Allahabad High Court
State Of U.P. Thru Addl.Chief Secy. Home ... vs Aakash Verma And 332 Others on 27 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2559
Bench: Ritu Raj Awasthi, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on 04.08.2021 Delivered on 27.08.2021 Case :- SPECIAL APPEAL DEFECTIVE No. - 244 of 2021 Appellant :- State of U.P. Thru Addl.Chief Secy. Home Lucknow And Anr. Respondent :- Aakash Verma and 332 Others Counsel for Appellant :- C.S.C. Counsel for Respondent :- Lalta Prasad Misra connected with Case :- SPECIAL APPEAL DEFECTIVE No. - 243 of 2021 Appellant :- State of U.P. Thru. Addl.Chief Secy. Home Lko.& Anr. Respondent :- Santosh Kumar & Ors. Counsel for Appellant :- C.S.C. Counsel for Respondent :- Manjeet Singh Case :- SPECIAL APPEAL DEFECTIVE No. - 245 of 2021 Appellant :- State of U.P. Thru. Prin. Secy. Home Lko.& Ors. Respondent :- Ram Pratap Verma & Ors. Counsel for Appellant :- C.S.C. Counsel for Respondent :- Ishita Yadu Case :- SPECIAL APPEAL DEFECTIVE No. - 246 of 2021 Appellant :- State of U.P. Thru Addl.Chief Secy. Home Lucknow And Anr. Respondent :- Anjali Singh and 18 Ors. Counsel for Appellant :- C.S.C. Counsel for Respondent :- Lalta Prasad Misra Hon'ble Ritu Raj Awasthi,J.
Hon'ble Dinesh Kumar Singh,J.
Order on C.M. Application Nos.84026 of 2021, 84021 of 2021, 84029 of 2021 and 84034 of 2021
1. Heard.
2. These special appeals have been filed with a reported delay of 87 days as on the date of filing. Appeals are accompanied with applications for condonation of delay. Cause shown in the affidavits filed in support of the applications for condonation of delay is sufficient. Even otherwise, considering the Supreme Court's order dated 27.04.2021, passed in Misc. Application No.665 of 2021 in SMW (C) No.3 of 2020; Cognizance for Extension of Limitation Vs. XXXX, we are satisfied that the delay in filing the appeals is liable to be condoned.
Accordingly, the applications for condonation of delay are allowed and the delay in filing the appeals is condoned.
3. Order on Memo of Special Appeal Batch of these four special appeals (Intra-court appeals) have been filed impugning the common judgement and order dated 26.3.2021 passed in Writ Petition Nos.20385 (SS) of 2019, 20505 (SS) of 2020, 24584 (SS) of 2019 and 20251 (SS) of 2019 Writ petitions were filed for direction to the Uttar Pradesh Police Recruitment and Promotion Board, (hereinafter referred to as ''appellant Board') to treat the petitioners (respondents herein) qualified and eligible for appointment on the posts of Sub-Inspector (Confidential), Assistant Sub-Inspector (Ministerial) and Assistant Sub-Inspector (Accounts) and, further direction to consider the candidature of the petitioners-respondents for appointment on these posts while considering the degree/diploma possessed by the petitioners-respondents as equivalent to 'O' Level certificate issued by the DOEACC/NIELIT.
4. Facts of Special Appeal (Defective) Nos.243 of 2021, 244 of 2021 and 246 of 2021, in brief, are as under:-
(i) The appellants issued advertisement dated 26.12.2016 inviting applications from candidates to make recruitment to 136 posts of Sub-Inspector (Confidential), 303 posts of Assistant Sub-Inspector (Ministerial) and 170 posts of Assistant Sub-Inspector (Accounts). Last date of submission of application forms was 18.2.2017.
(ii) As per the advertisement, the following were the essential qualifications for three posts:-"
"(i) Assistant Sub-Inspector of Police (Ministerial):
(a) Bachelor Degree from a University established by law in India or equivalent qualification recognised by the Government.
(b) Hindi typing with speed of at least 25 words per minute and English Typing with speed of at least 30 words per minute (Uni-code based using in-script-key board or as prescribed by the Head of Department).
(c) Certificate of 'O' level in Computer from DOEACC/NIELIT Society.
(ii) Assistant Sub-Inspector of Police (Accounts):
(a) Bachelor Degree in Commerce or Post-Graduate Diploma in Accountancy from an University established by law in India or equivalent qualification recognised by the Government.
(b) Hindi Typing (Uni-code based using in-script-key board or as prescribed by the Head of Department) with speed of at least 15 words per minute.
(c) Certificate of 'O' level in Computer from DOEACC/NIELIT Society.
(iii) Sub-Inspector of Police (Confidential):
(a) Bachelor Degree from a University established by law in India or equivalent qualification recognised by the Government.
(b) Hindi Typing with speed of at least 25 words per minute and English Typing with speed of at least 30 words per minute (Uni-code based using in-script-key board or as prescribed by the Head of Department).
(c) Hindi shorthand dictation with a speed of minimum 80 words per minute.
(d) Certificate of 'O' level in Computer from DOEACC/NIELIT Society."
(iii) It was further provided in the advertisement that following would be preferential qualifications for the aforesaid posts:-
"(a) Higher certification from DOEACC/NIELIT;
(b) Graduation in Law from any institute or college or university recognized by University Grants Commission;
(c) Candidate had to submit preferential qualification for at least two years in the Territorial Army;
(d) Possess of 'B' Certificate of National Cadet Corps."
(iv) The recruitment was to be made as per the provisions of Uttar Pradesh Police Ministerial, Accounts, Confidential Assistant Cadre Service (First Amendment) Rules, 2016 (herein after referred to as "Rules, 2016"). The online examination was held on 22.12.2018. The result of the examination was declared on 8.3.2019.
(v) According to the petitioners-respondents, they were declared successful in the said written examination. After written examination, the next stage was of document verification and physical standard test, the candidature of the petitioners-respondents was rejected at this stage as they did not possess the 'O' Level certificate issued by the DOEACC/NIELIT.
(vi) Vide order dated 23.9.2019, learned Single Judge has directed that the appointments made during the pendency of the writ petitions would be subject to the outcome of the writ petitions.
(vii) Final result of the successful candidates was declared on 11.7.2019 and 14.7.2019 and the recruitment process thereafter came to an end. The selected candidates have joined their respective posts and fresh advertisement has also been issued for filling up the vacancies of the next year and unfilled vacancies of the previous years and the recruitment process is going on.
5. Facts of Special Appeal Defective No.245 of 2021 In this appeal, the writ petition was filed on 11.10.2020 after more than one year and three months from the date of the result of the successful candidates was published by the Board. The following prayer was made in the aforesaid writ petition, which reads as under :-
"To issue a writ, order or direction in the nature of mandamus commanding the respondents to consider the candidature of the petitioners for appointment on the post of ASI-M, while treating the degrees possessed by the petitioners as equivalent to the O Level certificate issued by DOEACC/NIELIT, copies whereof are contained in Annexure No.12, Annexure No.13, Annexure No.15, Annexure No.16 and Annexure No.17 to this writ petition."
6. Learned Single Judge vide impugned judgement and order dated 26.3.2021 has allowed these writ petitions filed by the petitioners-respondents and directed the appellants to consider the candidature of the petitioners-respondents in the light of the observations made in the judgement and allow them to participate in the physical standard test and subsequent selection process in pursuance of the advertisement dated 26.12.2016.
7. Learned Single Judge has formulated two questions for decision, which are as under:-
" 1. Whether it is permissible for the respondents to insist on 'O' Level certificate issued by DOEACC/NIELIT for appointment on the posts advertised?
2. Whether holding of basic educational qualification of Graduation can presuppose the acquisition of foundational knowledge in Computer if the syllabus of foundational knowledge of Computer is itself covered under the course of Graduation?
8. Learned Single Judge has held that insistence on 'O' Level certificate issued by the DOEACC/NIELIT is unreasonable and the candidature of a person cannot be rejected solely on the ground that he or she does not possess 'O' Level certificate issued by the DOEACC/NIELIT.
9. In response to question no.2, learned Single Judge has held that 'O' Level certificate issued by the DOEACC/NIELIT is a foundation course in Computer and to allow only such candidates to be appointed who have obtained training from a particular institute give rise to the institutional exclusivity having no reasonable basis for classification between the certificates issued by DOEACC/NIELIT and other State established/recognized universities/institution. It has also been held that syllabus of 'O' Level course is entirely covered under the syllabus of B.Tech, B.Sc, BCA etc. i.e. the degree/diploma course.
10. Learned Single Judge has distinguished the judgement in the case of Zahoor Ahmad Rather and others Vs. Sheikh Imtiyaz Ahmad and others, (2019) 2 SCC 404 on the ground that in Zahoor Ahmad's case, the required essential qualification was ITI certificate and the appellants in the said case were possessing the Diploma in Electrical Engineering/Electronics and Communication and, therefore, it was held that in absence of a specific statutory rule under which holding of higher educational could presuppose the acquisition of lower qualification, the higher qualification of Diploma in Electrical Engineering/Electronics and Communication could not be said to presuppose the required essential qualification of ITI certificate.
11. Learned Single Judge has further held that in the present case, syllabus of 'O' Level course, which is the essential qualification as per the advertisement, is included in B.Tech (Computer Science), B.Sc (Computer Science) BCA etc being a three or four years degree/diploma courses and, the candidate would not be required to possess 'O' Level course from DOEACC/NIELIT society, which is only a one year foundational course. It has been held that requirement of 'O' Level certificate even from the candidates having degree/diploma of B.Tech, B.Sc, BCA etc would be highly undesirable. It has been further held that requirement of 'O' Level course is proper only for candidates who possess bachelor degrees like B.A., B.Com etc.
12. Learned Single Judge has also distinguished the judgement of the Full Bench of this Court in the case of Deepak Singh and others Vs. State of U.P. and others, 2020 (1) ALJ 596 (FB) on the ground that in the said case, there was a specific bar of excluding the candidates holding higher degree. It was further held that there was no material on record to show that qualification possessed by the petitioners therein was in same line of the progression. It has been further held that in the present case, the qualification possessed by the petitioners-respondents covers the syllabus of 'O' Level course.
13. Heard Mr. Uday Veer Singh, learned Additional Chief Standing Counsel for the appellants as well as Dr. L.P. Misra, assisted by Mr. Prafulla Tewari, Ms. Ishita Yadu and Mr. Manjeet Singh, learned counsel for the respondents.
14. Dr. Uday Veer Singh, learned Additional Chief Standing Counsel appearing for the appellants has submitted that Rule 10 of the Rules, 2016 provides certificate of 'O' Level in Computer from DOEACC/NIELIT as an essential qualification for direct recruitment on the post of Assistant Sub-Inspector (Ministerial) Assistant Sub-Inspector (Accounts) and Sub-Inspector (Confidential). The advertisement was issued in terms of the aforesaid Rules, 2016 prescribing essential qualification as stipulated in Rule 10 of the rules 2016. Respondents had neither challenged the aforesaid Rules prescribing the certificate of 'O' Level in Computer from DOEACC/NIELIT society as an essential qualification for appointment on the said posts nor they had challenged the advertisement. Once there is a statutory prescription regarding essential qualification of possessing 'O' Level certificate from a particular institute i.e. DOEACC/NIELIT society and in absence of challenge to the Rules, 2016 and the advertisement, the learned Single Judge has grossly erred in allowing the writ petitions vide impugned judgement.
15. He has further submitted that when Rule 10 of Rules, 2016 provides essential qualifications for the posts in question which include certificate of 'O' Level in Computer from DOEACC/NIELIT society and the said rule does not envisages any other qualification as equivalent to the said qualification of certificate of 'O' Level, the learned Single Judge has erred in holding that possessing the educational qualification of B.Tech, B.Sc or BCA etc. would deem knowledge of 'O' Level course and, therefore, the candidates possessing B.Tech, B.Sc , BCA etc. are held to be qualified for appointment on the posts in question.
16. Learned counsel for the appellants has further submitted that the statutory rules do not provide any other qualification equivalent to the prescribed qualification of 'O' Level certificate from DOEACC/NIELIT society as an alternate essential qualification for 'O' Level certificate from DOEACC/NIELIT society and the learned Single Judge by judicial interpretation, has incorrectly and wrongly held that possessing degree/diploma of B.Tech, B.Sc or BCA etc. would necessarily include knowledge of 'O' Level course. The learned Single Judge based on said incorrect interpretation, has wrongly held respondents to be eligible for appointment on the posts in question.
17. Learned counsel for the appellants has also submitted that the learned Single Judge failed to appreciate that the contents regarding the essential qualification as mentioned in the advertisement dated 11.4.2013 for recruitment on the post of Computer Operator Grade-I and Programmer Grade-II are entirely different from the contents of the essential qualification as mentioned in the advertisement dated 26.12.2016 for three posts of Sub-Inspectors. He has further submitted that the committee formed to consider equivalence of the qualification for a different recruitment, does not have any relevance or bearing to the present recruitment in question inasmuch as the recruitment has been completed strictly in accordance with the statutory prescription and as well the advertisement for appointment on the said three posts. It has also been submitted that the impugned judgement and order is against the ratio of several judgments of the Supreme Court, Larger Bench of this Court and coordinate Benches of this Court, inter alia, judgments in Zahoor Ahmad rather (supra), The Maharashtra Public Service Commission through its Secretary vs. Sandeep Shriram Warade and others (2019)6 SCC 362, Prakash Chandra Meena and others Vs. State of Rajasthan and others (2015) 8 SCC 484, State of Punjab and others Vs. Anita and others, (2015) 2 SCC 170, P.M. Latha and another Vs. State of Kerala and others (2003) 3 SCC 541, Deepak Singh and others Vs. State of U.P. and others, 2020 (1) ALJ 596 (FB), Judgement and order dated 11.11.2020 passed by a coordinate Bench of this Court in Writ Petition No.20505 (SS) of 2020, Judgement in Special Appeal No.229 of 2016, Kartikey Vs. State of U.P. and others, and few other judgements.
18. He has further submitted that the learned Single Judge has grossly erred in law in considering the third amendment brought in the Rules, 2016 known as "U.P. Police Ministerial, Accounts and Confidential Assistant Cadres Service (3rd Amendment) Rules, 2020" (hereinafter referred to as "Rules, 2020") which has been brought in after the recruitment process initiated in pursuance of the advertisement dated 26.12.2016 got completed. What should have been considered, is the existing Rules on the date of the advertisement and not the Rules, which have been enacted after the recruitment process got completed. It has been further submitted that the impugned judgement and order is against the principle of judicial propriety inasmuch as in respect of the same recruitment, coordinate Benches of this Court have dismissed the writ petitions filed by other similarly placed candidate being Writ A No.11683 of 2019, 11474 of 2019, 14530 of 2019 and Writ Petition No.20505 (SS) of 2020, vide judgement and orders dated 2.8.2019, 5.8.2019, 19.9.2019 and 11.11.2020 relying on the Full Bench judgement of this Court in the case of Deepak Singh (supra) and held that the amended rules are not retrospective. When the advertisement, selection and results have not been challenged, the writ petition would not be maintainable by the candidates who had applied in pursuance of the aforesaid advertisement. A coordinate Bench in its order dated 11.11.2020 passed in Writ Petition No.20505 (SS) of 2020 had held that once the petitioners had applied in pursuance of the advertisement without challenge to the advertisement, selection and results, the writ petition by them would not be maintainable.
19. It has been submitted that if the learned Single Judge was not in agreement with the judgement/orders passed by other coordinate Benches dismissing the writ petitions, learned Single Judge ought to have referred the matter for decision by the Larger Bench. However, in the present case, without even adverting to the aforesaid judgements/orders passed by the coordinate Benches in writ petitions in respect of the same advertisement and same recruitment, it was improper to have allowed the writ petitions vide impugned judgement and order. It has been further submitted that the learned Single Judge has wrongly distinguished the judgement in the case of Zahoor Ahmad (supra) and the judgement of the Full Bench of this Court in the case of Deepak Singh (supra).
20. Sri L.P. Misra, learned counsel for the respondents has submitted that the finding recorded in the impugned judgment that the qualifications possessed by the respondents included the course of syllabus of 'O' Level certificate, has not been disputed by the appellants. He has further submitted that higher qualification possessed by the respondents are prescribed as preferential qualifications both in the statutory rules as well as in the advertisement. The preferential higher qualification prescribed in the statutory rules and, the advertisement is in the same stream/line of education and preferential qualification is inclusive of the course of study of essential qualification. He, therefore, submits that the learned Single Judge has correctly held that since the respondents possessed the preferential higher qualification, it would include the essential qualification of certificate of 'O' Level issued from DOEACC/NIELIT society.
21. He has further submitted that in respect of the recruitment of Computer Operator Grade-I and Programmer Grade-II by the U.P. Police Recruitment and Promotion Board, Lucknow initiated in pursuance of the advertisement dated 11.4.2013, prescribing 'O' Level certificate from DOEACC/NIELIT Society or its equivalent, Police Recruitment Board constituted an expert committee to examine the issue whether the diploma/degree holders in Computer Science would be treated as equivalent or not to the 'O' Level certificate issued from DOEACC/NIELIT society. Three members committee submitted its report dated 3.3.2014 stating that the Diploma/Degree courses of Computer Science were inclusive of 'O' Level certificate and are higher qualifications. Based on the said report, the candidates having Diploma/Degree qualifications in Computer Science/Computer Applications were considered for selection and were appointed as Computer Operator Grade-I and Programmer Grade-II. It has been further submitted that based on the expert committee report dated 3.3.2014, Rules, 2016 have been amended known as "U.P. Police Ministerial, Accounts and Confidential Assistant Cadres Service (Third Amendment) Rules, 2020" during the pendency of the writ petitions before the learned Single Judge. Now, under the amended rules, it is provided that the candidate must possess 'O' Level examination in Computer from NIELIT Society of the Government of India or a qualification recognized by the Government as equivalent thereto. He submits that the amended Rules, 2020 are clarificatory in nature and, therefore, essential qualification prescribed in Rules, 2016 is to be read as essential qualification prescribed under Rules, 2020.
22. He has further submitted that the respondents are possessing better qualification than the minimum essential qualification prescribed under the Rules and, therefore, they could not have been ousted from the consideration on the ground that they did not possess the essential qualification as prescribed under the Rules. He has further submitted that the higher qualification cannot be a disadvantage to a candidate and appointment cannot be denied to a person on the ground of having higher qualification than the prescribed. in this regard, he has placed reliance on the judgement in the case of Mohd. Riazul Usman Gani and others Vs. District and Sessions Judge, Nagpur and others, (2000) 2 SCC 606 (Paragraphs 20 and 21).
23. He has further said that a candidate cannot be denied selection and appointment merely because of having a higher qualification unless the higher qualification is specifically excluded, or the higher qualification holders are barred from offering their candidature by statutory prescription. In support of his submission, he has placed reliance on the judgement in the case of State of Haryana and another Vs. Abdul Gaffar Khan and another, (2006) 11 SCC 153 (Paragraphs 5, 6 and 7).
24. He has also placed reliance on the judgement of the Supreme Court in the case of Jyoti K.K. and others Vs. Kerala Public Service Commission and others, (2010) 15 SCC 596 (Paragraphs 8 and 9) to submit that higher qualification possessed by the respondents is not only a higher qualification, but also inclusive of essential eligibility qualification prescribed under the Rules and, therefore, the learned Single Judge has rightly held the respondents to be eligible for consideration for appointment on three posts in question.
25. He has relied on the judgement of the Supreme Court in the case of State of Uttarakhand and others Vs. Deep Chandra Tiwari and others, (2013) 15 SCC 557 (Paragraph 11) to submit that the higher qualification possessed by the respondents being in the stream of Computer Science and Computer Applications is of the same stream including the course of study of 'O' Level certificate awarded by the DOEACC/NIELIT and, therefore, the respondents could not have been put at disadvantageous position for acquiring higher qualification. He has also placed reliance on the judgment of the Supreme Court in the case of Kartikeya (supra) to submit that there is a presumption of having lower qualification if one is having a higher qualification in the same stream. He has tried to distinguish the judgement in the case of Zahoor Ahmad (supra) and Deepak Singh (supra) and other judgements relied upon by the learned counsel for the appellants.
26. Ms. Ishita Yadu, learned counsel for the respondents in Special Appeal No.245 of 2021 has submitted that insistence of 'O' Level certificate issued exclusively by DOEACC/NIELIT amounts to institutional exclusivity, which is arbitrary, whimsical and violative of Article 14 of the Constitution of India having no rational nexus with the object sought to be achieved. In support of her submission, she has placed reliance on the judgements of the Supreme Court in the following cases:-
(i) Municipal Corporation of Greater Bombay and others Vs. Thukral Anjali Deokumar and others, (1989) 2 SCC 249 (Paragraphs 17, 18, 19 and 20).
(ii) B.L. Asawa Vs. State of Rajasthan and others, (1982) 2 SCC 55 (Paragraph 10);
(iii) Parmar Alpaben Sanabhai Vs. State of Gujarat, 2004 (4) LLN 919 (Paragraph 22)
27. She has further submitted that Rule 10 of Rules, 2016 were de hors the fundamental rights enshrined under Articles 14 and 19 of the Constitution of India and, therefore, the third amendment has been brought in the aforesaid rules in the year 2020. It has been submitted that Rules, 2020 should be held to have retrospective operation as they have sought to rectify the defects in the Rules, 2016 bringing them within the Constitutional mandate of equality. In this regard, she has placed reliance on the following judgements:-
(i) Shri Chaman Singh and another Vs. Srimati Jaikaur, (1969) 2 SCC 429 (Paragraphs 5 and 6)
(ii) S.S. Grewal Vs. State of Punjab and others, 1993 Supp. (3) SCC 234, (Paragraph 9)
(iii) Zile Singh Vs. State of Haryana and others, (2004) 8 SCC 1 (Paragraphs 13 to 18 and 21)
(iv) Securities and Exchange Board of India Vs. Ajay Agarwal, (2010) 3 SCC 765 (Paragraph 40)
28. We have considered the submissions advanced by the learned counsel for the parties and perused the record.
29. Respondents have neither challenged the statutory rules i.e Rules, 2016 prescribing 'O' Level certificate in Computer Application from DOEACC/NIELIT as an essential qualification nor they had challenged the advertisement dated 26.12.2016 in pursuance of which the recruitment for three posts have been completed. In absence of challenge to the Rules and the advertisement and having applied in pursuance of the advertisement, it was not open for the respondents to come before the Court with the prayer to hold them eligible for the aforesaid three posts as they possessed the preferential qualification, but not the essential qualification. Prayers in the writ petitions would clearly show that there was no challenge to the statutory prescription and the advertisement. At the threshold, the candidate must possess essential qualification and, if he/she possesses the essential qualification, then only the preferential qualification would be considered in case there are two or more candidates having essential qualification and have secured equal marks in examination/interview etc. When a candidate does not possess the essential qualification, but has only preferential qualification, it cannot be said that he/she is to be held eligible for appointment on the post for which a qualification is prescribed as an essential qualification. There is nothing in Rules, 2016 which stipulates that possession of higher qualification would presuppose acquisition of the essential qualification of possessing 'O' Level certificate from DOEACC/NIELIT. In absence of such a stipulation, the hypothesis that the higher qualification presupposes the acquisition of lower essential qualification cannot be accepted.
30. The Supreme Court in the case of State of Punjab and others Vs. Anita and others, (2015) 2 SCC 170 in paragraph 15 held as under :-
"15. It was sought to be asserted on the basis of the aforesaid observations, that since the private respondents possess higher qualifications, then the qualification of JBT/ETT, they should be treated as having fulfilled the qualification stipulated for the posts of JBT/ETT Teachers. It is not possible for us to accept the aforesaid submission of the learned counsel for the private respondents, because the statutory rules which were taken into consideration by this Court while recording the aforesaid observations in Jyoti K.K. case [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596] , permitted the aforesaid course. The statutory rule, in the decision relied on by the learned counsel for the private respondents, is extracted hereunder: (SCC p. 598, para 6) "6. Rule 10(a)(ii) reads as follows:
''10. (a)(ii) Notwithstanding anything contained in these Rules or in the Special Rules, the qualifications recognised by executive orders or Standing Orders of Government as equivalent to a qualification specified for a post in the Special Rules and [Ed.: The matter between two asterisks has been emphasised in original as well.] such of those higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post [Ed.: The matter between two asterisks has been emphasised in original as well.] .'"
(emphasis supplied) A perusal of the Rule clearly reveals that the possession of higher qualification would presuppose the acquisition of the lower qualification prescribed for the posts. Insofar as the present controversy is concerned, there is no similar statutory provision authorising the appointment of persons with higher qualifications."
It is relevant to mention here that the judgement in the case of Jyoti K.K. (supra), relied by Sri L.P. Misra, has been considered in the aforesaid judgement.
31. The prescription of qualification for a post, is a matter of recruitment policy. The State or the employer is empowered to prescribe the qualification as a condition of eligibility. The Court while exercising the function of judicial review, cannot expand upon ambit of prescribed qualification.
32. The Supreme Court in the case of Zahoor Ahmad (supra) has held that equivalence of qualification is not a matter, which can be determined by the Court in exercise of power of judicial review. It is for the State to determine whether a particular qualification should also be regarded as a qualification. It would be apt to extract paragraphs 26 and 27 of the aforesaid judgement, which read as under :-
"26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] in the subsequent decision in Anita [State of Punjab v. Anita, (2015) 2 SCC 170 : (2015) 1 SCC (L&S) 329] . The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on a specific statutory rule under which the holding of a higher qualification could presuppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the High Court was justified in reversing the judgment [Zahoor Ahmad Rather v. State of J&K, 2017 SCC OnLine J&K 936] of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the Division Bench.
27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned."
33. We are of the view that the learned Single Judge has over stepped the power of judicial review while drawing equivalence of 'O' Level certificate in Computer Applications from DOEACC/NIELIT with B.Tech, B.Sc (CA) and BCA courses. The statutory rules not only prescribed the 'O' Level certificate in Computer Applications, but it also prescribed the institute from where the candidate should obtain the certificate as an essential qualification for the three posts in question.
34. DOEACC now known as "National Institute of Electronics and Information Technology" is an autonomous scientific society under the administrative control of the Ministry of Electronics and Information Technology, Government of India. It was set up to carry out human resource development and related activities in the area of information, electronics and communication technologies. DOEACC/NIELIT is engaged both formal and non-formal education in the area of information, electronics and communication technology besides development of industry-oriented quality education and training programs in the state-of-the-arts areas. It has endeavored to establish standards to be the country's premier institution for examination and certification in the field of information, electronics and communication technology. It is also one of the National Examination Body, which accredits institutes/organizations for conducting courses in Information Technology in the non-formal sector. It has 43 centers located all over India having its Headquarter at New Delhi. Over the last two decades, NIELIT has acquired very good expertise in Information Technology training, through its wide repertoire of courses, ranging from 'O' Level (Foundation), 'A' Level (Advanced Diploma), 'B' Level (MCA equivalent) and 'C' Level (M.Tech level). Thus, it is the premier institute providing quality education and training in the area of information, electronics and communication technology.
35. Once the statutory Rules prescribe for having 'O' Level certificate from this particular institute, by exercising judicial review, the Court cannot substitute its own view to hold that the higher qualification would certainly include the 'O' Level certificate issued by DOEACC/NIELIT. We, therefore, hold that the learned Single Judge has wrongly held that higher qualification held by the respondents would be inclusive of 'O' Level certificate and, therefore, the finding of the learned Single Judge that the respondents meet the essential eligibility condition, is not correct.
36. Full Bench of this Court in the case of Deepak Singh (supra) has specifically held that 'O' Level certificate granted by NIELIT is not equivalent to Post Graduate Diploma in Computer Application and presumption cannot be drawn to hold that the holder of Post Graduate Diploma in Computer Application, would necessarily possess the qualification as prescribed for 'O' Level Diploma accorded by NIELIT.
37. A Division Bench of this Court in Special Appeal Defective No.440 of 2021, Secretary, Uttar Pradesh Subordinate Service and 2 others Vs. Indra Prakash Patel, decided on 7.7.2021, where the rule prescribed one of the essential qualification as CCC Certificate in Computer operation awarded by the DOEACC society for the post of Cane Supervisor and, the candidate was having B.Tech (Agriculture) having computer one of the subject in two semesters, was held to be not eligible as he did not meet the essential eligibility condition. It was also held that the administrative order cannot supplant the statutory provisions and when a particular qualification is prescribed as essential qualification, the same cannot be supplanted by an administrative order without amending the rules. Paragraph 11 of the aforesaid judgement is reproduced as under:-
"11. As per the letters aforesaid, a candidate was made eligible, if he had undertaken computer science subject at the level of High School or Intermediate. It was also if one is having a diploma or degree in computer science. The petitioner / non-appellant was not having computer science subject at the level of High School / Intermediate or diploma or degree in computer science. The petitioner / non appellant is not having computer science at the level of High School or Intermediate. It is not having diploma or degree of computer science thus he was not eligible even by the Government Orders. At this stage it is necessary to observe that the administrative order referred to above i.e. 3/6.5.2016 and 23.9.2016 cannot be read in conflict to the Rules of 2015. The Rule of 2015, as amended require CCC Certificate of computer science. It could not have been nullified by an administrative order. It is settled law that an administrative order can supplement the statutory provisions but cannot supplanted it. The administrative order referred to above and quoted has supplanted the statutory provisions. It was not in the domain of the administration to issue order dehors the statutory provisions. Thus, even the administrative order could not have been read to the benefit of candidate going dehors the Rules. Learned Single Judge, however, placed reliance on the administrative orders ignoring the statutory provisions. Learned Single Judge extended the benefits to the petitioner even going contrary to the administrative order. The petitioner / non appellant was not having subject of computer science at the level of High School or Intermediate. He was not otherwise in possession of diploma or degree in computer science. He was having computer subject in two semesters of B. Tech. (Agriculture) course. It does not suffice the condition given even in the administrative order and otherwise it could not have been read in conflict with the statutory provisions. Accordingly, we find substance in the appeal and accordingly the judgement of learned Single Judge dated 20.1.2020, is set aside."
38. We also find that the learned Single Judge has not adverted to the judgements/orders of the three coordinate Benches, which have dismissed the writ petitions of the similar candidates in respect of the same recruitment started with advertisement dated 26.12.2016. It is an established practice that if a Bench of same strength does not agree with the judgement rendered by another Bench, the mater should be referred to the Larger Bench. In the present case, the learned Single Judge without adverting to the judgements and orders passed by the earlier Benches dismissing the writ petitions, has allowed the writ petitions.
39. We do not find any force in the submission of Sri L.P. Misra, learned counsel for the respondents that the third amendment in the year 2020 in the Rules, 2016, is clarificatory in nature. The recruitment must be completed as per the existing Rules. Rules, 2016 clearly stipulate the essential and preferential qualification. None of the respondents had 'O' Level certificate issued from DOEACC/NIELIT and, therefore, they were not found eligible for appointment on the three posts, subject matter of advertisement dated 26.12.2016. Rules, 2020 have no retrospective operation and, cannot be made applicable to the recruitment process initiated in pursuance of the advertisement prescribing the essential qualification of having 'O' Level certificate from DOEACC/NIELIT as per the existing Rules, 2016.
40. So far as the submission of Ms. Ishita Yadu, learned counsel for respondents in Special Appeal No.245 of 2021 is concerned, it is relevant to note here that the respondents in her case filed writ petition after the recruitment process was completed in the year 2019. There is no challenge to the statutory rules. The respondents had applied in pursuance of the advertisement dated 26.12.2016, therefore, they cannot be allowed later on to challenge the recruitment on the ground of institutional exclusivity. The State has prescribed 'O' Level certificate from the premier institute i.e. NIELIT in statutory rules and, therefore, we do not find any wrong in such a prescription. We are of the view that the writ petition filed by the respondents of Special Appeal No.245 of 2021 after the recruitment process completed, was not maintainable even otherwise.
41. For the reasons stated above, we allow the special appeals and set aside the impugned judgement and order dated 26.3.2021 passed by the learned Single Judge and dismiss the writ petitions filed by respondents.
(Dinesh Kumar Singh, J.) (Ritu Raj Awasthi, J.)
Order Date :- 27th August, 2021
Rao/-