- (1.) This appeal has been placed before us on reference made by a Division Bench of this Court by order dated 29th July, 2008 for consideration of the following question: "When a particular qualification is laid down in an advertisement, specially creating a distinct class of candidates that would be eligible, can the candidates possessing qualifications higher than those advertised be considered and appointed on the post?"
(2.) The facts giving rise to this appeal, broadly stated, are as under: THE Children Development Project Officer, Jhalda No. 1 issued an advertisement dated 6th December, 1996 inviting applications for the posts of Anganwadi Worker stating that in the age group of 18 to 45 years "who have passed in Matriculation or equivalent examination with Bengali are eligible to apply. Graduate women are not meant for the said post." THE advertisement also indicated as under: 'THE candidates will belong to the concerned village panchayat of that centre for which the candidates will be recruited....................... Candidates from the neighbouring villages will be considered for the posts of Anganwadi Workers in the event proper candidates are not available from the concerned villages........................." The appellants herein, three in number, as well as another person (respondent No.6 in the writ petition) and the writ petitioners amongst others applied in response to the advertisement. After written test and interview, the respondent authorities prepared a select list and appointed the appellants and others on the posts of Anganwadi Worker in the year 1998. The writ petitioners, two in number, who were unsuccessful candidates at the said selection, filed the writ petition in the year 1999 challenging the selection and appointment of respondent Nos. 6 to 9 in the writ petition on the ground that they were graduates and, therefore, barred from applying for the post of Anganwadi Worker. The private respondents did not controvert the fact that they were graduates at the time of applying for the post but contended that graduates were not ineligible to apply for the post. It was also contended by the private respondents that by memorandum dated 9th November, 1983 issued by the State Government graduate Anganwadi workers were eligible to be appointed as supervisors and, therefore, by necessary implication graduates were not debarred from applying for the post of Anganwadi worker which was the feeder cadre for supervisors. After hearing the learned counsel for the parties, the learned single Judge held that when the advertisement specifically mentioned particular qualification of matriculation (Madhyamik or equivalent qualification) and also provided that graduate candidates were not to apply, the private respondents being graduates they were not entitled to be appointed on the posts of Anganwadi worker. The learned single judge further took the view that when the advertisement indicated that since the graduate women were not to apply, other graduate women did not apply and that if the private respondents were eligible, the other graduate women would also have been eligible, but they were denied their right of being considered for appointment and, therefore, there was violation of Articles 14 and 16 of the Constitution. The learned single Judge accordingly allowed the writ petition and quashed and set aside the appointment given to the private respondents, four in number, out of whom three have filed the present appeal.
(3.) During pendency of the appeal, the Division Bench had granted stay against the implementation of the order of the learned single Judge and that is how all the four private respondents including the three appellants have continued in service. When the appeal reached hearing, two judgments were brought to the notice of the Division Bench. In District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Anr. v. M. Tripura Sundari Devi, 1990 3 SCC 655, the Apex Court held that when the advertisement mentions a particular qualification and an appointment is made in disregard to the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualification than the appointee or appointees but who had not applied for the post because they did not possess the qualification mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications and that in absence of a clause in the advertisement that qualifications are relaxable, no Court should be a party to the perpetuation of the fraudulent practice.;