines and did not provide for efficiency test. The selection processhad commenced pursuant to the said guidelines and the Revised timeSchedule, whereunder the computer efficiency test was introduced is inalteration of the process which had already commenced. Hence theHigh Court was justified in its conclusion is the contention. It is furthercontended that the writ petitioners were not estopped from challengingthe action inasmuch as the Revised Time Schedule had only indicatedthat the computer efficiency test was for the selected candidates andthose at the top of the merit list. It was submitted that the revised timeschedule did not specify the qualification in computer efficiency test tobe a pre-condition to secure inclusion in the select list. The writ petitionerswere already in the select list. The exclusion from the merit list is alsonot indicated therein and, therefore, the writ petitioners in that light hadnot acceded to any criteria while appearing for the computer efficiencytest as the same was shown only as a process subsequent to the selectionlist. 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 bythe learned single judge as also the order passed in the writ appeal andthe review petition in the relied upon cases relating to Amit Kumar Mishraand Others would indicate that a detailed discussion has been made bythe High Court and we see no reason to differ from the same. In thisregard we have noticed the fresh guidelines dated 02.06.2012. Thoughthe said guidelines refer to the requirement of computer knowledge as aDesired qualification, the same also provides for such qualification incomputer exam from the institutions depicted therein and the selectionprocess provides for the assignment of marks which has been extractedand taken note by the Learned Single Judge. The said guidelines areapplicable to all the Districts in the entire state of Madhya Pradesh as A

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Aconfirmed 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 DistrictRewa.

12. Therefore, at the outset when the scheme applicable to theBentire State is made under a common guideline, the alteration of therequirement by prescribing an additional criteria only in respect of oneDistrict without such authority do so will not be sustainable. Furthermore,the application for the post of Gram Rojgar Sahayak was to be made interms of the revised guidelines dated 02.06.2012. By the Revised TimeCSchedule dated 17.06.2014 what is provided for essentially is the timeframe for carrying out each of the requirement relating to the initiationof the recruitment till the selected candidate joins the post. It is under thesaid time schedule, a date has been fixed for holding the computerefficiency test. Therefore, it would indicate that the additional criteriahas been introduced after the selection process has commenced andDwhen such requirement was not indicated in the fresh guidelines dated02.06.2012 issued in respect of the entire State. Therefore, the conclusionreached by the High Court that the requirement has been altered afterthe commencement of the selection process is justified and unassailable.

13. The learned senior Advocate for the appellants whileEcontending that the writ petitioners having participated in the computerefficiency test are estopped from raising any grievance subsequentlyhas placed strong reliance on the decision of the Supreme Court in thecase of Ashok Kumar and Another vs. State of Bihar and Others(2017) 4 SCC 357 wherein it is held as hereunder:-F13. The law on the subject has been crystallised in several decisionsof this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla,this Court laid down the principle that when a candidate appearsat an examination without objection and is subsequently found tobe not successful, a challenge to the process is precluded. TheGquestion of entertaining a petition challenging an examination wouldnot arise where a candidate has appeared and participated. He orshe cannot subsequently turn around and contend that the processwas unfair or that there was a lacuna therein, merely because theresult is not palatable. In Union of India v. S. Vinodh Kumar, thiscourt held that:H

“18. It is also well settled that those candidates who hadtaken part in the selection process knowing fully well theprocedure laid down therein were not entitled to question thesame. (See Munindra Kumar v. Rajiv Govil and Rashmi Mishrav. M.P. Public Service Commision.)”

In that light it is further contended that the Supreme Court in thecase of Subhash Chandra and Another vs. Delhi SubordinateServices Selection Board and Others (2009) 15 SCC 458 has heldthat a decision rendered in ignorance of a binding precedent will have tobe held as a decision rendered per incuriam.

14. Having taken note of the decisions cited, we have no doubt inour mind that the well accepted position in law is that the person whohas acceded to a position and participated in the process cannot bepermitted to approbate and reprobate. It is a norm that if a person/candidate having taken note of a requirement in the notification andeven if it is objectionable does not challenge the same but despite havingknowledge of the same participates in the said process and takes achance, on failing in the process such person/candidate cannot turn aroundand assail the same. Though that is the position in law, the said positionof law will not be applicable to the present case as the facts in the caseon hand is not the same. In the cited case of Ashok Kumar, it was asituation where the subsequent notification for written examination wasissued after nullifying the result of the earlier written examination. Thepetitioner therein who had appeared for the examination earlier, havingknowingly participated in the process by once again appearing for theexamination which was notified had thereafter challenged, which was aclear case of approbate and reprobate. On the other hand in the instantcase, firstly, the Revised Time Schedule issued by the Collector, Rewacannot be termed as the recruitment notification indicating all the criteriafor selection; but can only be termed as a time schedule prescribedpursuant to the recruitment process as provided under the fresh guidelinesdated 02.06.2012. Therefore, a candidate already in selection list whohas appeared in the computer efficiency test on the date depicted in therevised time schedule cannot be considered to have appeared after havingknowledge that the same will also be a part of the assessment for selectionand cannot be put on the same pedestal. This is more so in a circumstancewherein the schedule for “18[th] December” as prescribed reads…..

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A“holding of computer efficiency test of selected candidates and those atthe top of merit list”. A perusal of the same would indicate that the entireselection would be based on the criteria prescribed and the marks asassigned under the fresh guidelines dated 02.06.2012 and appearancefor the computer efficiency test would be treated as a requirement whichBwould enable the authorities to assess a person who has otherwisequalified and has been found fit to be in the selected list or is at the top ofthe merit list.

15. Therefore, in that circumstance the mere indication of thedate for computer efficiency test in the time schedule and the participationtherein cannot be considered as if the candidate has acceded to theCsame so as to estop such candidate from challenging the action of therespondent if the name of such candidate is removed from the select listthereafter treating the same as the basis. Hence in the instant case itcannot be considered as a typical case of approbate and reprobate. Inthat view since the high court has addressed this issue taking note of theDdecision which was cited before it and has thereafter arrived at itsconclusion, the decision relied on by the learned senior counsel for theappellants, in the case of Ashok Kumar and Another vs. State of Biharand Otherswill not be of any assistance. Hence it cannot be held thatthe decision of the High Court is per incuriam as contended.

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16. Further what cannot escape the attention is also that certainother persons who were similarly placed as that of the petitioners havealready approached this court in SLP Nos.3239-3242/2017 wherein therelied upon decision in the review petition was assailed but this court hasdismissed the special leave petitions. Therefore, taking into considerationFall the aspects of the matter we see no reason to interfere with theorders impugned herein.

17. During the course of the argument, the learned senior Advocatefor the appellants also referred to certain observations contained in theorder dated 17.10.2016 passed by the Division Bench in the reviewGpetition where certain protection is provided to the meritorious candidateswho have been selected under the policy dated 02.06.2012. In that regardwe do not find it appropriate to advert and make any comment since wehave already arrived at conclusion that the orders impugned do not callfor interference.

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18. The appeals are accordingly dismissed without any order asto costs. Pending applications if any, shall also stand disposed of.

Kalpana K. Tripathy

Appeals dismissed.

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