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Ahamad Thomman Thodi Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Case NumberOriginal Petition No. 800 of 1966
Judge
Reported in(1969)ILLJ215Ker
AppellantAhamad Thomman Thodi
RespondentState of Kerala and ors.
Cases ReferredAhmad Yar Khan v. Secretary of State
Excerpt:
- - 10, as well as the selection made by the public service commission, and to direct them to appoint the petitioner to the post of 'instructor in costume design and cutting. the candidates were made to understand that if they satisfied the conditions prescribed in appendix i they would be entitled to a seat. the court also added that it was a case of legal or equitable essoppel, which satisfied practically all the conditions embodied in section 115 of the evidence act. therefore, in our opinion, all the requirements of section 115 of the evidence act are satisfied in those cases and consequently, the plea of estoppel will be available against the university. 10. it is well-settled on eminent authorities that the principle of equitable estoppel would operate against governments and..........the procedure etc., for selection of candidates for admission. in accordance with those rules, applications were invited; but the last date fixed for receiving applications were extended from time to time. at that time, some writ petitions were pending in the high court; and before the applications for admission came up for consideration, the high court pronounced judgment, declaring that the rules were defective in certain respects. in the light of the above judgment, the government changed the rules of selection not only to the extent they were found defective by the high court, but entirely. three of the applicants, who did not get selection as a result of the above amendment of the rules, moved the high court to quash the amendment as illegal and unconstitutional, and.....
Judgment:

M.U. Isaac, J.

1. In the Kerala Gazette, dated 25 February 1964, a notification, dated 20 February 1964, was published by the Public Service Commission, Kerala, who is respondent 2 in this case, inviting applications from qualified candidates for selection for recruitment for a few appointments in the Public Service. Item X in this notification related to appointment of ' Instructor in costume design and cutting.' The qualifications specified were the following :

Qualifications-

I. Minimum general educational qualification of S.S.L.C. standard.

II. (a) Diploma in Dress-making, Designing and Tailoring i'rom the Women's Institute of Domestic Arts and Science, London, or

(b) Group Certificate in Tailoring, K.G.T.E. or M.G.T.E. with three years' experience-practical or teaching-in Government or similar organizations or firms of repute.

Desirable.-Experience as instructor in costume designing and cutting.

Age-limit,-Not above 28 years on 1 July 1964, relaxable by three years in the case of backward classes and five years in the case of scheduled castes and scheduled tribes.

Note,-Overaged candidates also may apply for the post, but their cases will be considered for selection only in the absence of qualified candidates within the prescribed age-limit.

2. The probable number of vacancies was mentioned as 'one.' It was also stated that vaoancies that may arise within a reasonable period normally not exceeding one year may be filled up from the selection list prepared pursuant to the above notification. The petitioner has far more than the requisite qualifications; but on the relevant date he was 40 years old. He made an application for selection within the date prescribed for the said purpose. Some of the applicants including the petitioner were subjected to a practical test on 13 July 1966; and six of them were interviewed and selected by respondent 2. The list of the persons thus selected was published along with the list of candidates advised for recruitment for other appointments in the Kerala Gazette, dated 9 September 1965, Part I-B, p. 48. The petitioner's name appears as No. 5 in the said list; and Nos. 1 to 4 in that list are respondents 4 to 7, and No. 6 is respondent 8 in this original petition.

3. Pursuant to the notification, dated 20 February 1964, the Public Service Commission received sixteen applications for selection to the post of instructor in costume design and cutting. The qualification possessed by some of the applicants was Diploma in ' Costume Design and Dressmaking ' issued by the State Department of Technical Education. The Commission wrote to respondent3, the Director of Technical Education, to ascertain whether the above diploma could be treated as equivalent to|the Diploma in 'Dress-making,Design-ing and Tailoring from the Women's Institute of Domestic Arts and Science, London.' Respondent 3 replied saying that the Kerala diploma was more suited for the post than the London diploma. He also referred the matter to the Government; and Government issued an order, Ex. P. 10, dated 1 July 1965, directing that the Kerala diploma is to be recognized as a higher qualification than the K.G.T.E. certificate in Tailoring, Embroidery, Needle-work, and Dress-making for purposes of appointment to posts in the Public Services in the State. Admittedly, respondents 4 to 8 have not got the London diploma, but only the Kerala diploma; and they were selected for appointment on the basis of the said qualification.

4. The petitioner contends first that, having published a notification inviting applications for selection from candidates with specified qualifications, neither the Government nor the Public Service Commission is entitled to vary the said qualifications, and appoint candidates, who do not possess the qualifications originally specified. Secondly, he contends that, even assuming that the Government are entitled to alter the originally specified qualifications, respondents 4 to 8 have not got the altered qualifications also. The petitioner, therefore, claims that he is entitled to the appointment, as he was the only candidate having the requisite qualifications. He has filed this original petition to quash the Government Order, Ex. P. 10, as well as the selection made by the Public Service Commission, and to direct them to appoint the petitioner to the post of ' Instructor in costume design and cutting.' I shall now proceed to consider the two contentions raised by the petitioner.

5. The petitioner's learned counsel, Sri K.S. Rajamani, submitted in support of the first contention, that having invited applications from candidates with specified qualifications for selection for appointment, it was not open for the Government or the Public Service Commission not to consider applications of the candidates made in compliance with the notification inviting such applications or to alter the qualifications originaliy specified and to admit other applicants for consideration on the basis of the altered qualifications. He submitted that persons, who acted on the basis of such a notification and incurred expenses and trouble on the faith that the Public Service Commission would act in accordance with the said notification, acquired a right to be treated accordingly; and the Government and the Public ervice Commission would be prevented from acting otherwise under the principle of equitable estoppel.

6. In support of his above contention he first referred me to a decision of the Andhra Pradesh High Court in Sundara Rami Redai v. Principal, Guntur Medical College and Ors. (1958) 1 An.W.R. 56. That was a case relating to admission to the Government medical colleges. The Government had made rules prescribing the minimum marks, the order of preference, the procedure etc., for selection of candidates for admission. In accordance with those rules, applications were invited; but the last date fixed for receiving applications were extended from time to time. At that time, some writ petitions were pending in the High Court; and before the applications for admission came up for consideration, the High Court pronounced judgment, declaring that the rules were defective in certain respects. In the light of the above judgment, the Government changed the rules of selection not only to the extent they were found defective by the High Court, but entirely. Three of the applicants, who did not get selection as a result of the above amendment of the rules, moved the High Court to quash the amendment as illegal and unconstitutional, and direct the authorities to consider the applications on the basis of the unamended rules and admit the petitioners to the medical college. One of the contentions raised against the validity of the amendment was that the Government were not entitled to replace to the detriment or prejudice of the candidates the rules on the basis of which applications for admissions were called for. This contention was accepted by the High Court; and it said :

While we are of the view that the power of the Government to amend the rules is wide enough, certainly it cannot be exercised in a manner as to lead to results grossly unjust and palpably unreasonable even defeating accrued rights. Nor at any rate can it escape the operation of the doctrine of legal or equitable estoppel. The candidates were made to understand that if they satisfied the conditions prescribed in appendix I they would be entitled to a seat. It is no doubt true that it was open to the Government to amend the rule at any stage till the last date of receipt of applications though this last date might have been the date finally adjourned to a date other than originally fixed. But when all the applications which were due up to the final date of receipt of applications were received and the applicants were assured that the decision of their cases will rest on the rules framed and in force till then, certainly it was not open to the Government to vary the said rules notwithstanding. that such rules were not inconsistent with any of the provisions of the Constitution or law, so as to defeat the very rights of the parties accrued by reason to offer and acceptance establishing more or less quasi-contractual obligations.

7. Speaking with the greatest respect, I am unable to accept the reasoning contained in the above decision of the Andhra Pradesh High Court. On the facts of the case, it appears that all that the Government did was to call for applications from candidates possessing certain qualifications for being considered for admission to the medical colleges. The submission of an application in accordance with the rules does not create a right in the applicant, however eminently qualified he may be, for admission into the college, nor does it create a contract or establish any quasi-contractual obligation between the applicant and the Government for admitting the applicant to the college. When their lordships say, that, while it is permissible for the Government to extend the final date fixed for receiving applications, and it is also permissible for them to amend the rules at any stage till the last date for receipt of applications, it would appear that, instead of amending the rules after the last date fixed for receipt of applications, if the Government extended the said date and then amended the rules within the said date, it would have been all right. I am unable to follow this reasoning-; and I decline to follow the above decision.

8. Another decision referred to by the petitioner's learned counsel is that of the Madras High Court in Registrar, University of Madras v. Sundara Shetti and Ors. A.I.R. 1956 Mad. 309. In that case, the petitioner was issued a certificate of having passed the S.S.L.C. examination; and on the basis of it, he got admission to the intermediate class in a college. He passed the first year examination and while he was studying in the senior intermediate class, be got a notice from the Principal of the college stating that the Board of Secondary Education had ordered that the petitioner was not eligible for university course of study, and that his name was, therefore, struck off from the rolls of the college with immediate effect. Thereupon, the petitioner filed a writ petition to quash the orders of the Board of Secondary Education and the Principal, and to direct the authorities to permit the petitioner to continue his study in the college. High Court accepted the petitioner's contention that. on the strength of a wrong endorsement made by the Secretary, Board of Secondary Education, acting presumably on behalf of the university, the petitioner had expanded time and money in pursuing a course of study in the college for nearly two years and that he should not then be told that there was a mistake, and all the two years of the study should go waste. The Court also added that it was a case of legal or equitable essoppel, which satisfied practically all the conditions embodied in Section 115 of the Evidence Act.

9. The learned counsel also cited a very recent decision of the Delhi High Court in Delhi University v. Ashok Kumar : AIR1968Delhi131 . This was a case very similar to the Madras case. Three students who were admitted into the university on the basis of certificates issued to them as having passed the S.S.L.C. examinations were removed from the rolls of the college, after they had prosecuted their studies for about two years on the ground that they were not eligible for college admission. The High Court said :

It cannot be disputed that the students acted to their detriment when they continued their studies in the colleges in the belief that their admissions had been approved by the university. Their continuance in college after paying the requisite fees constituted their acting to the detriment on the strength by the belief that their admissions had been approved by the university. Therefore, in our opinion, all the requirements of Section 115 of the Evidence Act are satisfied in those cases and consequently, the plea of estoppel will be available against the University.

It was attempted to be argued by the learned Government Pleader that there can be no estoppel against a statutory bcdy acting in accordance with the rules ; that, if it acted wrongly or in violation of the rules, it is entitled to review its actions and rectify the mistakes ; and that the above decisions of the High Courts of Madras and De.1hi do not lay down the correct law. It is unnecessary to examine the above argument in this case.

10. It is well-settled on eminent authorities that the principle of equitable estoppel would operate against Governments and other statutory bodies. In Union of India v. Anglo-Afghan Agencies A.I.R. 1868 S.C. 718, the Supreme Court said :

Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, not claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen.

In Municipal Corporation of the City of Bombay v. Secretary of State L.L.R. (1904) 29 Bom. 58, Jenkins, C.J., stated the principle as follows :

The doctrine involved in this phase of the case is often treated as one of estoppel but I doubt whether this is correct, though it may be a convenient name to apply.

It differs essentially from the doctrine embodied in Section 115 of the Evidence Act, which is not a rule of equity but is a rule of evidence that was formulated and applied in Courts of law; while the doctrine with which I am now dealing, takes its origin from the jurisdiction assumed by . Courts of Equity to intervene in the case of or to prevent fraud.

The same principle is laid down and applied against the Government of India by the Privy Council in Ahmad Yar Khan v. Secretary of State (1901) 28 Ind. Appeals 211.

11. The notification issued by the Public Service Commission in this case was only an invitation to candidates possessing the specified qualifications to apply for selection for recruitment to certain posts. It did not hold out any promise that the selection would be made, or if it was made, the selected candidates would be appointed. The candidates do not get any manner of right by applying for selection, and perhaps, even after the selection. They would become entitled to the post, only if they are appointed by the Government pursuant to the selection. Section 115 of the Evidence Act, or the principle underlying that section or the principle of equitable estoppel has, therefore, no application to the case before me. My attention was not invited to any provision of a statute or statutory rules, which compels the Public Service Commission to make a selection in accordance with the terms and conditions of a notification which it publishes inviting applications from candidates. In the absence of any obligations, statutory or otherwise, it is open for the Government to alter the qualifications already specified ; and for the Public Service Commission to select candidates on the basis of the altered qualifications. The petitioner's contention to the contrary cannot, therefore, be sustained, I may, however, observe that it is highly necessary that, in order to command public confidence both the Government and the Public Service Commission must act, as they professed to act by public notifications, unless there are valid reasons to change the original basis of selection and act in a different manner.

12. I shall now consider the petitioner's next contention that he is entitled to the appointment, as respondents 4 to 8, who were selected along with him, have not got even the qualifications subsequently specified by the Government. The learned Government Pleader made an effort to show that it was not so. The only alteration made by the Government in respect of the qualifications was to direct that the Kerala diploma should be recognized as a higher qualification than the K.G.T.E. Certificate in Tailoring, Embroidery, Needlework and Dressmaking, for the purpose of the appointment. Three years' experience, practical or teaching, in Government or similar organizations or firms of repute was, according to the qualifications originally specified, necessary for the holder of the K.G.T.E. Certificate. This condition was not dispensed with in the case of a holder of the Kerala diploma. There is no case that respondents 4 to 8 have the above experience. The petitioner is, therefore, right in his submission that these candidates have not got even the qualifications subsequently fixed by the Government. It means that the Public Service Commission did not make the selection either on the basis of the qualifications originally fixed, or subsequently altered. But, for reasons already stated, a selection made by the Public Service Commission is not justiciable under law, except perhaps under Article 16 of the Constitution. The learned counsel for the petitioner made an attempt to make out that the selection of respondents 4 to 8 was violative of Article 16(1). All that the Public Service Commission did, even according to the petitioner, was that it considered not only candidates possessing the specified qualifications, but also candidates having a different qualification. That was done apparently for the reason that the said qualification was considered good enough for the post. This does not involve any discrimination or denial of equality of opportunity in matters relating to appointment. The petitioner was also considered along with others, and he has been included in the select list. His complaint is only that he would have got priority, if the others were not considered. Such a complaint cannot be sustained under Article 16(1) of the Constitution.

13. In the result, I dismiss this original petition. There will be no order as to coats.


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