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PETITIONER: DISTRICT COLLECTOR AND CHAIRMAN VIZIANAGARAM(SOCIAL WELFARE

       Vs.

RESPONDENT: M. TRIPURA SUNDARI DEVI

DATE OF JUDGMENT20/04/1990

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. KULDIP SINGH (J)

CITATION:  1990 SCR  (2) 559        1990 SCC  (3) 655  JT 1990 (2)   169        1990 SCALE  (1)806

ACT:     Constitution  of India 1950: Article  16---Public  serv- ices--Recruitment to--Qualifications mentioned in advertise- ment--Not  relaxable unless clearly specified in the  adver- tisement.     Civil Services: A.P. Government--Appointment of Grade  I and  Grade  H  Teachers--Appointment made  in  disregard  of qualifications mentioned in advertisement--illegal.

HEADNOTE:     Pursuant  to  a  newspaper advertisement  by  the  State Government calling for applications for Grade-I and Grade-II teacher  posts (Post Graduate Teacher and  Trained  Graduate Teachers) the respondent in the appeal applied for the same.     The qualification prescribed in the advertisement was  a second class degree in M.A. However, the respondent who held a third class degree in M.A. was selected, and an order  was issued  appointing her as a Post Graduate Teacher in  Hindi, subject  to  the production of  original  certificates,  and compliance  with the other necessary formalities.  When  the respondent approached the authorities with her certificates, it was noticed that she was not qualified for the post,  and was, therefore, not allowed to join service.     The  respondent  approached  the  State   Administrative Tribunal  for  relief, which held that  the  appellants  had issued the order of appointment knowing fully well that  she was not qualified, and that she was selected for appointment because  there was no other candidate available with  better marks, and passed an Order directing the appellants to allow the respondent to join duty and pay her salary from the date she reported for duty. The appellants appealed to this Court. Allowing the appeal, HELD: 1. When an advertisement mentions a particular  quali- fi- 560 cation and an appointment is made in disregard of the  same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee  or appointees but who had not applied for the post because they did  not possess the qualifications mentioned in the  adver- tisement. [562F]

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   2. It amount to a fraud on the public to appoint persons with inferior qualifications unless it is clearly stated  in the  advertisement  that the qualifications  are  relaxable. [562G]     3. No Court should be a party to the perpetuation of the fraudulent practice. The State Administrative Tribunal  lost sight of this fact in the instant case. [562G]     4.  It  is  common knowledge that  sometimes  either  by mistake  or otherwise the notes put up before the  Selection Committee contain erroneous data prepared by the office  and sometimes the Selection Committee proceeds on the basis that all  those  who appear before it, are  otherwise  qualified. However, the second stage at which the documents are scruti- nised is when the higher authorities go through them at  the time  the candidate concerned approaches them  for  resuming duties  alongwith the original certificates. It is  at  that stage  that the mistake in the instant case was  discovered, and  the respondent was not permitted to resume her  duties. There is nothing wrong in such action. [562B-C]     [The  Court felt it would be unjust to deprive  the  re- spondent of the post at this stage, as she had  subsequently acquired another degree in M.A. with second class and there- by qualified herself to be appointed, that she may be  over- aged  for  the post and many who  were  underqualified  were appointed  to  the post earlier, and directed  that  she  be appointed  in  the post from the beginning of  the  academic year 1990-1991.] [563B-C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2559  of 1988 From the Judgment and Order dated 31.8.1987 of A.P. Adminis- trative Tribunal, Hyderabad in R.P. No. 393 i of 1987. K. Madhva Reddy and G. Prabhakar for the Appellants. Y.P. Rao for the Respondent. 561 The Judgment of the Court was delivered by     SAWANT,  J. The admitted facts in the present  case  are that the respondent applied for Grade-I and Grade-II teacher posts  (Post Graduate Teacher and Trained  Graduate  Teacher posts  respectively) in September, 1985 pursuant to a  news- paper’s advertisement calling for applications for the  said posts.  Admittedly,  the  qualification  prescribed  in  the advertisement  for the said posts was a second class  degree in  M.A.,  and the respondent held a third class  degree  in M.A. However, it appears that on December 27, 1985, an order was issued wrongly by the first appellant appointing her  as a Post Graduate Teacher in Hindi. The order stated that  her appointment  was subject to the production of original  cer- tificates  and  to the compliance with the  other  necessary formalities.  When  pursuant to the  order,  the  respondent approached  the  authorities with the certificates,  it  was noticed that the respondent was not qualified for the  post. She was, therefore, not allowed to join the service, and was sent back.     2.  The  respondent  thereafter  approached  the  Andhra Pradesh Administrative Tribunal at Hyderabad representing to the Tribunal that pursuant to the order of December 27, 1985 she  had joined her duties on January 2, 1986 and  that  she should be allowed to continue in service with all the  bene- fits  from that day. The Tribunal passed the impugned  order directing the appellants to allow her to join the duties and to  pay  to her salary from the date she  reported  for  her

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duties  in compliance with the order of December  27,  1985. The Tribunal also awarded costs against the appellants.     3.  We are of the view that the Tribunal is  clearly  in error.  The reasons given by the Tribunal in support of  its order are, firstly, that the appellants had issued the order of  appointment knowing fully well that she was  not  quali- fied,  and secondly, that she was selected for the  appoint- ment  because  there was no other candidate  available  with better marks.     4.  It has been brought to our notice during the  course of  the  arguments that the original selection was  made  by mistake on the presumption that the respondent had satisfied the  qualification requirements as stated in the  advertise- ment, without scrutinising the certificates copies of  which were  sent  with her application.  The  Selection  Committee presumed  that all those who had applied in response to  the advertisement  must  have had the  requisite  qualifications needed  for  the posts. However, the  order  appointing  the respondent had made 562 it  clear  that the respondent should come  along  with  the original  certificates. When the respondent  approached  the appellants with the originals of the certificates which were scrutinised, it was found that in fact she was short of  the qualifications.  It is in these circumstances, that she  was not  allowed to join the service. It cannot,  therefore,  be said  that the appellants had selected the  respondent  with the knowledge that she was under-qualified. According to us, there  is  a good deal of force in this  contention.  It  is common knowledge that sometimes either by mistake or  other- wise the notes put up before the Selection Committee contain erroneous  data  prepared by the office, and  sometimes  the Selection Committee proceeds on the basis that all those who appear  before  it, are otherwise  qualified.  However,  the second stage at which the documents are scrutinised is  when the  higher  authorities  go through them at  the  time  the candidate  concerned  approaches them  for  resuming  duties along  with the original certificates. It is at  that  stage that the mistake was discovered in the present case and  the respondent  was not permitted to resume her duties.  We  see nothing wrong in this action.     5.  The observation of the Tribunal that there  were  no other  candidates  available with better marks  is,  in  the circumstances,  a  halftruth because assuming that  she  had better  mark among those who had applied, it seems  that  no one  with second class had applied or the applications  only of  the third-class candidates were considered. If so,  they were  the applications of those third-class  candidates  who had applied and not of all those who would have applied  had the  advertisement  given an indication that  those  with  a third-class degree could also apply.     6.  It  must further be realised by all  concerned  that when  an advertisement mentions a  particular  qualification and  an appointment is made in disregard of the same, it  is not  a matter only between the appointing authority and  the appointee  concerned.  The aggrieved are all those  who  had similar or even better qualifications than the appointee  or appointees but who had applied for the post because they did not  possess the qualifications mentioned in the  advertise- ment.  It  amounts to a fraud on public to  appoint  persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable.  No court  should be a party to the perpetuation of the  fraudu- lent practice. We are afraid that the Tribunal lost sight of this fact.

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7. We are, however, informed that the respondent subsequent- ly 563 acquired  another degree in M.A. with second class  and  has qualified herself to be appointed to the said post. Whatever the merits of the decision given by the Tribunal, we  cannot forget that she was entitled to rely upon it till this  time where she had succeeded. She was not allowed to join service on  January  2,  1986  and  thereafter  she  had  approached the,Tribunal  in January 1987. The decision of the  Tribunal was  of 31st August, 1987 and thereafter the  present  Civil Appeal  was  pending in this Court from December  1987  till this  day.  Considering the fact that she  is  compelled  to serve,  that she has acquired the  requisite  qualification, that today she may be overaged for the post and the  further fact that many who were underqualified were appointed to the post earlier, we feel that it will be unjust to deprive  her of  the  post at this stage. We, therefore,  set  aside  the impugned order of the Tribunal but allow the appeal partial- ly and direct that the respondent should be appointed in the post  from the beginning of the ensuing academic year  1990- 91.  Since  Shri  Madhav Reddy contended that  there  is  no vacant  post at present, we further direct that,  if  neces- sary, a post be created to accommodate her. She will, howev- er,  not  be entitled to any benefits including  back  wages till her appointment. The parties will bear their own costs. N.V.K.                                                Appeal allowed. 564