IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3675 of 2009 1. Mahesh Kumar, S/o. Kamalesh Kumar, R/o. Janata Colony (Bairagi), Opposite Devi Asthan, P.S. Delha, Gaya, District- Gaya. 2. Kumar Vishal, S/o. Manmohan Kumar Singh, R/o. Kharhari Kothi, Lakhi Bagh, Manpur, P.S. Manpur, District- Gaya. Versus 1. The State Of Bihar, 2. The Principle Secretary, Rural Development Department, Govt. of Bihar, Patna. 3. The Under Secretary, Rural Development Department, Govt. of Bihar, Patna. 4. The Joint Development Commissioner, Rural Development Department, Govt. of Bihar, Patna. 5. The Deputy Secretary, Rural Development Department, Govt. of Bihar, Patna. 6. The Convener, written tests for contract appointment, District Rural Development Agencies, Rural Development Department, Govt. of Bihar, Patna. Counsel for the Petitioners: Mr. Pramod Mishra, Advocate. Dr. Lilawati Kumari, Advocate. Counsel for the State: Mr. Pushkar Narain Shahi, AAG-XIV, Mr. Mritunjay Kumar, A.C. to A.A.G.-XIV. ---------------------------------- 04. 27.09.2011 Heard learned counsels for the petitioners and the State. Sri Anil Kumar, Addl. Secretary, Rural Development Department and Sri Animesh Pandey, Project officer Rural Development Department are also present in person and have assisted the Court. The respondents published an advertisement inviting applications inter alia for the post of Programme Officer. The minimum educational qualification prescribed was M.B.A. or Post Graduate in Rural Management from any recognized University. The total numbers of vacancies 2 specified for the post were 534. The Court is not concerned with the other posts advertised as it is not the subject matter of the controversy. The issue raised in the present application for consideration is whether the respondents could have deviated from the educational eligibility qualification specified in the advertisement by accepting the applications of persons with equivalent qualifications also based on a subsequent policy decision dated 20.02.2008 confirmed by a government resolution dated 25.08.2010. Learned counsel for the petitioners submits that once the advertisement was published and the selection process commenced, it was not permissible for the respondents to deviate from the same by varying an essential qualification with regard to eligibility to include persons originally not eligible. Learned counsel for the State urged that modification of the conditions for eligibility by including an equivalent qualification had to be considered on account of a host of factors in the larger interest, not necessarily of the candidates alone but the requirements of the State itself in the Rural Works Department keeping in mind the development purpose for which the posts were advertised. 3 Even if the candidates are considered in accordance with the published 534 vacancies and the merit list is redrawn to include only those with the specified qualification, excluding those with equivalent qualification, still the petitioners would not come in the category of successful candidates. The Court therefore on the facts of the present case may not interfere with the selections made. There is no challenge by the petitioner to the additional appointments. The conditions of eligibility for recruitment are for the employer to decide based on its needs. Therefore whether an equivalent qualification is acceptable or not is again for the employer to decide and not for the Court to substitute its views. There can be no two opinions that the educational qualification prescribed for a post is an essential qualification. No essential condition of an advertisement can be varied. Much less after the advertisement is published and the selection process commenced by holding written examination as presently done. The law stands well settled by now that any variation in the conditions of eligibility fixed under the advertisement after commencement of the selection process is impermissible. The Court does not consider it necessary to burden the present order with 4 precedents. To that extent the writ application may have had to be allowed. But the Court while exercising its discretionary writ jurisdiction may decline to interfere in the given facts of the case notwithstanding the fact that invalidity of an action may be apparent. Even while the Court does not approve of the actions of the respondents, yet for reasons to be discussed hereinafter the Court is not persuaded to interfere. The Addl. Secretary and the Project officer, who are present in Court in person, have assisted the Court and stated in no uncertain terms that even if a merit list is hypothetically drawn up of 534 persons under the eligibility prescribed in the advertisement, excluding those who may have been included on the basis of equivalent qualifications, yet the petitioner shall not figure within the 534 persons as it would end with candidates having far higher marks than them. No challenge has been raised by any such candidate who may have had a better claim. Prior to the writ petition and during the pendency of the writ petition, candidates with equivalent qualifications to the extent of 152 have been appointed. No useful purpose is going to be served by interference at this stage, which 5 shall only further delay and hamper the development works of the government when ultimately no benefit can flow to the petitioners by such interference. Had the petitioners figured in this hypothetical list of 534 persons, issues for consideration shall have entirely different when the writ application may have had to be allowed. The Supreme Court in (2005) 6 Supreme Court Cases 454 (ONGC LTD. Versus SENDHABHAI VASTRAM PATEL AND OTHERS) at paragraph-23 has held as follows: “It is now well settled that the High Courts and the Supreme Court while exercising their equity jurisdiction under Articles 226 and 32 of the Constitution as also Article 136 thereof may not exercise the same in appropriate cases. While exercising such jurisdiction, the superior courts in India may not strike down even a wrong order only because it would be lawful to do so. A discretionary relief may be refused to be extended to the appellant in a given case although the Court may find the same to be justified in law.” The writ application is dismissed. Mkr. (Navin Sinha, J.)