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The person who has acceded to a position and participated in the process cannot be permitted to appr

Nithesh Kumar Pandey vs. The State of Madhya Pradesh and Ors., Civil Appeal No. 1215 of 2020, arising out of SLP No. 28123 of 2018- February 07, 2020.

The Supreme Court Bench comprising of Justice R. Banumathi and Justice A.S. Bopanna pronounced the judgment.

Facts:

The respondents invited applications for the post of Gram Rojgar Sahayak in terms of fresh guidelines in 2012 issued by the Madhya Pradesh State employment Guarantee Parishad. Under the scheme one Gram Rojgar Sahayak per panchayat was to be appointed under the MGNREG scheme. The said guidelines divided the qualifications into 2 – compulsory (basic educational qualifications) and desired (computer exam pass from any one institution mentioned in the memo of General Administration Department). Clause 8 of the said guidelines referred to the selection process. The Collector issued a Revised Time Schedule for recruitment. The test for computer efficiency was to be conducted within 18th September. Based on the process conducted, the petitioners were removed from the list based on the results of computer efficiency test. Since the computer efficiency test is not the selection criteria for selection under the fresh guidelines this writ petitions have been filed.

The Learned Single Judge concluded 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 they cannot be removed from the list on the basis of the computer test marks, as the method was altered after the selection process had commenced. The Court held that the computer test which was introduced mid-way is contrary to the settled legal position and thus the writ petitions were allowed.

The Division Bench agreed with the reasons assigned by the Learned Single Judge and dismissed the writ appeals. The review petitions and connected matters were also rejected.

The Counsel for the appellants stated that the implementation of the MGNREG Scheme required computer skill as the entire process was computerized and the various functions relating also requires computer handling skills. The High Court should not have allowed the writ petitions as the e Collector has introduced the requirement criteria in the selection process of Gram Rojgar Sahayak post will require computer skills. It is also contended that the Revised Time Schedule was also implemented before the commencement of the selection process. Therefore, the writ petitioners being aware of the computer test have failed to qualify and so this cannot be challenged.

The counsel for the Private respondent contended that the Collector exceeded his powers and had introduced a criterion which was not contemplated in the fresh guidelines. It is said that the selection process was altered only after the commencement of the selections. Therefore, the order of the High Court is justified.

The Court indicated that there is no reason to differ from the order of the High Court. 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 the entire state whereas the guidelines issued by the Collector is in respect of one District Rewa.

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.

In the Revised Time Schedule also, the time frame for conducting the test is provided, therefore it indicates that the additional criteria have been introduced after the selection process has commenced and such guidelines was not indicated in the fresh guidelines in respect of the entire state. Therefore, the conclusion of the High Court is unassailable. The Counsel for appellants relied upon Ashok Kumar and anr vs. the State of Bihar and ors. Which held that, one cannot contend the lacuna in the examination after attending it and merely the result is palatable.

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.

After considering the above case, the petitioner therein who had appeared for the examination earlier, having knowingly participated in the process and then challenged it, which is a clear case of approbate and reprobate.

The Court held that 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 therefore treating the same as the basis. Hence the case cannot be treated as per incuriam as contended. The protection given for the meritorious candidates in the previous order is not interfered.

Therefore, appeals made are dismissed.

–  Vydurya Selvi Baskaran

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