Non-consideration for subsequent preference post after being declared ineligible for first post preference: Is it unjust? Supreme Court answers

Supreme Court: While addressing the issue as to whether a candidate is entitled to claim appointment on a subsequent post in his preference list after having being considered for his first preference and being declared not suitable for the said post due to non-fulfilment of physical requirements, the Division Bench of Dr Dhananjaya Y Chandrachud and A.S. Bopanna*, JJ., replied in negative. The Bench stated,

“Though, the appointment is a subsequent act which would take place on verifying the details and the candidate being found to be eligible, the right of a candidate for selection will stand exhausted once he is in the main list as per the Rule.”

The appellant, Madhya Pradesh Public Service Commission (MPSC) assailed the impugned order of the High Court directing MPSC to consider the case of the respondent for appointment on the post of the Chief Municipal Officer (CMO) Grade Kh, Assistant Director or any other post mentioned by the respondent in his preference letter. The intra Court appeal filed against the said order had been dismissed.

The respondent, who had applied under the Scheduled Caste category, was a successful candidate for the State Service Examination 2016 having secured 892 marks out of 1575 marks. The preference order submitted by the respondent 1 was as follows; Deputy District Collector, Deputy Superintendent of Police (DSP) and CMO. However, the marks obtained by the respondent were not sufficient for the post as per his first preference; therefore his name was included in the main list for the post of Deputy Superintendent of Police by the appellant-MPSC.

The second preference shown was for the post of DSP, which could have been opted by a candidate if the candidate satisfied the minimum required physical measurement. In compliance with the remaining formalities for appointment the respondent appeared before the Medical Board where it was found that his height was only 162 cm as against the prescribed minimum height of 168 cm. Therefore, the authority held that the respondent was not eligible for the post of DSP.

The contention of the respondent was that a schedule caste candidate who had secured 892 marks was appointed to the post of CMO, therefore, the respondent having shown his subsequent preference for CMO he was entitled to be appointed for the post of CMO.

MP State Civil Services Rules, 2015, more particularly Rule 4(3)(c)(1) and (2) of the Rules provide as hereunder:

“If a candidate is selected in the main list on the basis of the higher priority of post given by him in the preference sheet, he/she will not be considered for the remaining post(s) of preference sheet.”

The Bench observed, though several posts were advertised, the advertisement had indicated the requirement of the Rule that a candidate who had preferred the higher of the posts which had been advertised, would be selected against such post depending on the merit in the examination. Further, Clause (2) of Sub Rule (3) clarifies that if a candidate is selected in the main list on the basis of the higher priority of the post given by him in the preference sheet, he will not be considered for the remaining post indicated in the preference sheet.

Noticeably, apart from indicating that his second preference is to the post of DSP, the respondent had further signed in acknowledgment of the declaration made in the application to the effect that “the choice for the posts which have been given by him, he has fulfilled all the prescribed eligibility i.e. age limit, educational qualifications, experience, physical measurement etc. for those posts. It is also indicated that if he was found ineligible at any stage of selection, his candidature can be cancelled.”

Observing that the declaration was explicit that the choice of preference to the post had been made by the respondent since according to him he had fulfilled the prescribed eligibility criteria, including physical measurement, the Bench expressed,

“…the positive declaration made by the respondent is that he satisfies the minimum eligibility of 168 cm height required for the post he has preferred which is the higher post than the next preference. In such event, the authority concerned on perusal of the application would presuppose that such physical eligibility criteria is possessed by the candidate concerned and he therefore has made his choice for the post.”

The Bench emphasised that Rule 4(3)(c)(1) and (2) employs the phrase “selected in the main list” and “not appointed to the post”. Therefore, “if the respondent who had made declaration about the correctness of his eligibility and secured the selection to be placed in the main list for the said post, he had to blame himself if found ineligible since his height was admittedly 162 cm which was in fact within his knowledge.”

In the backdrop of above, the Bench concluded that the respondent ought not to have exercised the preference but having acted so at that stage, if his request for appointment to the next preferred post is accepted, it will result in displacing a candidate who having made a truthful declaration had indicated the appropriate preference, who got selected and placed in the main list.

Therefore, holding that any interference in the selection process, apart from the fact that it could interfere with the administrative process would also cause hardship to the candidates who had already been appointed and were not before the Court, the Bench stated that the respondent 1 could not be permitted to turn around to seek alteration of the position to the detriment of others. Accordingly, the appeal was allowed and the impugned judgment was set aside.

[Madhya Pradesh Public Service Commission v. Manish Bakawale, C.A. No. 7721 of 2021, decided on 17-12-2021]


*Judgment by: Justice A.S. Bopanna


Kamini Sharma, Editorial Assistant has put this report together 


 

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.