Navjiwan vs State of Punjab

Rajesh Bindal, J.—This order will dispose of a bunch of petitions bearing CWP Nos. 15308, 11563, 13279, 14825 and 15287 of 2010, as common questions of law and facts are involved. The issue involved is as to whether the petitioners are eligible for the post of Junior Draftsman (Civil) and Junior Draftsman (Mechanical).

Learned counsel for the petitioner in CWP No. 15308 of 2010 submitted that 50 posts of Junior Draftsman (Civil/Mechanical) were advertised. The qualification required for the post is certificate in Civil/Mechanical Draftsman awarded by State Board of Technical Education or from any other recognized institution. The petitioner, who belongs to Scheduled Caste (Balmiki) category, passed diploma in Civil Engineering from Punjab State Board of Technical Education and Industrial Training in the year 2008 in second division. In response to the advertisement issued, he applied for the post of Junior Draftsman. In terms of the conditions laid down in the advertisement, selections were to be made merely on the basis of marks obtained in written test. The petitioner was considered eligible and was permitted to appear in the competitive examination. He obtained 45 marks. At the time of counselling, the petitioner was required to produce two years trade certificate of Civil/Mechanical Draftsmanship. As the petitioner was having higher qualification, he could not produce the aforesaid certificate. His candidature was rejected vide communication dated 15.6.2010 holding that the petitioner is not having the minimum qualification prescribed in the advertisement. He further submitted that in the category of the petitioner, the persons, who secured marks less than the petitioner, were appointed.

As far as qualification of the petitioner is concerned, learned counsel submitted that on 4.9.2013, considering the contentions raised by learned counsel for both the parties, this court referred the matter to the Director, PEC University of Technology, Chandigarh, to opine as to whether the qualification possessed by the petitioner can be equated with the qualification required for the post as prescribed in the advertisement. The report has been received, in terms of which the opinion expressed by the Committee constituted by Director, PEC University of Technology is that three years Diploma in Architectural Assistanceship/three years Diploma in Civil Engineering can be considered as higher qualifications in the similar field/trade or specialization as that of the certificate in Civil/Mechanical Drafts-

The submission is that in terms of the aforesaid opinion expressed by the expert body, rejection of the candidature of the petitioner was illegal and he being more meritorious than the persons selected deserved to be appointed. Once the opinion, as expressed by the expert body, constituted by the Director, PEC University of Technology is that the qualification possessed by the petitioner is higher in line, his candidature could not be rejected as he was not seeking any extra benefit therefor. In support of the plea, reliance was placed on a Full Bench judgment of this Court in State of Punjab Vs. Manjit Singh and Others, .

Learned counsel further submitted that prior to the advertisement in question and even subsequent thereto, the qualification prescribed for the post is three years Diploma in Architectural Assistanceship awarded by the State Board of Technical Education Punjab or two years certificate course in Civil Draftsmanship from ITI or its equivalent with one year experience in the field of planning and designing in any institution or department after obtaining the qualification.

In other petitions, learned counsel for the petitioners, while adopting the contentions raised by learned counsel for the petitioner in CWP No. 15308 of 2010, as noticed above, submitted that the petitioners were applicants for the same post but in different categories and in each of them, the candidates, who secured marks less than the petitioners in written examination, have been selected.

On the other hand, learned counsel for the State submitted that qualifications for the post have been specifically mentioned in the advertisement. These are strictly as per Punjab, Department of Public Works (Public Health Branch) Draftsman and Tracers (Class-III) Service Rules, 1988 (for short, ''the Rules''). Once the petitioners do not possess that qualification, they cannot seek consideration of their candidature. The same has rightly been rejected. He further submitted that earlier vide order dated 9.8.2011, this Court directed the official respondents to constitute an expert committee to examine as to whether Diploma in Civil Engineering is a higher qualification as compared to the Certificate Course of Draftsman. The committee, consisting of two Superintending Engineers and one Executive Engineer, constituted for the purpose, opined that both are not equivalent as these are not in same line. It was opined therein that syllabi prescribed for both the courses was different. It was further submitted that once the aforesaid report is there, the same should be accepted.

As regards the report received from PEC University of Technology, the submission is that the same should not be accepted as the committee constituted by the Director therein was not having complete data before it. Once the qualifications have been prescribed in the Rules, the State will go strictly by that and the candidates possessing no other qualification will be eligible.

Learned counsel for the selected candidates submitted that the employer is the best judge to prescribe the qualifications required for the post considering the duties to be discharged by the post holder. In the present case, the qualifications have been so prescribed in the Rules. The qualifications are specific. It has no room for any equivalence or higher qualification, as there is no such provision. Unless there is enabling provision in the Rules to consider equivalent or higher qualification than what is prescribed in the Rules, the candidates, who are not possessing the qualifications so prescribed in the Rules, would be ineligible. He further submitted that it does not fall within the domain of the jurisdiction of the court to find out whether a qualification possessed by a candidate is higher or not. It has to go strictly in terms of the requirement of the Rules. The mandate of the Rules should not be given a go bye under the garb of expert opinion. In support of his plea, reliance was placed upon judgments of this Court in Som Dutt v. State of Haryana and another, 1983 (3) SLR 141, Rishi Raj and others v. State of Haryana and others, 2009 (4) SLR 420, Rakesh and Others Vs. State of Haryana and Others, and CWP No. 19263 of 2012 Vikas Sharma v. State of Haryana and others, decided on 20.1.2014.

In response to the aforesaid contentions raised by learned counsel for the respondents, learned counsel for the petitioners submitted that in the Rules, the post of Tracer has now been re-designated as that of Junior Draftsman. The post higher in line is that of Draftsman. A Tracer/Junior Draftsman is eligible to be promoted as Draftsman for which 33% quota has been prescribed. The qualification, as prescribed in the Rules for recruitment of Draftsman, is certificate in Civil Draftsman awarded by State Board of Technical Education or from any other recognised institution, whereas the qualification prescribed for the post of Draftsman for direct recruitment is Diploma in Civil Engineering or Diploma in Design and Drafting in Civil. Even for the purpose of promotion, a Junior Draftsman/Tracer is required to have two years experience and the qualification of Diploma in Civil Engineering or Diploma in Design and Drafting in Civil or certificate in Civil Draftsman. The aforesaid provisions of the Rules clearly show that in terms of the qualification possessed by the petitioners, they are eligible for the higher post of Draftsman, which is the promotional post of Junior Draftsman.

Learned counsel further referred to the contention raised in para No. 14 of CWP No. 15308 of 2010, where qualifications for the post of Junior Draftsman (Civil) in the advertisement issued in the year 1998 have been referred to, which are Diploma in Civil Engineering or Certificate in Civil Draftsman. The submission is that even in the advertisement issued after the present advertisement, again the same qualifications are being prescribed. Regarding report of the committee constituted by the State, learned counsel for the petitioners submitted that as in the reply, the State has taken a definite stand that the petitioners are not eligible, the committee of officers junior to them could not go beyond that. He further submitted that to the report received from PEC University of Technology, no objections have been raised. Further, it is stated that in terms of the enquiry under the Right to Information Act, vide communication dated 17.4.2014, it has been informed that total 66 posts of Junior Draftsman in different categories are lying vacant.

Heard learned counsel for the parties and perused the paper book. Before this court proceeds to deal with the issue raised in the present petitions, it would be relevant to refer to the provisions of Rules prescribing qualifications for the post of Junior Draftsman/Tracer and the promotional post of Draftsman. The same are extracted below:

The qualification prescribed for appointment of Junior Draftsman/Tracer is certificate course in Draftsman Trade conducted by the State Board of Technical Education. The qualification possessed by the petitioners is diploma in Civil Engineering.

The issue is as to whether the petitioners are eligible for the post of Junior Draftsman as their claim is that they are having qualification higher than what has been prescribed in the Rules.

The first question which arises for consideration is as to whether the qualification possessed by the petitioners is a higher qualification in the same line. Initially, vide order dated 9.8.2011, the matter was referred to a committee to be constituted by the Government for considering equivalence of the qualification. A committee of two Superintending Engineers and one Executive Engineer was constituted, who opined that Diploma in Civil Engineering and Certificate Course of Draftsman are not equivalent as these are not in same line. However, objection was raised to the aforesaid report on the plea that the same was biased as the opinion was expressed by none else than officers of the department itself. The same was not an independent body.

Vide order dated 4.9.2013, the matter was referred to PEC University of Technology, where the matter was examined by a Committee of three faculty members of the department concerned and it was opined that three years Diploma in Architectural Assistanceship/three years Diploma in Civil Engineering can be considered as higher qualification than the certificate course in the same line. The aforesaid opinion has been expressed by a committee constituted by an academic body. In the report, they have considered the syllabi/course of study of the Civil/Mechanical Draftsman issued by the National Council for Vocational Training, Ministry of Labour and Employment, Govt. of India and compared it with the syllabi/course of study of three years Diploma in Architectural Assistanceship/three years Diploma in Civil Engineering of the Punjab State Board of Technical Education and Industrial Training. Hours of teaching of different subjects have also been considered. The opinion expressed by an expert body on academic issues is generally accepted. In the present case also, as against the opinion expressed by a committee constituted by the Government, in my opinion, the report from PEC University of Technology deserves to be accepted.

Further, this issue is also required to be examined from another angle. The qualification prescribed for the post of Tracer/Junior Draftsman by way of direct recruitment is certificate in Civil Draftsman awarded by the State Board of Technical Education or from any other recognised Institution and by way of promotion from amongst Class IV employees working under the control of the Chief Engineer, who are Matriculates with Drawing, Physics and Chemistry as one of the subjects and have worked as such for a period of five years. The Draftsman is a post, which is higher in the cadre and promotional post for Junior Draftsman, to be filled 67% by direct appointment and 33% by way of promotion. The qualification prescribed for the post of Draftsman by direct appointment is Diploma in Civil Engineering or Diploma in Design and Drafting in Civil. Same is the qualification which is possessed by the petitioners. Meaning thereby they are eligible to be appointed on a promotional post from Junior Draftsman, hence it can be opined that the qualification possessed by them is higher in the same line.

A similar issue came up for consideration before Hon''ble the Supreme Court in Jyoti K.K. and Others Vs. Kerala Public Service Commission and Others, . In that case, the post of sub-engineers (electrical) were advertised, in which the qualification required was either diploma or certificate course in electrical engineering. The candidates, who raised the issue, were holding B. Tech. Degree in electrical engineering. The issue under consideration before Hon''ble the Supreme Court was as to whether they were eligible having qualification higher in the same line. It was opined that if a person acquires higher qualification in the same faculty, such qualification can certainly lead to presuppose the acquisition of lower qualification prescribed for the post. In that case, in the relevant service Rules, for the post of Assistant Engineer, which was superior in hierarchy, degree in Electrical Engineering was prescribed as the qualification. In that factual matrix, Hon''ble the Supreme Court opined that the candidates, who were possessing degree in Electrical Engineering, are presumed to be having the lower qualification of diploma in that subject and the same should be considered sufficient for the post. The relevant paras thereof are extracted below:

"9. It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for that post in order to attract that part of the rule to the effect that such of those higher qualifications which presuppose the acquisition of the lower qualifications prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far. Under the relevant rules, for the post of assistant engineer, degree in electrical engineering of Kerala University or other equivalent qualification recognised or equivalent thereto has been prescribed. For a higher post when a direct recruitment has to be held, the qualification that has to be obtained, obviously gives an indication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of sub-engineer.

In that view of the matter the qualification of degree in electrical engineering presupposes the acquisition of the lower qualification of diploma in that subject prescribed for the post, shall be considered to be sufficient for that post. In the event the government is of the view that only diploma holders should have applied to post of sub-engineers but not all those who possess higher qualifications, either this rule should have excluded in respect of candidates who possess higher qualifications or the position should have been made clear that degree holder shall not be eligible to apply for such post. When that position is not clear but on the other hand rules do not disqualify per se the holders of higher qualifications in the same faculty, it becomes clear that the rule could be understood in an appropriate manner as stated above........"

The appointment of the candidates possessing B.Tech. Degree in Electrical Engineering, which was opined to be higher in the same line, was upheld by Hon''ble the Supreme Court.

In view of the aforesaid factual matrix, it can safely be opined that the qualification possessed by the petitioners, which is diploma in Civil Engineering is higher in the same line.

The issue under consideration before the Full Bench of this Court in Som Dutt''s case (supra) was a bit different. The proposition of law laid down therein cannot be applied in abstract in the case in hand. There the post in question was of JBT teacher, for which the qualification prescribed was two years JBT/Diploma in Education Training Course or equivalent. The candidates, who were possessing higher qualification of Bachelor of Education, were claiming that they having higher qualification should be treated eligible. The issue regarding eligibility of the candidates having higher qualification was considered in the light of the fact that there is material difference in teaching the junior and senior classes. A technically higher qualification may be high sounding and superior, but in actual practice may be wholly wasteful and indeed counter-productive when it comes to teaching at the basic primary level or even at the kindergarten level. There was substantial difference in the syllabi of diploma in Junior Basic Training, which was meant to teach primary schools from Class I to V and in Bachelor of Education, which is directed to teach classes from VI onwards. Under these circumstances, it was opined that higher qualification possessed by a candidate in that context was not suitable for the post in question with reference to the duties to be discharged and such a person cannot be held eligible. It was opined that employer had a right to insist on literal adherence of the qualification prescribed in the Rules. In fact, similar view was expressed by Hon''ble the Supreme Court in in SLP (Civil) No. 13955 of 2009 State of Uttarakhand and others v. Deep Chandra Tewari and another, decided on 1.11.2013.

In Rishi Raj''s case (supra), this court, on facts, found that the candidates, who had been selected, were not having requisite analytical experience, as was required for the post in question. It was under these circumstances, the court opined that whatever is specified in the Rules should be strictly adhered to.

In Vikas Sharma''s case (supra), the qualification required for the post was M.A. degree in Sanskrit. The issue sought to be raised before the court was as to whether Acharya degree possessed by the petitioners was equal to M.A. in Sanskrit considering the equivalence list of Maharishi Dayanand University, Rohtak and Kurukshetra University, Kurukshetra, where Acharya degree was not declared equivalent to M.A. in Sanskrit except that it was treated equal to Acharya of the concerned University. This court opined that the candidates were not eligible as they were not possessing the basic qualification required under the Rules.

In terms of the judgment of Full Bench of this Court in Manjit Singh''s case (supra), a candidate possessing higher qualification in the same line cannot be excluded from consideration. It is a different matter that he may not be entitled to any weightage for extra qualification. In view of that fact, the petitioners, who have higher qualification than what is prescribed in the advertisement for the post of Junior Draftsman, are eligible for consideration and rejection of their candidature merely on that ground is erroneous.

In the case in hand, the facts are altogether different. The qualification as possessed by the petitioners herein is higher in the same line, which will make qualitative difference in performance of their duties as once the qualification is higher in the same line, it presupposes acquisition of lower qualification in the same line in terms of the opinion expressed by Hon''ble the Supreme Court in Jyoti K.K. and others'' case (supra). In the same line is the judgment of this Court in Rakesh''s case (supra).

The contention raised by learned counsel for the selected candidates that in the Rules, it is not mentioned that a candidate having equivalent qualification shall also be eligible is merely to be noticed and rejected. Here is not a case of an equivalent qualification, rather, the issue is that the candidates are possessing qualification which is higher in the same line. Still further, it is well known that ever since the Rules were framed, new courses have been devised, which are same or similar in line except the nomenclature thereof. The candidates having those qualifications cannot be held ineligible as technically their qualification as such may not be prescribed in any Rules. That means that the petitioners are having the basic qualification required, hence, same deserves to be rejected.

In view of the aforesaid discussions and finding that rejection of the candidature of the petitioners, who were higher in merit than the selected candidates but still not considered for appointment was erroneous, the next question arises as to which relief the petitioners are entitled to.

The advertisement in the present case was issued way back in 2009. The appointments were made thereafter. Even communication dated 15.6.2010, vide which candidature of the petitioner in CWP No. 15308 of 2010 was cancelled, was issued about four years back. Meaning thereby, the selected candidates are working on the post for the last about 3-4 years. As was claimed by the petitioners in response to a query under the Right to Information Act, vide memo dated 17.4.2014, Assistant Public Information Officer-cum-Superintendent, office of Chief Engineer (North), Punjab, Water Supply & Sanitation Department, Patiala had furnished the information that 66 vacancies of Junior Draftsman are lying vacant in different categories.

Hon''ble the Supreme Court in Rajesh Kumar and Others etc. Vs. State of Bihar and Others etc., accepted the submission made on behalf of the selected candidates on the basis of alleged incorrect answer key that in case they do not fall within the select list prepared after reevaluation of the answer sheets with the help of correct answer key, they should not be ousted. The reason was that they were not responsible for the error committed and further they had served the State without any complaint for nearly 7 years. Most of them may have become over-age for fresh recruitment in the State or outside the State. They had lost opportunity to appear in any subsequent examination held after their selection. Their ouster from service, once selected on the basis of a competitive examination without there being any allegation of malpractice, misrepresentation or other extraneous consideration, will cause undue hardship to them and ruin their careers and lives. It was found that the selected candidates did not, in any manner, contributed to the preparation of erroneous key or the distorted result. In these circumstances, ouster of the candidates, who may not fall in the select list after re-evaluation of the result, need not be an inevitable and inexorable consequence. However, re-evaluation process may additionally benefit those who have lost the hope of appointment on the basis of a wrong key applied for evaluating the answer sheets at the first place. The candidates, who find place in the merit list after re-evaluation, would certainly be entitled to appointment and place in the seniority list as per their merit position. Relevant paragraphs of the judgment and the directions issued by Hon''ble the Supreme Court in the aforesaid judgment are extracted below:

"20. That brings us to the submission by Mr. Rao that while reevaluation is a good option not only to do justice to those who may have suffered on account of an erroneous key being applied to the process but also to the writ petitioners. Respondents 6 to 18 in the matter of allocating to them their rightful place in the merit list. Such evaluation need not necessarily result in the ouster of the appellants should they be found to fall below the "cut-off mark in the merit list. Mr. Rao gave two reasons in support of that submission. Firstly, he contended that the appellants are not responsible for the error committed by the parties in the matter of evaluation of the answer scripts. The position may have been different if the appellants were guilty of any fraud, misrepresentation or malpractice that would have deprived them of any sympathy from the court or justified their ouster. Secondly, he contended that the appellants have served the State efficiently and without any complaint for nearly seven years now and most of them, if not all, may have become overage for fresh recruitment within the State or outside the State. They have also lost the opportunity to appear in the subsequent examination held in the year 2007. Their ouster from service after their employment on the basis of a properly conducted competitive examination not itself affected by any malpractice or other extraneous consideration or misrepresentation will cause hardship to them and ruin their careers and lives. The experience gained by these appellants over the years would also, according to Mr. Rao, go waste as the State will not have the advantage of using valuable human resource which was found useful in the service of the people of the State of Bihar for a long time. Mr. Rao, therefore, prayed for a suitable direction that while re-evaluation can determine the inter se position of the writ petitioners and the appellants in these appeals, the result of such re-evaluation may not lead to their ouster from service, if they fell below the cutoff line.

There is considerable merit in the submission of Mr. Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter se merit position may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list.

In the result, we allow these appeals, set aside the order passed by the High Court and direct that:

22.1 Answer scripts of candidates appearing in ''A'' series of competition examination held pursuant to Advertisement No. 1406 of 2006 shall be got reevaluated on the basis of a correct key prepared on the basis of the report of Dr. (Prof.) C.N. Sinha and Prof. K. S.P. Singh and the observations made in the body of this order and a fresh merit list drawn up on that basis.

22.2 Candidates who figure in the merit list but have not been appointed shall be offered appointments in their favour. Such candidates would earn their seniority from the date the appellants were first appointed in accordance with their merit position but without any back wages or other benefit whatsoever.

22.3 in case the writ petitioners, Respondents 6 to 18 also figure in the merit list after re-evaluation of the answer scripts, their appointments shall relate back to the date when the appellants were first appointed with continuity of service to them for purpose of seniority but without any back wages or other incidental benefits.

22.4 Such of the appellants as do not make the grade after re-evaluation shall not be ousted from service, but shall figure at the bottom of the list of selected candidates based on the first selection in terms of Advertisement No. 1406 of 2006 and the second selection held pursuant to Advertisement No. 1906 of 2006.

22.5 The needful shall be done by the respondents, State and the Staff Selection Commission expeditiously but not later than three months from the date a copy of this order is made available to them."

(Emphasis supplied)

In Vikas Pratap Singh and Others Vs. State of Chhattisgarh and Others, , Hon''ble the Supreme Court considered the issue in the case of the candidates, who were removed from service having not found place in merit list in terms of the revised result. When they approached the court, the High Court allowed them to continue in service. The issue considered by Hon''ble the Supreme Court was as under:

"Whether the VYAPM (respondent-Board) after publication of the select list and passing of the appointment orders also on the basis of evaluation of questions, could have done the exercise of re-evaluating the answers after editing and reframing answers, and prepare the second select list for fresh recruitment of the candidates, cancelling the first select list?"

While considering the issue and relying upon an earlier judgment of Hon''ble the Supreme Court in Rajesh Kumar''s case (supra), Hon''ble the Supreme Court held that as the candidates, who had been appointed in terms of erroneous evaluation of answer sheets at the first time and having served the State for considerable length of time but do not find place in the merit list drawn after re-evaluation, should be permitted to continue, however, they were to be placed at the bottom of fresh merit list. While referring to maxim of fraus et jus nunquam cohabitant (fraud and justice never dwell together), it was opined that the same principle continues to dwell in spirit and body of service jurisprudence. No right is vested in a candidate who obtains employment by fraud, mischief, misrepresentation or malafide. He cannot be permitted to reap the benefits of wrongful appointment. However, the cases of the candidates, who were appointed without any mistake on their part, the courts have always taken a sympathetic view. Relevant paras of the judgment are extracted below:

"20. The pristine maxim of fraus et jus nunquam cohabitant (fraud and justice never dwell together) has never lost its temper over the centuries and it continues to dwell in spirit and body of service law jurisprudence. It is settled law that no legal right in respect of appointment to a said post vests in a candidate who has obtained the employment by fraud, mischief, misrepresentation or malafide. (See: District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another Vs. M. Tripura Sundari Devi, , S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, and Union of India and others Vs. M. Bhaskaran, G. Radhakrishnan and C. Devan, . It is also settled law that a person appointed erroneously on a post must not reap the benefits of wrongful appointment jeopardizing the interests of the meritorious and worthy candidates. However, in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, this Court has taken a sympathetic view in the light of various factors including bona fide of the candidate in such appointment and length of service of the candidate after such appointment (See: Vinodan T. and Others Vs. University of Calicut and Others, ; State of U.P. Vs. Neeraj Awasthi and Others, ).

In Girjesh Shrivastava and Others Vs. State of M.P. and Others, , the High Court had invalidated the rule prescribing selection procedure which awarded grace marks of 25 per cent and age relaxation to the candidates with three years'' long nonformal teaching experience as a consequence of which several candidates appointed as teachers at the formal education institutions under the said rule stood ousted. This Court while concurring with the observations made by the High Court kept in view that upon rectification of irregularities in appointment after a considerable length of time an order for cancellation of appointment would severely affect economic security of a number of candidates and observed as follows:

"28....Most of them were earlier teaching in Non-formal education centers, from where they had resigned to apply in response to the advertisement. They had left their previous employment in view of the fact that for their three year long teaching experiences, the interview process in the present selection was awarding them grace marks of 25 per cent. It had also given them a relaxation of 8 years with respect to their age. Now, if they lose their jobs as a result of High Court''s order, they would be effectively unemployed as they cannot even revert to their earlier jobs in the Non-formal education centers, which have been abolished since then. This would severely affect the economic security of many families. Most of them are between the age group of 35-45 years, and the prospects for them of finding another job are rather dim. Some of them were in fact awaiting their salary rise at the time of quashing of their appointment by the High Court."

Therefore, mindful of the aforesaid circumstances this court directed non-ouster of the candidates appointed under the invalidated rule.

In Union of India (UOI) and Another Vs. Narendra Singh, this Court considered the age of the employee who was erroneously promoted and the duration of his service on the promoted post and the factor of retiring from service on attaining the age of superannuation and observed as follows:

"31. The last prayer on behalf of the respondent, however, needs to be sympathetically considered. The respondent is holding the post of Senior Accountant (Functional) since last seventeen years. He is on the verge of retirement, so much so, that only few days have remained. He will be reaching at the age of superannuation by the end of this month, i.e. December 31, 2007. In our view, therefore, it would not be appropriate now to revert the respondent to the post of Accountant for very short period. We, therefore, direct the appellants to continue the respondent as Senior Accountant (Functional) till he reaches the age of superannuation, i.e. upto December 31, 2007. At the same time, we hold that since the action of the Authorities was in accordance with Statutory Rules, an order passed by the Deputy Accountant-General cancelling promotion of the respondent and reverting him to his substantive post of Accountant was legal and valid and the respondent could not have been promoted as Senior Accountant, he would be deemed to have retired as Accountant and not as Senior Accountant (Functional) and his pensionary and retiral benefits would be fixed accordingly by treating him as Accountant all through out.

For the foregoing reasons, the appeal is partly allowed. Though the respondent is allowed to continue on the post of Senior Accountant (Functional) till he reaches the age of retirement i.e. December 31, 2007 and salary paid to him in that capacity will not be recovered, his retiral benefits will be fixed not as Senior Accountant (Functional) but as Accountant. In the facts and circumstances of the case, there shall be no order as to costs."

This Court in Gujarat State Dy. Executive Engineers'' Association Vs. State of Gujarat and Others, although recorded a finding that appointments given under the ''wait list'' were not in accordance with law but refused to set aside such appointments in view of length of service (five years and more).

In Buddhi Nath Chaudhary and Others Etc. Vs. Abahi Kumar and Others, , even though the appointments were held to be improper, this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained experience and observed:

"We have extended equitable considerations to such selected candidates who have worked on the posts for a long period."

(See: M.S. Mudhol and Another Vs. S.D. Halegkar and Others, and Tridip Kumar Dingal and Others Vs. State of West Bengal and Others, .

Admittedly, in the instant case the error committed by the respondent-Board in the matter of evaluation of the answer scripts could not be attributed to the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their ouster upon re-evaluation and deprived them of any sympathy from this court irrespective of their length of service.

In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent- State for more than three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list.

Accordingly, we direct the respondent-State to appoint the appellants in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation.

We clarify that their appointment shall be for all intents and purpose be fresh appointment which would not entitle the appellants to any back wages, seniority or any other benefit based on their earlier appointment."

(Emphasis supplied)

The same view was expressed by this court in CWP No. 12835 of 2012 Sahil Aggarwal v. State of Punjab and others, decided on 26.4.2014.

In the present set of petitions, there are total 13 petitioners. There is no allegation against the selected candidates. The issue was regarding equivalence of qualification and eligibility of the petitioners. The case of the petitioners is that they have higher qualification than the one prescribed in the Rules. As per the information supplied under the Right to Information Act, 66 posts of Junior Draftsman in different categories are still lying vacant.

One of the contentions raised by learned counsel for the selected candidates, who had filed application to intervene in the case, is that all the selected candidates have not been impleaded as respondents in the petition. The petitioners in fact have impleaded the candidates, who were going to be affected in case they were given appointment, as they were at the bottom of the merit list, but the fact remains that there are 33 selected candidates impleaded as respondents. Meaning thereby they are before this court in their representative capacity and their defence has been considered. For the reasons mentioned above, it is held that the petitioners, who are having higher qualification in the same line than what has been prescribed in the Rules, are entitled to be offered appointment. However, selection of the candidates, who have earlier been appointed, does not deserve to be set aside. The needful shall be done within a period of two months from the date of receipt of copy of the order. It is made clear that the petitioners shall be entitled to all the benefits from the date they join service.

The writ petitions stand disposed of.