Vibha Rao And ORS v. Vicky Wilson And ORS

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] APPELLATE SIDE PRESENT:

THE HON'BLE JUSTICE ARINDAM MUKHEREJEE And THE HON'BLE JUSTICE BISWAROOP CHOWDHURY MAT 49 of 2024 IA NO.CAN/1/2024 VIBHA RAO AND OTHERS

VERSUS

VICKY WILSON AND OTHERS For the Appellants ::

Mr. Gopala Binnu Kumari, Adv.

:

Ms. Anjili Nag, Adv.

Mr. Shatadru Chakraborty, Adv.

Mr. Dibesh Dwivedi, Adv.

For the Respondent nos. 1&2 For the Respondent nos. 3 to 5 Judgment on :

26th September, 2025.

Arindam Mukherjee, J.

This appeal arising out of an order dated 12th August, 2024 passed in WPA 204 of 2023 by which the learned Single Judge directed the respondent authorities in the said writ petition to conduct Trade Test in respect of

respondent nos. 1 and 2 being the writ petitioners and, thereafter, make appropriate decisions in the matter in accordance with law. In the writ petition, the Andaman & Nicobar Administration (in short A&N Administration'), the Port Blair Municipal Council (in short 'PBMC'), the Secretary, PBMC were the respondent authorities respectively being respondent nos. 1, 2 and 3. Four individuals were impleaded respectively as respondent nos. 4, 5, 6 and 7. This appeal has been filed by respondent no. 5, 6, and 7 in the writ petition.

The respondent no. 4 in the writ petition has neither been joined as the appellants or respondents in the appeal.

Facts of the case.

1. By a Press Note dated 29th April, 2023, the A&N Administration, Secretariat invited applications from eligible candidates for participating in the common combined Matric Level Recruitment process to fill up the vacant Group-C Matric Level posts in various Departments under the A&N Administration/Board/Corporation. Under the said press note, one of the category of posts to be filled up in PBMC was Draughtsman, Grade-III. Advertisement relating to the post of Draughtsman Grade-III was in serial No. 53 of the advertisement. There were four vacancies in such post out of which one was under the Unreserved Category (U.R.), two were under Other Backward Classes (in short OBC) and one was

under Economically Weaker Sections (in short EWS). The essential education for qualification for such posts were as follows:- a. Matriculation/Secondary School Exam (Xth Standard) passed from a recognized Board/Institution;

b. 02 years certificate course including practical training of six months in Draughtsman ship (Civil) from recognized institute should qualify in a written/professional test to be conducted by the council or authorized recruitment agency.

2. The respondent nos. 1 and 2 claims to possess B.Tech Degree in Civil Engineering issued by DBRAIT college, Affiliated to Pondicherry University. The respondent no. 1 over and above the same qualification also has three years Diploma Course in Civil Engineering issued by Government Polytechnic Affiliated to Maharashtra, State Board of Technical Education and belongs to OBC category. The respondent no. 2 apart from having B.Tech degree in Civil Engineering, also holds certificate of National Craft Instructor Certificate for Draughtsman (Civil) issued by Ministry of Skill Development and Entrepreneurship, Director General of Training, Government of India and also belongs to OBC category.

3. The said respondents applied for the post of Draughtsman Grade-III through online mode and their application number was 48324 and 15712 respectively.

The said respondents were duly called for the written examination which was held on 9th July, 2023 by issuing Hall Tickets in their favour.

4. The name of petitioners was included respectively in serial No. 616 and 933 in the merit list published by A&N Administration in the Daily Telegrams in respect of the written examination. The selection committee thereafter shortlisted the candidates found to be qualified for the post of Draughtsman Grade-III and published a list wherein the respondents were respectively placed in serial No. 5 and 10 under the OBC Category. The respondent nos. 1 and 2 therefor claims to have been eligible to participate in the Trade Test scheduled to be held on 6th December, 2023 at DBRAIT College. The respondent nos. 1 and 2 went to the venue as mentioned in the press note for the Trade Test on 6th December, 2023 but, the recruitment authorities allegedly did not allow the petitioners to enter into the hall to appear in the Trade Test.

It is the case of the respondent nos. 1 and 2 that recruitment authorities verbally informed the said respondents that they were not qualified for the post of Draughtsman Grade III. The respondent no. 1 on 7th January, 2023 submitted his representation before the competent authority and requested them to conduct Trade Test for the respondents since they had qualified in the written examination for the post of Draughtsman Grade III. A subsequent letter dated 6th December, 2023 issued by the respondent no.

the essential qualification for the subject post. Subsequently, the respondents no. 1 and 2 instituted the aforesaid writ petition were in the order impugned was passed.

5. The respondent nos. 5, 6 and 7 in the writ petition as appellants have filed the instant appeal challenging the order dated 12th August, 2024 passed in WPA 204 of 2024.

Submission on behalf of the appellant:- A. The appellants have completed two years certificate course in draughtsman (Civil) from a recognized institute way back in the year 2011, 2015 and 2019 respectively. The appellant Nos. 1 and 2 belong to OBC category while appellant No. 3 belongs to General Category but is classified as EWS. The appellant Nos. 1 and 2 were working as multi-tasking staff under A&N Administration on having been appointed respectively on 29th May, 2019 and 3rd June, 2019 while the press note for filling up the vacancy in the post of Draughtsman Grade-III was published on 29th April, 2023. The appellants say that they fulfilled the requirement of several posts, the vacancy wherein was to be filled through the subject recruitment process under the advertisement dated 9th April, 2023. The appellants amongst other applied for the post of Draughtsman Grade III. The appellants were called on for written examination vided press note dated 24th June, 2023 by a paper publication dated 24th November, 2023 in terms of

'press note' dated 23rd November, 20236. The shortlisted candidates were directed to appear for verification of all original certificate/testimonials and documents, on and from 25th November, 2023 to 2nd December, 2023. The appellant say that according to the said press note for verification of document and testimonials, the candidates were to be shortlisted for Skill/Trade/Physical Endurance Test as per the vacancy notice dated 29th April, 2023. The appellants got their original documents and testimonials verified on 27th November, 2023 and 1st December, 2023.

Pursuant to such verification of documents and the testimonials by a paper publication dated 2nd December, 2023, the Trade Test for shortlisted candidates for the post of Draughtsman Grade III (Civil) in PBMC and tracer under Electricity Department were declared to be held on 6th and 7th December, 2023. The shortlisted candidates for the post of Draughtsman Grade III (Civil) were asked to appear on skill/trade test on 6th and 7th December, 2023. The appellants on being found to be eligible were allowed to participate in the skill/trade test. The appellants on having qualified the same, were given offer of appointment vide memorandum dated 9th February, 2024 which were issued to the appellants in the Rozgar Mela held by A&N Administration at Port Blair on 12th February, 2024.

No. 980 dated 8th March, 2024 by virtue of such the appointment, the appellants along with Kiran Yadav (respondent No. 4 in the writ petition) joined as Draughtsman Grade III (Civil) in PBMC. The said Kiran Yadav to have been left out in the appeal on not having been impleaded either as an appellant or as a respondent as stated hereinabove. The appellants say that they were served with a writ petition on 8th August, 2024 at about 4 p.m. which indicated that the writ petition would appear in the list on 9th August, 2024. The appellants also say that since they are not acquainted with the legal procedures, approached the higher officials in PBMC and informed the said respondent in the writ petition about being served with the same.

It is the case of the appellants that PBMC informed them that they would take care of the interest of the appellants. Subsequently, on 21st August, 2024, the appellants came to know that the said writ petition was disposed of on 12th August, 2024 by the order impugned. In terms of the order impugned the office of the Deputy Commissioner directed the respondent PBMC to conduct the trade test in respect of respondent Nos. 1 and 2 being the writ petitions and thereafter to take appropriate decision in accordance with law. The appellants also say that apart from the appellants, the interest of Kiran Yadav being respondent No. 4 in the writ petition would also be adversely effected. It is the further case of the appellants that the respondent Nos.

as contained in the advertisement and prescribed in the notified recruitment rules for the post of Draughtsman Grade III (Civil) under PBMC. The respondent Nos. 1 and 2 also according to the appellants did not challenge the reply dated 18th December, 2023 in the writ petition by which they were informal that they did not have the requisite qualification. It will be clear from the reply dated 18th December, 2023 given by the Municipal Council, Port Blair to the representation made by the respondent nos.1 and 2 that after the list of candidates who were shortlisted to appear in the trade test was forwarded to the A&N Administration with a direction to arrange verification of requisite certificates/testimonials for the particular post for which the candidates are attending the Skill/Trade Test.

On a scrutiny of the documents pursuant to verification before commencement of trade test, it was found that the appellants were not fulfilling the essential qualification as prescribed in the notified recruitment rules for the post of Draughtsman Grade III (Civil) in PBMC and as such the appellants were not allowed to appear in the skill/trade test for the post of Draughtsman Grade III (Civil). B. The appellants also say that the educational qualification of the respondent Nos. 1 and 2 (writ petitioners) cannot be held to be equivalent qualification to be essential qualification prescribed under the subject advertisement for the post of Draughtsman Grade III (Civil).

essential qualifications for a particular post and the same cannot be deviated from in the course of the recruitment process. It is the also the case of the appellants that even if a candidate holds a higher educational qualification, it is for the employer or the selection or the recruitment committee to decide whether the same is equivalent to the essential qualification prescribed for the subject post in the recruitment notice of the advertisement which is at page 82 of the stay application.

C. The requisite qualification for the post of Draughtsman Grade III (Civil) under the recruitment process on the basis whereof the order dated 24th January, 2006 was passed by the Deputy Commissioner Andaman District was altogether different and as such the same could not have been taken into account by the learned Single Judge to allow the respondent nos. 1 and 2 (writ petitioners) to appear at the trade test. The appellants also referred to annexure P-10 at page 141 of the stay petition in this context. The appellants have also referred to an order of the Central Administrative Tribunal, Calcutta Bench (Circuit at Port Blair) dated 22nd November, 2006 to contend that the issue of possessing qualification higher than one invited in the advertisement fell for consideration before the Tribunal wherein it was been held that the recruitment has to be governed by the "terms and conditions" mentioned in the offer letter. The appellants have also relied upon notification issued by the A&N Administration dated

21st May, 2012 wherein the essential qualification for the post of Draughtsman Grade III (Civil) has been specified . It is also the case of the appellant that no further amendment to such essential qualification has taken place despite issuance of the office memorandum dated 9th January, 2017 by the Government of India, Ministry of Personnel, PG and Pensions Department of Personnel & Training which is at page 134 of the stay application. The appellants have cited the following judgments in support of their contention:-

1. 2019(2) SCC 404 Zahoor Ahmad Rather & Ors. v. Imtiyaz Ahmad & Ors.

2. 2019(6) SCC 362 Maharashtra Public Service Commission v. Sandeep Shriram Warade & Ors

3. 2019(8) SCC 587 Bank of India & Ors. v. Aarya K. Babu & Anr.

4. 2023 SCC Online SC 1472 Ankita Thakur & Ors. v. H.P. Staff Selection Commission & Ors.

By relying upon the aforesaid judgments and the materials on record it is submitted that the learned Single Judge erred in law and in facts while passing the order impugned and as such the same should be set aside. Submission of respondent no. 1 and 2.

(i) It is submitted by respondent nos. 1 and 2 that admittedly they possess higher educational qualification than the essential

qualifications provided in the recruitment advertisement for the post of Draughtsman Grade III (Civil). Having a degree of Bachelor of Engineering with three years Diploma Course in (Civil) Engineering. In case of respondent no. 1 and Certificate of National Craft Instructor for Draughtsman (Civil) issued by the Ministry of Skill Development and Entrepreneurship, Director General of Training, Government of India in case of respondent no. 2 they have studied the syllabus of two years certificate course being the essential qualification for Draughtsman Grade III (Civil). The respondent nos. 1 and 2, therefor, are entitled to be considered having equivalent qualification to that of the essential qualification provided in the recruitment advertisement. The respondents have been wrongfully prevented from participating in the Trade/Skill Test.

The respondent nos. 1 and 2 also say that in 2006 there was a specific order from the A&N Administration holding that B.Tech (Civil) is not only a higher qualification but includes the syllabus of two years certificate course and as such persons having such qualification were allowed to be appointed and/or engaged in the post of Draughtsman Grade III (Civil). The A&N (Administration) as also PBMC have admitted the same as recorded in the order impugned.

(ii) After considering all these aspects, the learned Single Judge had allowed the respondent nos. 1 and 2 to participate in the

Trade/Skill Test and further to take a decision in accordance with law on the basis of the result of the said respondents in the Trade/Skill Test. It is also the case of the respondents no. 1 and 2 (writ petitioner) that neither of the appellants will be adversely effected even if the respondents no. 1 and 2 on being successful in the skill/trade test are found eligible to be appointed to the post of Draughtsman Grade III (Civil) as they on being appointed will be placed below the appellants in the gradation list. The respondent no. 1 and 2 also say that even if the four vacancies are filled up then also super-numeric posts can be created to accommodate respondent nos. 1 and 2 if they are found eligible for being appointed in the post of Draughtsman Grade III (Civil) in the PBMC.

The appellants in this context has relied upon a judgment of the Hon'ble Supreme Court reported in 2023 SCC Online 1308 (Union of India vs. Uzair Imran & Ors.) to contend that supernumeric posts can be created if no post is vacant as directed by the Hon'ble Supreme Court in the said case. The sum and substance of the submissions on behalf of the respondents no. 1 and 2 are that there is no express bar in relaxing the essential qualification for the post of Draughtsman Grade III (Civil) and the same has been done in the past. The respondents no.

and if the said respondents are found to be eligible after the trade/skill test supernumerary post are to be created to accommodate the respondent no. 1 and 2 as the same will not effect the rights of the applicants.` Discussion and Analysis.

I.

After hearing the parties and considering the materials on record, the following issues emerge which are to be answered to adjudicate the appeal:-

1. Whether the essential qualifications provided in the recruitment advertisement could be relaxed in the facts of the instant case?

2. Whether the qualifications possessed by respondent nos. 1 and 2 is to be treated as equivalent to the essential qualifications under the subject "advertisement" for the post of Draughtsman Grade III (Civil) in PBMC?

3. Does higher qualification than the qualification prescribed in the recruitment advertisement by a candidate will ipso facto mean that the said candidates possess the equivalent qualification to that of the essential qualifications prescribed for a particular post in a recruitment advertisement on the ground that syllabus of the essential qualification is included in the higher education qualification? The three issues are interlinked and are taken up for consideration at the same time.

II.

On an analysis of the judgments of the Hon'ble Supreme Court cited at the Bar, we find that a recruitment process has to be conducted strictly in accordance with the parameters provided in the recruitment advertisement. Any change to the essential qualification provided in the advertisement for a particular post after recruitment process has been set on motion by the publication of the advertisement in absence of any right to do so being reserved by the advertisement in reference to any rule which allows such alterations and without wide publicity will amount to change in rule of game which has been disallowed by the Hon'ble Supreme Court in several of its judgments. A more recent of which is reported in 2025 (2) SCC 1 Tej Prakash Pathak & Ors. v. High Court of Rajasthan & Ors.

III.

It is also a settled position of law that the essential qualifications are fixed by the recruitment committee and/or body of expert after application of mind and substantial time. The Courts should be loathe in interfering with such qualifications provided in the recruitment advertisement. It is also trite law that the authority and decision of the selection / recruitment committee is to be honoured if the same does not suffer from gross irregularities and/or ex facie apparent erroneous decision.

IV.

In the instant case, the advertisement specifically stipulated that candidates must hold prescribed essential qualifications. The essential qualifications provided for the post of Draughtsman Grade

III (Civil) is also in accordance with the schedule. In the notification dated 21st May, 2012 at page 82 of the stay application. Records also reveal that there has been no alteration to the essential qualifications for the said post of Draughtsman Grade III (Civil) subsequent thereto or even after the memorandum issued by the Ministry, Government of India on 9th January, 2017. There is as such, no irregularity noticed so far as the prescription of essential qualifications for the post of Draughtsman Grade III (Civil) in the recruitment advertisement. The general perception may be that the persons possessing higher qualification should possesses the lower qualification and be eligible for a post provided to be filled up with less qualification the same is permissible provided wide publicity in respect thereof is made to permit all candidates having the relaxed qualification will have a reasonable opportunity to take the benefit thereof proposition in all cases as held by the Hon'ble Supreme Court in different cases after detailed discussion.

V.

In Ankita Thakur (supra) the Hon'ble Supreme Court has clearly held that only if the extant rules provide with the power to relax the eligibility criteria and only if such power is reserved in the advertisement. As an example we may cite a person having MA degree in a particular subject have acquired the Honours qualification in that subject to get entry to the MA course or a Graduate engineer has the qualification of Diploma holder in the relevant branch. This is,

however, not a usual accepted. The subject advertisement in the instant did not reserve any such power to relax the eligibility criteria by referring to any rule and the applicable rule also does not provide such relaxation. It is also settled position of law as held in Ankita Thakur (supra) that the power to relax the eligibility criteria should be exercised only after wide publicity for the same so that persons who are like to benefit to such may get opportunity to apply and compete subject to relaxation as aforesaid is permissible. Otherwise the same will result in a change in the rule of game. The issue of relaxation of qualification in the context of an advertisement and the applicable rules has considered in details Jahoor Ahmed Rather (supra) and the view as stated hereinabove has been clearly stated.

The view expressed Jahoor Ahmed Rather (supra) is upheld in Ankita Thakur (supra). Neither the rules nor the advertisement in the instant case recognized any other or higher qualification meeting the eligibility criteria specified in the subject advertisement. Thus, relaxation cannot and could not have been exercised in the instant case by holding that the respondent Nos. 1 & 2 having higher qualifications than the essential qualifications specified for the post of Draughtsman Grade III (Civil) as provided in the subject advertisement meets the eligibility criteria specified therein.

Moreover, there is no evidence on record to demonstrate that the claim of the respondent nos. 1 and 2 to treat their qualification as

higher or equivalent to that specified in the subject advertisement. The mere assertion by the respondent no. 1 and 2 (writ petitioners) that while obtaining the Bachelor Degree in Engineering or the Diploma or the national trade test, the syllabus of the two years certificate course including practical training of six months in Draughtsman ship (Civil) as specified in the in the subject advertisement is covered in absence of any clear evidence cannot also be accepted. Furthermore, as observed in Ankita Thakur (supra) the employer cannot be forced to fill all the existing vacancies under the old rules.

Even if in a previous recruitment process, held in 2006 and by virtue of the order dated 24th January, 2006 the recruitment committee had permitted persons having higher qualification to participate, qualify and get appointment against the post wherein less qualification was specified in the advertisement will not in the instant case permit the Court to direct the employer to fill up the vacancy by candidates having higher qualification as the rules subsequent thereto has been amended as will appear from the notification dated 21st May, 2012. This condition cannot also be altered in view of the submission made by the respondent authorities as recorded in the order impugned that on previous occasion persons possessing similar qualification to that of the respondent nos.

1 and 2 were permitted to participate and get appointment in respect of the post of Draughtsman Grade III (Civil) for the reasons as aforesaid.

and in any event, the records reveal that the relaxation in 2006 was in respect of the post of Draughtsman and not Draughtsman Grade III (Civil) as contained in the subject advertisement. Allowing the respondent no. 1 and 2 to participate in the trade/skill test by holding that they possess the essential qualifications after the last date of the application will also deprive many others who had similar qualifications but did not apply in view of the stipulation in the advertisement which will also attract the provisions of change in rule of game.

VI.

Assuming without admitting that the rules or the advertisement permitted relaxation of the essential criteria then also, the positions being different in the advertisement of 2006 and that in the present case does not permit relaxation of the essential educational qualification in the facts of the instant case. It is also clear from the reply dated 8th December, 2023 given by the authorities to the representation made by the respondent no. 1 that the respondent nos. 1 and 2 were categorically informed that they did not possess the essential qualification as per the rules and the advertisement in question. The appellants are also correct that the respondent no. 1 and 2 (writ petitioners) have not challenged this finding of the Department in the writ petition. Thus issue no. (i), (ii) and (iii) are answered in the negative.

VII.

Since we are minded to allow the appeal the question of creating supernumerary post to accommodate the appellants does not arise and as such the ratio laid down in Uzair Imran (supra) has no application to the facts of the case though there is no dispute as to the proposition laid down therein.

VIII. In the aforesaid facts and circumstances, the order impugned dated 12th August, 2024 passed in WPA 204 of 2023 is set aside. The appeal is accordingly allowed. Nothing further remains to be adjudicated in the writ petition and as such the same also stands dismissed.

All connected applications including the application for considering additional evidence have been taken note of at the time of preparing the judgment and are also disposed of.

(Arindam Mukherjee, J.) I agree.

(Biswaroop Chowdhury, J.)