Summary
A candidate holding a Syrang's licence but not a current Lascar's licence was not eligible for direct recruitment as Boat Lascar in the Kerala State Water Transport Department, because Rule 6 of the Special Rules of 1975 and the advertisement made a current Lascar's licence an essential qualification which a letter of the Director of Ports could not dilute; his non-joinder before the Tribunal did not help him since he did not promptly challenge the Tribunal's order, and relief under Article 142 was refused because his entry was through an illegal process.
Issues
- Whether a candidate who held a Syrang's licence but not a current Lascar's licence on the last date for receipt of applications could be considered qualified for direct recruitment to the post of Lascar and appointed.
- Whether a higher qualification (Syrang's licence, treated by the Director of Ports as superior to a Lascar's licence) can be regarded as satisfying or exceeding the essential qualification prescribed by the statutory Special Rules and the advertisement.
- Whether the Tribunal's order recasting the ranked list, passed without impleading the appellant who was a selected and appointed candidate, bound him, and whether he could rely on his non-joinder after choosing to reply to the show cause notice instead of challenging that order.
- Whether the High Court should have entertained the writ petitions when the cancellation of appointment had given the appellant a fresh cause of action to move the Tribunal under Section 19 of the Administrative Tribunals Act, 1985.
- Whether this was a fit case for exercise of power under Article 142 of the Constitution.
Provisions considered
- Rule 6 and the Schedule, Special Rules of 1975 for the Kerala State Water Transport Subordinate Service (Operating Wing)Rule 6 bars appointment to a category unless the person possesses the qualifications prescribed in column (3) of the Table; for Lascar that is literacy in Malayalam, Tamil or Kannada and a current Lascar's licence. Read with the Schedule, only holders of a current (subsisting) Lascar's licence on the last date for applications are eligible, and the absence of an express exclusion of Syrang's licence holders is immaterial. (¶¶ 2, 20, 21, 22, 23, 24)
- Chapter III (certificates of competency), Kerala Inland Vessels Rules, 2010A Lascar's or Syrang's licence is a certificate of competency issued under these Rules; though a Syrang's licence can be obtained only after holding a Lascar's licence for two years, that does not supply the statutory requirement of a current Lascar's licence on the cut-off date. (¶¶ 2, 24)
- Section 19, Administrative Tribunals Act, 1985The unsuccessful candidates moved the Tribunal under Section 19; the cancellation of the appellant's appointment gave him a cause of action to file his own original application, including for recall of the order passed behind his back, which he did not do, instead moving the High Court. (¶¶ 2, 13, 14)
- Article 16, Constitution of IndiaEquality of opportunity in public employment was absent: the Director's letter was not publicised and no corrigendum enlarged the zone of consideration, so others holding Syrang's licences who did not apply were aggrieved (M. Tripura Sundari Devi applied). (¶¶ 9, 26)
- Article 142, Constitution of IndiaExercise of the power would require palpable injustice; an appointment gained through an illegal process is non est and equity has no role (Ashok Kumar Sonkar), so the Court declined to ignore the illegality to rescue the appellant. (¶¶ 37, 38, 39, 40)
- Rules 3(c) and 10(b), Kerala State and Subordinate Service Rules, 1958The KPSC's advice for the appellant's recruitment was expressly subject to these rules. (¶ 2)
Held
- The High Court would have been justified in dismissing the writ petitions at the threshold because the intervening cancellation of appointment gave the appellant a cause of action to move the Tribunal under Section 19 of the 1985 Act, where he could have sought recall of the order passed behind his back (K. Ajit Babu; Rama Rao); but since the High Court decided the merits and the Court was addressed on them, the question was answered without taking too technical a view. (¶¶ 13, 14)
- Selectees who are appointed or promoted are necessary parties in proceedings challenging their selection, and mere awareness of the litigation does not make an order passed without impleading them binding on them (Ranjan Kumar; Kulwant Singh). The appellant was undoubtedly a necessary party, yet having not immediately challenged the Tribunal's order, having taken a chance by replying to the show cause notice and having failed, he could not succeed on the ground of non-joinder alone; he could regain his service only if his primary contention on eligibility succeeded. (¶¶ 15, 16, 17, 18, 19)
- Under Rule 6 of the Special Rules read with the Schedule, possession of a current Lascar's licence is an essential qualification for the post of Lascar, and none else is eligible. The word 'current' requires a subsisting, valid certificate of competency on the last date for receipt of applications. The advertisement required nothing beyond the Special Rules, and its failure to expressly exclude holders of Syrang's or Driver's licences is insignificant and irrelevant. (¶¶ 20, 21, 22)
- Rule 6 and the advertisement together created a distinct class of aspirants holding a current Lascar's licence who alone could apply; a holder of a Syrang's or Driver's licence outside that class could not be considered eligible, and the classification was not shown to be unreasonable. Although a Syrang's licence presupposes an earlier Lascar's licence, what turned the tide against the appellant was the absence of a current Lascar's licence on the cut-off date. (¶¶ 23, 24)
- The Director of Ports' letter to the KPSC treating a Syrang's licence as more than equivalent to a Lascar's licence was issued at the behest of candidates lacking current Lascar's licences; statutorily prescribed qualifications cannot be diluted by what the Director felt the KPSC should consider, and the statutory qualifications prevail. (¶¶ 13, 25)
- Drawing on M. Tripura Sundari Devi, since neither the Director's letter was widely publicised nor any corrigendum enlarged the zone of consideration, all those with similar or better qualifications who did not apply because they were unaware that persons without a current Lascar's licence could compete were aggrieved; equality of opportunity, a sine qua non for a fair selection, was absent. (¶ 26)
- Permitting better-equipped Syrang's licence holders to compete for Lascar posts would deprive those holding only a Lascar's licence of a level playing field and could leave them without public employment, which cannot be the intention of a welfare State; Syrang's licence holders can compete in the 50 per cent direct recruitment quota for Syrang. The differing duties of the two posts and the fact that Lascar is the feeder post for Syrang do not make a Syrang's licence holder qualified for Lascar. An appointment contrary to statutory rules is void (Pramod Kumar), so the KPSC could not have included candidates with other licences in the ranked list. (¶¶ 27, 28, 29, 30, 31)
- Parvaiz Ahmed Parry and Chandra Shekhar Singh, which treated higher degrees as satisfying the prescribed qualification, are distinguishable on facts. Whether exclusion of an over-qualified aspirant is justified depends on the governing rules, the prescribed qualifications, the nature of duties and service and other factors; the principle that over-qualification is not a disqualification cannot be put in a straitjacket, and there is no universal rule that a higher qualified candidate must be preferred over one matching the essential qualification. (¶¶ 32, 33, 34, 35, 36)
- An illegal appointment is non est and a nullity, and equity and sympathy have no role (Ashok Kumar Sonkar). Article 142 would be invoked only on demonstrated palpable injustice; the appellant having gained entry through a process that was not legal and valid, it was not a fit case to ignore the illegality. (¶¶ 38, 39, 40)
Result
Appeals dismissed; High Court's common judgment dated 02.12.2019 upholding the Tribunal's direction to recast the ranked list and the cancellation of the appellant's appointment as Boat Lascar affirmed; no costs; pending applications disposed of.