Holding

An appointment that ignores the qualification stipulated in the advertisement, unless the advertisement expressly permits relaxation, is a fraud on the public and is illegal.

Summary

The State Government advertised for Grade‑I and Grade‑II teacher posts requiring a second‑class M.A. degree. M. Tripura Sundari Devi, who held only a third‑class M.A., was nevertheless appointed as a Post Graduate Teacher. When her original certificates were examined, the deficiency was discovered and she was denied entry into service. She approached the Andhra Pradesh Administrative Tribunal, which ordered that she be allowed to join and be paid salary from the date of reporting. The Supreme Court held that appointing a candidate in disregard of the qualification specified in the advertisement, without a clear statement that the qualification is relaxable, constitutes a fraud on the public and cannot be upheld. While setting aside the Tribunal's order, the Court directed that the respondent, having subsequently obtained the requisite second‑class M.A., be appointed from the beginning of the 1990‑91 academic year, but without any back wages. The appeal was therefore allowed in part.

Issues considered

Whether an appointment made in disregard of the qualification specified in a government advertisement, without a clear relaxability clause, is illegal.
Whether such an appointment amounts to a fraud on the public and affects persons who did not apply due to the qualification requirement.
Whether the court can set aside an administrative tribunal's order and direct a fresh appointment despite the earlier error.

Legislation cited

Constitution of Indias. Article 16

Subjects

public service recruitmentqualification requirementadvertisementfraud on publicadministrative tribunalappointmentrelaxation of qualificationsConstitution of IndiaArticle 16teacher recruitment

Judgment

DISTRICT COLLECTOR AND CHAIRM.t\N VIZIANAGARAM
(SOCIAL WELFARE'. RESIDENTIAL SCHOOL SOCIETY)
VIZIANAGARAM AND ANrR.
v.
M. TRIPURA SUNDARI DEVI

APRIL 20, 1990 B

[KULDIP SINGH AND P.B. SAWANT, JJ.]

Constitution of India 1950: Article 16-Public services-Recruit-
ment to-Qualifications mentioned in advertisement-Not relaxable
unless clearly specified in the advertisement.
c
Civil Services: A.P. Government-Appointment of Grade I and
Grade II Teachers-Appointment made in disregard of qualifications
--!"' mentioned in advertisement-Illegal.

Pursuant to a newspaper advertisement by the State Government D
calling for applications for Grade-I and Grade-II teacher posts (Post
Graduate Teacher and Trained Graduate Teachers) the respondent in
the appeal applied for the same.

The qualification prescribed in .the advertisement was a second
class degree in M.A. However, the respondent who held a third class E
degree in M.A. was selected, and an order was issued appointing her as
a Post Graduate Teacher in Hindi, subject to the production of original
certificates, and compliance with the other necessary formalities. When
the respondent approached the authorities with her certificates, it was
noticed that she was not qualified for the post, and was, therefore, not
allowed to join service. F
-~
The respondent approached the State Administrative Tribunal
for relief, which held that the appellants had· issued the order of
appointment knowing fully well that she was not qnalified, and that she
was selected for appointment because there was no other candidate
available with better marks, and passed an Order directing the appel- G
!ants to allow the respondent to join duty and pay her salary from the
date she reported for duty.

->----
I
The appellants appealed to this Court. Allowing the appeal,

HELD: 1. When an advertisement mentions a partirular qnalifi- H

559
560 SUPREME COURT REPORTS [1990] 2 S.C.R.

cation and an appointment is made in disregard of the same, it is not a
A matter only between the appointing authority and the appointee con-
cerned. The aggrieved are all those who bad similar or even better - ---·-
qualifications than the apj>Ointee or appointees but who had not
applied for the post because they did not possess the qualifications
mentioned in the advertisement. [S62Fi -
B
2. It -amount to a fraud on the public to appoint persons with
inferior qualifications unless it is clearly stated in the advertisement
that the qualifications are relaxable. [562G]

3. No Court should be a party to the perpetuation of the fraudu-
lent practice. The State Administrative Tribunal lost sight of this fact in
C the instant case. [562G]

4. It is common knowledge that sometimes either by mistake or
otherwise the notes put up before the Selection Committee contain
erroneous data prepared by the office and sometimes the Selection
D Committee proceeds on the basis that all those who appear before it, are
otherwise qualified. However, the second sta~e at which the documents
are scrutinised is when the higher authorities go through them at the
time the candidate concerned approaches them for resuming duties
alongwith the original certificates. It is at that stage that the mistake in
the instant case was discovered, and the respondent was not permitted .,,...,.
E to resume her duties. There is nothing wrong in such action. [562B-C)

[The Court felt it would be unjust to deprive the respondent of the
post at this stage, as she had subsequently acquired another degree in
M.A. with second class and thereby qualified herself to be appointed,
that she may be overaged for the post and many who were under-
F 11ualified were appointed to the post earlier, and directed that she be
appointed in the post from the beginning of the academic year 1990-
1991.] [563B-C)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2559
of 1988
G
From the Judgment and Order dated 31.8.1987 of A.P.
Administrative Tribunal, Hyderabad in R.P. No. 3931of1987.

K. Madhva Reddy and G. Prabhakar for the Appellants.

H Y.P. Rao for the Respondent.
DISTI. COLLECTOR v. M. TRIPURA (SAWANT, J.] 561

The Judgment of the Court was delivered by
A

--------- SAW ANT, J. The admitted facts in the present case are that the
respondent applied for Grade-I and Grade-II teacher posts (Post
Graduate Teacher and Trained Graduate Teacher posts respectively)
in September, 1985 pursuant to a newspaper's advertisement calling
for application.s for the said posts. Admittedly, the qualification pre- B
scribed in the advertisement for the said. posts was a second class
degree in M.A., and the respondent held a third class degree in M.A.
However, it appears that on December 27, 1985, an order was issued
wrongly by the first appellant appointing her as a Post Graduate
Teacher in Hindi. The order stated that her appointment was subject
to the production of original certificates and to the compliance with c
the other necessary formalities. When pursuant to the order, the
respondent approached the authorities with the certificates, it was
noticed that the respondent was not qualified for the post. She was,
therefore, not allowed to join the service, and was sent back.

2. The respondent thereafter approached the Andhra Pradesh D
Administrative Tribunal at Hyderabad repr~senting to the Tribunal
that pursuant to the order of December 27, 1985 she had joined her
duties on Ja~uary 2, 1986 and that she should be allowed to continue in
service with all "the benefits from that day. The Tribunal passed the
' impugned order directing the appellants to allow her to join the duties
?'· and to pay to her salary from the date she reported for her duties in E
compliance with the order of December 27, 1985. The Tribunal also
awarded costs against the appellants.

3. We are of the view that the Tribunal is clearly in error. The
reasons given by the Tribunal in support of its order are, firstly, that
the appellnts had issued the order of appointment knowing fully well F
that she was not qualified, and secondly, that she was selected for the
appointment because there was no other candidate available with bet-
ter marks.

4. It has been brought to our notice during the course of the
arguments that the original selection was. made by mistake on the G
presumption that the respondent had satisfied the qualification-
requirements as stated in the advertisement, without scrutinising the
certificates copies of which were sent with her application. The Selec-
tion Committee presumed that all those who had applied in response
to the advertisement must have had the requisite qualifications needed
for the posts. However, the order appointing the respondent had made H
562 SUPREME COURT REPORTS [1990] 2 S.C.R.

it clear that the respondent should come along with the original certifi-
A cates. When the respondent approached the appellants with the origi-
nals of the certificates which were scrutinised, it was found that in fact
she was short of the qualifications. It is in these circumstances, that she
- ------
was not allowed to join the service. It cannot, therefore, be said that
the appellants had selected the respondent with the knowledge that
B she was under-qualified. According to us, there is a good deal of force
in this contention. It is common knowledge that sometimes either by
mistake or otherwise the notes put up before the Selection Committee
contain erroneous data prepared by the office, and sometimes the
Selection Committee proceeds on the basis that all those who appear
before it, are otherwise qualified. However, the second stage at which
the documents are scrutinised is when the higher authorities go
c through them at the time the candidate concerned approaches them
for resuming duties along with the original certificates. It is at that
stage that the mistake was discovered in the present case and the
respondent was not permitted to resume her duties. We see nothing
wrong in this action.
D
5. The observation of the Tribunal that there were no other
candidates available with better marks is, in the circumstances, a half-
truth because assuming that she had better mark among those who had
applied, .it seems that no one with second class had applied or the
applications only of the third-class candidates were considered. If so,
E they were the applications of those third-class candidates who had
applied and not of all those who would have applied had the advertise-
ment given an indication that those with a third-class degree could also
apply.

6. It must further be realised by all concerned that when an
F advertisement mentions a particular qualification and an appointment
is made in disregard of 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 qualifications than the
appointee or appointees but who had applied for the post because they
did not possess the qualifications mentioned in the advertisement. It
G amounts to a fraud on public to appoint persons with inferior qualifica-
tions in such circumstances unless it is clearly stated that the qualifica-
tions are relaxable. No court should be a party to the perpetuation of
the fraudulent practice. We are afraid that the Tribunal lost sight of -.-"--
this fact.

H 7. We are, however, informed that the respondent subsequently
D!SIT. COLLECTOR v. M. TRIPURA [SAWANT, J.J 563

acquired another degree in M.A. with second class and has qualified A,
herself to be appointed to the said post. Whatever the merits.of the
decision given by the Tribunal, we cannot forget that she was entitled
to rely upon it till this time where she had succeeded. She was not
allowed to join service on January 2, 1986 and thereafter she had
approached the_Tribunal in January 1987. The decision of the Tribunal
B
was of 31st August, 1987 and thereafter the present Civil Appeal was
pending in this Court from December 1987 till this day. Considering
the fact that she is compelled to serve, that she has acquired the requi·
site qualification, that today she may be overaged for the post and the
further fact that many who were underqualified were appointed to the
post earlier, we feel that it will be unjust to deprive her of the post at
this stage. we, therefore, set aside the impugned order oftlle Tribmml c
but allow the appeal partially and direct that the respondent should be
appointed in the post from the beginning of the ensuing academic year
1990-91. Since Shri Madhav Reddy contended that there is no vac'l'lt
post at present, we further direct that, if necessary, a post be created
to accommodate her. She will, however, not be entitled to any benefits
including back wages till her appointmenL D

The parties will bear their own costs.

N.V.K. Appeal allowed .

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