Nitesh Kumar Pandey vs The State Of Madhya Pradesh on 7 February, 2020


Supreme Court of India

Nitesh Kumar Pandey vs The State Of Madhya Pradesh on 7 February, 2020

Author: 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

Page 6 of 19
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

Page 8 of 19
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

Page 9 of 19
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

Page 11 of 19
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.

Page 12 of 19

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

Page 13 of 19
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

Page 14 of 19
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

Page 15 of 19
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

Page 16 of 19
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

Page 17 of 19
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.

Page 18 of 19

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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