Holding

The fourth short‑listing criterion is unreasonable and arbitrary and cannot deny candidates with higher qualifications, thus the High Court judgment upholding it is set aside.

Summary

The Supreme Court examined an appeal against a High Court order that upheld a short‑listing criterion which excluded candidates possessing educational qualifications higher than Standard VII from being considered for peon posts in the District and Sessions Court, Nagpur. The recruitment rules prescribed a minimum qualification of passing Standard IV, and the fourth criterion was based on the belief that higher‑qualified candidates would not be interested in peon work. The Court held that such a criterion was unreasonable, arbitrary and contrary to the principle that higher qualifications cannot be a disadvantage under Article 16 of the Constitution. It set aside the High Court judgment, finding the exclusion of higher‑qualified candidates impermissible. However, the Court declined to disturb the appointments already made, ordering no fresh selection process. Consequently, the appeal was disposed of.

Issues considered

Whether the fourth short‑listing criterion, which bars candidates with higher educational qualifications than Standard VII from being considered for peon posts, is reasonable and non‑arbitrary under Article 16 of the Constitution.
Whether the criterion violates the recruitment rules that prescribe a minimum qualification of Standard IV for peons.
Whether the criterion amounts to an impermissible form of reservation or classification.
Whether the appointments already made can be set aside after the criterion is struck down.

Legislation cited

Constitution of Indias. Article 16

Subjects

recruitmentshortlistingqualificationpeonservice lawArticle 16arbitrary criteriareservationpublic service

Judgment

MOHD. RIAZUL USMAN GANI AND ORS. A
-~
v.
DISTRICT AND SESSIONS JUDGE, NAGPUR AND ORS.

FEBRUARY 11, 2000

[S. SAGHIR AHMAD AND D.P. WADHWA, JJ.) B

Service Law-Recruitment-Shortlisting of candidate.r--Criteria must be
reasonable and not arbitrary having regard to the post-Denying a candidate
his right to be considered for the post on principle that he is having higher
qualification, than prescribed-Whetl1er can be considered as rational-field, c
no.

For recruitment to 66 posts of peons in the District and Sessions
C11urt, 14,965 upplications woere received. For short listing the applicants,
it wus laid down thut applications of those candidates possessin3 mini-
mum educutional qualification of passing IVth vernacular standard and/or D
educated upto passine ofVllth standard only should b2 considered for the
intervie'\7 to th:! posts of peons and those who had studied above Vllth
vernacular standard were not to be called for the interview as they may
not tahe proper interest in the wor!t of peons. Under the Recruitment Rules
= for the post of a peon educational qualifications prescribed was not lower E
than a pass in examination of Standard IV in the regional language. The
up~~ts hcvb!:-J hip.~~ educatiocal qualifications chalb~d theufterin
o! sbo::U!sti:ir; l!!I e.~.ry. msmissi113 the ¥nit Ftitio::i cif the npp:U:ints,
tl::l Hi:}: CCl:irl l::?!d ttiot the p::rs11::lll hevlcg hiu::er cdc:atio:.:el Cil!..'llfico·
tfo::lS cfo :i11t ta!re {frop2r Interest in the work of peons and they g::nerally
feel shy and b21ol7 dl311ity wbe11 required to do the v1or!t of Sl'T-eepin3 the F
c11urt rooms, chamb:rs of Judges etc. and that pers11n with higher educa·
tionnl qualificatim1s would also feel frustrated in the absence of proper
avcm::es f11r prorn11tion. This 11ppeal had been filed against the decision of
the Higlt Court.
G
Dispesing of the appeal, this Court

HELD : 1.1. Laying of criteria when there are large number of
candidates is permissible but that criteria must be reasonable and not
11rbitr11ry having regard to the post for which recruitment is mode. A
criteri11 \7hich hos the effect of denying 11 candidate bis right to be con· H
771
772 SUPREME COURT REPORTS [2000] 1 S.C.R.
A sidered for the post on the principle that he is having higher qualification,
than prescribed cannot be rational. (777-E; 781-C]
""
1.2. In the instant case one of the criteria as laid by the Advisory
Committee cunstituted under the Rules that applications of those can·
didates possessing minimum educational qualification of passing IVth
B vernacular standard and/or educated upto passing of\'1Ith Standard only
should be considered for the interview to the post of peons and those who
have studied above Vllth vernacular standard should not be calh:d for
interview, as upheld by the Higb Court is not in any \·ray reasonable or
rational. By adopting such a course High Court has put its stamp of
C approval to another type of reservation for recruitment to the service
which is not permissible. A poor person can certainly acquire qualification
equivalent to S.S.C. Examination and not that he cannot go beyond Stand·
ard VII. Perhaps by restricting appointment to candidate having studied
only upto Standard VII High Court may not be encouraging dropouts. If
an employee does not perform the duties attached to the post disciplinary
D proceedings can certainly be taken against him. An employer cannot throw
up his hands in despair and devise a method denying appointment to a
person v1ho othemise meets the requisite qualifications on the ground that
if appointed, he would not perform his duties. Qualification prescribed is
minimum. Higher qualification cannot become a disadvantage to the can· .r--
E didate. (781-E-F; B·CJ

1.3. If the appointment of a candidate to the posl of peon is restricted
to his having qualified up to Standard VU he will have no chanci. of
promotion to the post of .Regional Language Section Writer or a Clel"'.l. It
is not that quali~ications required for Regional Lunguag1: Section Writer
F pnd Clerk ure to be acquired by a peon during the course of his service.
When Recruitment Rules themselves prescribed that post of a Clerk can
be a promotional post of a peun having requisite qualification, there is
nothing wrong if a peon sends in his request for bdng considered to be
promoted as 11 Clerk. (780-E; G]
G Govt. ofA.P. v. P. Dilip Kumar, (1993] 2 SCC 310; M.P. Public Service
Commission v. Navnit Kumar Potdar, [1994) 6 SCC 293 and Union of India
v. T. Sundaraman and Ors., [1997) 4 SCC 664, relied on.

T.R. Kothandaraman & Ors. v. Tamil Nadu Water Supply and Drainage
H BD and Ors., (1994] 6 SCC 282, distin1,'llished.
MOHD. RIAZVL USMAN OANr v. DV>TI.AND SESSION JUDOE(D.P. WADHWA. J.] 773

S.B. Mathur and Ors. v. Hon'ble the Chief Justice of Delhi High Court A
& Ors., AIR (1988) SC 2073, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1010 of
2CC:l.

From the Judgment and Order dated 1.12.97 of the Bombay High B
Court in W.P. No. 2313 of 1997.

S.G. Ancy, A.K. Sanghi and Manish Pitale for the Appellants.

G.B. Sathe for the Respondents.
c
The Judgment of the Court was delivered by

D.P. WADHWA, J. Leave granted.

Appellants are aggrieved by judgment dated December 1, 1997 of
the Bombay High Court (Nagpur Bench) dismissing their writ petition filed D
under Article 226 of the Constitution wherein they had sought quashing of
se!ection of peons in the Subordinate Judiciary as contrary to relevant rules
for recruitment to Class III and IV services in Subordinate Judicial Service
in the State of Maharashtra. Appellants were also aspirants for these posts.
E
t..:nder the Recruitment Rules for recruitment to Class III and IV
services in Subordinate Judicial Services procedure is prescribed for
recruitment to the posts of various categories of officers in civil and
criminal courts in a district. Recruitment is to be made by District Judge
strictly in order of seniority from the list of candidates to be prepared as
under: F

(a) In preparing the list the District Judge shall act upon the
advice of a committee known as the Advisory Committee.

(b) Such list shall contain names of candidates for recruitment to G
the different categories referred to above in separate parts
for each category.

(c) Subject to Rule 3 no candidate whose name is not on such
list shall be employed in any of the above categories in any
Civil or Criminal court. H
774 SUPREME COURT REPORTS (2000) 1 S.C.R.

A (d) The list prepared by the Advisory Committee shall be final.

Rule 2 provides for constitution of the Advisory Committee, which
shall consist of District Judge as the chairman and other judicial officer,
mentioned therein. Necessary educational and other qualifications, which
would qualify a candidate for being enlisted in various posts, are prescribed
B by Rule 8. For 'Bailiffs' and 'Peons' these are as under :

"Bailiffs : (i) Not lower than a pass in the Regional Language Final
Examination or in the examination of standard VII of a recognised
School with Marathi as the medium of instruction.
c (ii) Active habits and temperament.

Peons : Not lower than a pass in the Examination of Standard IV
in the Regional Language."

D There were 66 posts of peons in the District and Sessions Court,
Nagpur. On advertisement being issued for filling up these posts as many
as 14,965 applications were received. The Advisory Committee constituted
under the Rules laid four criteria in short-listing all the applicants. The
said criteria are as under :

E "(a) The incomplete applications namely not supported by certifi-
cate and kstimonials regarding educational qualification,
<late of birth, caste c:ertificate if belonging to backward class,
should be rejected.

(b) The applications not accompanied with copies of certificates
F and testimonials attested by Gazetted Officer should be
rejected.

(c) The applications of the candidates from backward community
claiming reservation and concession of upper age limit not
accompanied with caste certificate or attested copy of such
G
certificate issued by the competent authority should be
rejected.

(d) Applications of those candidates possessing minimum educa-
tional qualification of passing IVth vernacular standard
H and/or educated upto passing of Vllth Standard only should
MOHD. RIAZUL USMAN GANI v. DJ~TI.AND SESSION JUDGE(D.P. WADHWA, J.) 775

be considered for the interview to the posts of peons and A
those who have studied above Vllth vernacular standard may
not take proper interest in the work of peons and, therefore,
should not be called for interview."

It is the fourth criterion, which is under challenge being arbitrary.
Under the Rules for the post of a peon educational qualification prescribed
B
is not lower than a pass in examination of Standard IV in the regional
language. Out of the applications received the number of applicants falling
in the category of having passed IV to VII Standards was 1340. The
appellants did not fall in that category as they were having higher educa-
tional qualifications. Out of 1340 applicants, who fell in the category of C
those who passed IV standard up to VII standard, only 384 candidates were
found to be eligible satisfying all the full criteria laid down by the Advisory
Committee. 956 candidates were found to be ineligible on one ground or
the other.

D
In the counter affidavit filed in the High Court on the writ petition
of the appellants stand of the Bombay High Court and the District and
Sessions Judge, Nagpur was that the persons who were having higher
educational qualifications do not take proper interest in the work of peons
and that they generally feel shy and below dignity when required to do the
work of sweeping the court rooms, chambers of Judges, etc. It was sub- E
mitted this was based on the experience gained. It was also stated that apart
from the fact that persons with higher educational qualifications thought it
below dignity to do ordinary manual jobs, they would also get frustrated in
the absence of proper avenues for promotion, which would result in
dislocation of the working of the courts. F

Relying on decisions of this Court in Government of A.P. v. P. Dilip
Kumar, [1993] 2 SCC 310, M.P. Public SeTVice Commission v. Navnit Kumar
Potdar, [1994) 6 SCC 293 and Union of India v. T. Sundararaman and
Others, [1997] 4 664, wherein this Court upheld the principle of short-listing
in recruitment process, High Court in its impugned judgment also said that G
the Supreme Court clearly held that it was open to the authority concerned
to restrict the zone of consideration amongst the eligible candidates in any
reasonable manner and that as to what would be the reasonable manner
in a given case would undoubtedly depend on the facts of each case.
ij.eference in this connection was made to another decision of this Court H.
776 SUPREME COURTRFPORTS (2000] 1 S.C.R.
A in S.B. Mathur and Others v. Hon'ble the Chief Justice of Delhi High Court
and others, AIR (1988) SC 2073. Reference was also made by the High
Court to yet another decision of this Court in T.R. Kothandaraman and
Others v. Tamil Nadu Water Supply and Drainage BD and Others (1994) 6
SCC 282, para-23 wherein this Court said that too much emphasis on
B hight:r education may even cause dent to the cause of social justice as it
would be tht: proper section of the socit:ly, which would be deprived of its
lt:gitimatc expectation and that harmony has to be struck by maintaining
reasonableness m the ratio bt:twet:n tht: call of social justicc and the need
for higher t:ducation without in any way jeopardising the principal object
of qualification. No particular ratio can be spelt out, which would satisfy
C these requirements, tht: n::asonablcness of the ratio depending upon the
facts of each case.

In the case of M.P. Public Service Commission v. Navnit Kumar
Potdar, [1994) 6 SCC 293 for the purpose of short-listing a longer period
of experience than the minimum prescribed was used as a criterion by the
D Public Service Commission for calling candidates for interview. This Court
upheld the short-listing of candidates based on some rational and
reasonable basis.

In the case of Government of Andhra Pradesh v. P. Dilip Kumar,
E (1993) 2 sec 310 this Court said that it was always open to the recruiting
agency to screen candidatt:s due for consideration at the thrt:shold of the
process of selection by prescribing higher eligibility qualification so that
the fidd of selt:ction can be narrowed down with the ultimatt: objective of
promoting candidah:s with higher education to enter the zone of considera-
F tion.

In the case of Union of India and Another v. T. Sundararaman and
Others, (1997) 4 SCC 664 lJnion Public Service Commission invited applica-
tions for the posts of Assistant Professors of Medicines. The essential
qualification for the purpose were set out in the application and one of the
G qualifications was: at least three years teaching experience in the spt:ciality
concerned as a Lt:cturer(futor/Demonstrator/Senior Resident/Registrar
after obtaining the Post Graduate degree qualification. It was also stated
in the advertisement that prescribed essential qualifications were the min-
imum qualifications and the mere possession of minimum qualifications
H does not entitle the candidate to be called for interview. Where the number
MOHD. RIAZL'L L'SMA.'< GANI v. DISTf.AND SESSION JLDGE[D.P. WADHWA, J.) 777

of applications received in n:spunse to an advertisement is large and it will A
not be convenient or possible for the Commission to interview all the
candidates, the Commission may restrict the number of candidates to a
reasonable limit on the basis of qualification and experience higher than
the minimum prescribed in the advertisement or by holding a screening
test. 37 apptications were received for three posts. The Commission short· B
listed the candidates on the basis of four years experience or mon:. As a
result 20 candidates were called for interview. Respondent did not qualify
for the short-listing. He challenged the selection which was upheld by the
Central Administrative Tribunal, Madras Bench. On appeal filed by t.:nion
of India this Court said that the procedure adopted by the Commission was
a legitimate. The decision of the Central Administrative Tribunal was set
c
aside.

Applying the principles laid down by this Court in the aforesaid
decisions High Court held that the four criteria adopted by the Advisory
Committee for short-listing cannot be said to be unreasonable. High Court D
held that fourth criterion was based on actual experience as reflected in
the affidavit filed by the Additional Registrar of the High Court and that
criterion was not in any manner umeasonable. Writ pt:tition was dismissed.

Laying of criteria when thert: arc large number of candidat.:s is
permissible but that criteria must be reasonable and not arbitrary having
E
regard to the post for which recruitment is made.

We, however, do not think that principle laid by this Court in the
case of T.R. Kothandaraman & Ors. v. Tamil Nadu Water Supply & Drainage
BD & Ors., [1994] 6 SCC 282 has be.:n correctly applied by the High Court F
in the present case. Question before the Supreme Court concerned with
classification based on higher educational qualification for the purpose of
promotion in the service. This is how this Court said (para 16) :

'From what has been stated above, the following legal propositions G
emerge regarding educational qualification being a basis of clas-
sification relating to promotion in public service :

(1) Higher educational qualification is a permissible basis of
classification, acceptability of which will depend on the facts
and circumstances uf each case. H
778 SUPREME COURT REPORTS [2000) 1 S.C.R.

A (2) Higher educational qualification can be the basis not only for
barring promotion, but also for restricting the scope of
promotion.

(3) Restriction placed cannot however go to the extent of serious-
ly jeopardising the chances of promotion. To decide this, the
B
extent of restriction shall have also to be looked into to
ascertain whether it is reasonable. Reasons for this arc being
indicated later.

High Court relied upon observation made in para 23 of the judgment.
C We may consider the circumstances under which those observations came
to be made. The appellants in this Court had challenged the validity of
Rule 2(b) of the Special Rules for the Tamil Nadu Agriculture Engineering
Service being violative of Article 16 of the Constitution. Rule 2(b)
prescribed ratio of 3:2 for direct rc:cruits and promotees, the former being
D degree holders and the later diploma holders. This Court observed that
higher educational qualification has relevance in so far as the holding of
higher promotional post is concerned, in view of the nature of the functions
and duties attached to that post. Diploma holder Assistant Engineers to
become eligible for promotion to the post of Executive Engineer could be
considered only if they were to have "exceptional merit" in work. It was
E found that in other departments where separate lists were being maintained
ratio of degree holders and diploma holders was 3:1 whereas in the present
case ratio of 3:2 was recommended taking into account the large number
of diploma holders. It was also found that a degree holder has to put in
six years of study at college level after leaving school stage whereas diploma
F holders have only 3 years study at the institute of technology after school
stage. Because of that, the Court said, higher technical caliber in degree
holders is presumed. Then this Court said (paras 23 and 24) :

"The next question to be examined is about the extent of the
preference given to the degree-holders. At this stage, we may first
G give our reasons as to why this aspect is amenable to examination.
The rule-making authority having made a diploma- holder eligible
for promotion, it follows that a diploma-holder does not suffer
from such an infirmity as to make him totally unfit for holdiiig t4e
higher post. If that is so, question is whether the ratio could be
H made so inequitable as to mock at the guarantee of equality? The
MOHD. RIAZUL USMAN GANI v. DISIT. AND SESSION JUDGE (D.P. WADHWA, J.) 779

right which has been conferred by one hand cannot be taken away A
by another; nor can the right be converted to a husk. It must
continue to be a meaningful right. Too much emphasis on higher
education may even cause dent to cause of social justice, as it would
be the poorer section of the society which would be deprived of
its legitimate expectations. The preference given to the degree-
holders would, at the same time, give fillip to the desire to receive
B
higher education, as such persons would always be favourably
placed as compared to the lesser educated ones. A harmony would
thus be struck, by maintaining reasonableness in the ratio, between
the call of social justice and the m:ed for higher education, without
in any way jeopardising the principal object of classification. But c
then, no particular ratio can be spelt out which would satisfy these
requirements; the reasonableness of the ratio shall depend on facts
of each case.

In the present cases the ratio is 3:2 and we regard the same as
reasonable in view of what has been stated above relating to D
adoption of this ratio. Having fdt satisfied about the permissibility
of the classification also, the cases challenging the constitutionality
of the quota for promotion as fixed in this service have to be
dismissed."
E
In the present case we find that the candidates with higher education
than Standard VII were completely shutout for being considered for the
posts of peons. Recruitment Rules also provide for promotion. Rule 3(ii)
we may quote :

(ii) The District Judge may promote - F

(a) a Peon, a Watchman, a Gardener, or a Sweeper to the post
of Bailiff;

(b) a Peon, a Watchman, a Gardner, a Sweeper or a Bailiff to
the post of a Regional (Language) Section Writer an English G
Section Writer or a Clerk; and

(c) a Peon, a Watchman, a Gardner, a Sweeper or a Bailiff, a
Regional (Language) Section Writer and English Section
Writer or a Clerk to the post of Stenographer.' H
780 SUPREME COURT REPORTS (2COO) 1 S.C.R.
A Now the qualifications for appointment to the posts of Clerks and
Regional (Language) Section Writers are :

"Clerks: (i) Not lower than a pass in the S.S.C. or other examination
recognised as equivalent to the S.S.C. Examination.

B (ii) A n:asonably good speed in typing.

(iii) Adequate knowledge of the regional language of the Court in
the District.

English Section Writers: (1) Not lower than a pass in the S.S.C. or
C other examination recognised as equivalent to the S.S.C. Examina-
tion.

(ii) A reasonably good speed in typing.

Regional Language Section Writers : - Not lower than a pass in the
D Regional Language Final Examination or in the examination of
Standard VII of a recognised school with Marathi as the medium
of instructions."

If the appointment of a C'.andidate to the post of peon is restricted to
E his having qualified up to Standard VII he will have no chance of promo-
tion to tht post of Regional Language Section Writer or a Clerk. It is not
that qualifications required for Regional Language Section Writer and
Clerk are to be acquired by a peon during the course of his service. During
the course of hearing we were referred to a few applications submitted by
peons who are already working wherein they had prayed for their being
F considered for appointment to post of clerks since they had acquired
requisite qualifications for tha.t post. On this an argument is sought to be
based that those peons with higher qualifications are not interested in their
work as peons. We can give: no credence to such an argument when
Recruitment Rules themselves prescribe that post of a clerk can be a
G promotional post for a peon having requisite qualification. There is nothing
wrong if a peon sends in his request for being considered to be promoted
as a clerk.

We do not know what are the duties attached to the post of a peon.
But perhaps one thing peons are not required to do tht: work of swet:pers
H or gardeners. Qualifications for gardeners and sweept:rs have been
MOHD. R!AZlJL USMAN GANI v. DISIT. AND SF.SSION Jt:DGE [D.P. WADHWA. J.) 781

separately provided in the Recruitment Rules and the only qualification for A
.- both the categories of these posts is "good physique and also to carry out
the duties attached to the post."

If an employee docs not perform the duties attached to the post
disciplinary proceedings can certainly be taken against him. An employer
cannot throw up his hands in despair and devise a method denying appoint· B
ment to a person who otherwise meets the requisite qualifications on the
ground that if appointed, he would n:it perform his duties. Qualification
.~
prescribed is minimum. Higher qualification cannot become a disadvantage
to the candidate.

A criterion which has the effect of denying a candidate his right to
c
be considered for the post on the principle that he is having higher
qualification, than prescribed cannot be rational. We have not been ablt:
to appreciate as to why those candidate~ who possessed qualifications
equivalent to SSC examination could also not be considered. We are saying
this on the facts of the case in hand and should not be understood as laying D
down a rule of universal application.

We do not think, therefore, that the criterion four as laid by the
Advisory Committee constituted under the Rules and upheld by the High
Court is in any way reasonable or rational. By adopting such a course High
Court has put its stamp of approval to another type of reservation for E
recruitment to the service which is not permissible. A poor person can
''r certainly acquire qualification equivalent to S.S.C. Examination and not
that he cannot go beyond Standard VII. Perhaps by restricting appointment
to candidate having studied only up to Standard VII High Court may not
be encouraging dropouts. F
~

Considering whole aspect of the matter we must upset the fourth
_, criterion laid by the Advisory Committee. Appellants have been wrongly
) denied of their right for being considered for the post of peon. However,
in the counter affidavit filed before us by the Additional Registrar {Legal),
High Court on behalf of the District & Sessions Judge and the High Court G
it has been stated that process of selection of peon has already been
completed and the candidate from the select list are being posted as peons.
;..
In this view of the matter, we would not like to disturb the appointment of
the candidates already selected. Thus, though we set aside the impugned
judgment of the High Court, we will not issue any further directions for H
L_

782 SUPREME COURT REPORTS (2000) 1 S.C.R.
A cancelling the appointments of the candidates already selected and for
starting of the whole selection process afresh.

The appeal is, therefore, disposed of in above terms. In the cir-
cumstances, however, there shall be no order as to costs.

B R.A. Appeal disposed of.