Himachal Pradesh High Court
Kartik Katwal vs Himachal Pradesh Urban Development ... on 26 September, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 7883 of 2022
Reserved on: September 19, 2023
Decided on: September 26, 2023
________________________________________________________
.
Kartik Katwal ........... Petitioner
Versus
Himachal Pradesh Urban Development Authority and others
.... Respondents
________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
of
For the Petitioners : Mr. Sanjeev Bhushan, Senior
Advocate with Mr. Rajesh Kumar,
Advocate.
For the respondents
rt : Mr. Amit Singh Chandel, Advocate,
for respondent No.1.
Mr. Sanjeev K. Motta, Advocate, for
respondent No.2
Mr. Abhishek Raj, Advocate, for
respondent No.3.
________________________________________________________
Sandeep Sharma, Judge (oral):
Being aggrieved by and dissatisfied with non-recommendation of his name for appointment against the post of Junior Engineer (Civil) with respondent No.1-Himachal Pradesh Urban Development Authority, petitioner has approached this court in the instant proceedings filed under Art. 226 of the Constitution of India, praying therein for the following main reliefs:
"(i) To redraw the recommendations made by considering degree holders also for the post of Junior Engineer (Civil) for appointment in respondent No.1 authority in the interest of law and justice.1
Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 26/09/2023 20:35:20 :::CIS 2(ii) That the respondents may kindly be directed to recommend and appoint the petitioner to the post of Junior Engineer (Civil) in respondent No.1 Authority from the date when persons with lesser marks were appointed to the said post, alongwith all consequential benefits of pay, arrears, seniority etc."
.
2. Precisely, the facts of the case, as emerge from the record are that Himachal Pradesh Staff Selection Commission (hereinafter, 'Commission') vide advertisement No. 31-1/2021 dated 8.4.2021, invited online applications from eligible candidates for the different of categories of posts, including 6 posts of Junior Engineer (Civil) under post code 906 in the pay scale of Rs.10300-34800+3800 grade pay.
rt Out of 6 posts, 4 were under General (Unreserved) category and 2 posts were under Economically Weaker Sections. Last date for submission of online application was 10.4.2022 (Annexure P-1).
Petitioner alongwith others applied for the post of Junior Engineer (Civil) on contract basis and he was allotted roll number 906000233 for appearing in the written test. To shortlist the candidates, who had applied for the post in question, respondent No.2 conducted written examination (objective type) on 5.9.2021, wherein 1500 candidates appeared for screening test. Vide Notification dated 11.1.2022, result of the screening test came to be declared and out of 1500 candidates, 21 candidates were shortlisted for further selection process. Since the petitioner alongwith other candidates came to be shortlisted for further selection process i.e. evaluation of documents, he was also called for verification of documents on 27.1.2022. Since the petitioner had obtained 66.50 marks in written test/screening test, he was expecting to secure 15 marks allotted for evaluation process. Though evaluation ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 3 of the documents was done on 27.1.2022, but final result came to be declared on 27.8.2022 (Annexure P-3), whereby names of the selected candidate were recommended to respondent No.1 for appointment, but .
since name of the petitioner was no in the list of selected candidates, he made certain enquiries and found that his candidature has been rejected on the ground that he did not have requisite qualification to participate in the selection process for the post in question. In the aforesaid background, the petitioner has approached this Court, in the of instant proceedings, praying therein for the reliefs, as have been reproduced herein above.
3. rt Mr. Sanjeev Bhushan, Senior Advocate duly assisted by Mr. Rajesh Kumar, Advocate, vehemently argued that once documents of the petitioner were accepted after scrutiny and he was permitted to participate in the written examination, there was no occasion, if any, for respondent No.2 to declare him unsuccessful subsequently, on account of his not being eligible. He submitted that inasmuch as 3048 applications were received by respondent No.2 qua the post in question and out of same, 2400 applications were accepted. He submitted that since the petitioner was found eligible, he was not only permitted to participate in the written examination but was also permitted to appear for evaluation of documents. While referring to the Recruitment and Promotion Rules qua the post in question, Mr. Bhushan, argued that a person, holding higher educational qualification has been held to be ineligible for the post where lower qualification is prescribed. He submitted that the petitioner having advanced qualification in the field of civil engineering was more deserving to be ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 4 appointed against the post in question as such, action of respondent No.2 in not recommending name of the petitioner for appointment to the post in question, deserves to be quashed and set aside. He further .
submitted that qua the post of Junior Engineer (Electrical), with same Recruitment and Promotion Rules, even degree holders have been considered for appointment, as such, respondents cannot adopt different yardstick in the case of the petitioner. To substantiate his aforesaid argument, learned counsel for the petitioner placed heavy of reliance upon judgment rendered by Hon'ble Apex Court in Puneet Sharma and others v. Himachal Pradesh State Electricity Board
4. rt Limited and another etc. 2021 (5) Scale 468, Mr. Amit Singh Chandel, Advocate appearing for respondent No.1 and Mr. Sanjeev Kumar, Advocate appearing for respondent No.2, while refuting aforesaid submissions made on behalf of learned counsel for the petitioner, vehemently argued that since the petitioner was not having requisite qualification for being appointed to the post in question, no illegality can be said to have been committed by the respondents, while not recommending his name. Both the above named counsel, while making this court peruse Recruitment and Promotion Rules of the post in question, argued that prescribed qualification for the post is/was Diploma in Civil Engineering, meaning thereby that a person having degree in civil engineering was not eligible to apply for the post in question. While referring to the judgment passed by Hon'ble Apex Court in Puneet Sharma supra, learned counsel for the respondents vehemently argued that the same is not applicable to the facts of the present case because, in that case ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 5 Recruitment and Promotion Rules were pertaining to Himachal Pradesh State Electricity Board Limited whereas, the present matter pertains to Recruitment and Promotion Rules of respondent No.1. They .
further submitted that because of difference between the present case and Puneet Sharma's case, inasmuch as in latter case, there existed a Notification which prescribed that degree holder would be deemed to be eligible whereas, in the present case, no amendment ever came to be issued by the respondent No.1, thereby making degree holders of eligible to apply for the post in question.
5. Before ascertaining the correctness of the afore rival rt submissions made by learned counsel for the parties, this court deems it fit to take note of the minimum qualification prescribed in the advertisement as well as the Recruitment and Promotion Rules for the post in question, which are reproduced herein below:
"906 Junior Engineer (Civil):
i) Should have passed Matriculation or equivalent from recognized Board of University.
ii) B.Sc. Medical Laboratory Technology/ B.Sc. Medical Technology Laboratory/ B.Sc. Medical Technology (Laboratory)/ B.Sc. Medical Laboratory Sciences/ B.Sc. in Medical Laboratory Technology (lateral) from a recognized University or an Institution affiliated to a recognized University.
iii) Should be registered with the HP Para Medical Council for the above qualification.
Note:- A candidate shall be eligible for appointment of this post, if, he/she has passed Matriculation and 10+2 from any School/Institution situated within Himachal Pradesh. Provided this condition shall not apply to Bonafide Himachalis.
6. It is quite apparent from the aforesaid qualification prescribed in the advertisement as well as Recruitment and Promotion Rules that ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 6 candidates desirous of making application against the post of Junior Engineer (Civil), should have passed Matriculation or equivalent from recognized Board of University with Diploma in Civil Engineering from .
an institution recognized by State Government/Central Government.
7. Admittedly, in the aforesaid advertisement/Recruitment and Promotion Rules, there is/was no provision for degree holder in civil engineering to make application for the post of Junior Engineer (Civil).
8. Precisely, the question which needs determination in the case at of hand is, "whether a person having qualification higher than the one prescribed in the Recruitment and Promotion Rules can be offered rt appointment to the post in question or only a person, having requisite qualification as prescribed in the advertisement and Recruitment and Promotion Rules can be considered for appointment against the post in question.
9. Issue formulated herein above for determination is no more res integra, rather stands settled by Hon'ble Apex Court in various judgments. Reliance in this regard is placed upon judgment rendered by Hon'ble Apex Court in Zahoor Ahmad Rather and others etc. v.
Sheikh Imtiyaz Ahmad and others etc., Civil Appeal Nos. 11853- 11854 of 2018, wherein Hon'ble Apex Court has held that a person with higher qualification is not eligible to the post to which specific requirement of lower qualification is prescribed in the advertisement as well as Recruitment and Promotion Rules. It would be apt to take note of following paragraphs of the judgment supra:
::: Downloaded on - 26/09/2023 20:35:20 :::CIS 7"22. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti KK in the subsequent decision in Anita (supra). The decision in Jyoti KK 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 pre-supposes 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 of 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, rt as the recruiting authority, to determine. The decision in Jyoti KK turned on a specific statutory rule under which the holding of a higher qualification could pre- suppose 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 of the High Court was justified in reversing the judgment of the learned Single Judge and in coming to the 10 id at page 177 conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision of the Division Bench.
23. 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 KK must be ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 8 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 KK turned.
.
24. Ms Wadia sought to draw sustenance from the fact that the holder of an ITI certification can obtain lateral entry to the diploma course. The point of the matter, however, is that none of the appellants fit the description of candidates who had secured an ITI certification before seeking a lateral entry to a diploma course. Plainly, when an ITI with matric is required, a of person who does not hold that qualification is not eligible."
10. Reliance is also placed upon judgment passed by Hon'ble Apex rt Court in Zonal Manager, Bank of India, Zonal Office, Kochi & Ors.
v. Aarya K. Babu & Anr., Civil Appeal No. 6206 of 2019 (arising out of SLP(Civil) No. 16567 of 2016, decided on 8.8.2019, wherein Hon'ble Apex Court categorically held that it is not for the Court to provide the equivalence relating to educational qualifications inasmuch as the said issue has been settled by the Constitution Bench of this Court in the case of Mohammad Shujat Ali & Ors. vs. Union of India & Ors, (1975) 3 SCC 76.
11. In case titled Mohammad Shujat Ali supra, it came to be held that the question in regard to equivalence of educational qualification is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications and where the decision of the Government is based on the recommendation of an expert body, which possesses the requisite knowledge, skill and expertise for adequately discharging such a function, the court, uninformed of relevant data and unaided by the ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 9 technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government.
It would be relevant to take note of following paras of Zonal Manager, .
Bank of India, supra:
"16. Further it is not for the Court to provide the equivalence relating to educational qualifications inasmuch as the said issue has been settled by the Constitution Bench of this Court in the decision relied upon by the learned counsel for the appellants in the case of Mohammad Shujat Ali & Ors. vs. of Union of India & Ors, (1975) 3 SCC 76 wherein it is held that the question in regard to equivalence of educational qualifications is a technical question based on proper rt assessment and evaluation of the relevant academic standards and practical attainments of such qualifications and where the decision of the Government is based on the recommendation of an expert body which possesses the requisite knowledge, skill and expertise for adequately discharging such a function, the Court, uninformed of relevant data and unaided by the technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government.
17. In that backdrop, though in the instant facts presently the qualification possessed by the private respondents is decided to be included for the purpose of recruitment to the post of Agricultural Field Officer, as on the date of the recruitment Notification the same was not included therein, which cannot be substituted by the Court with retrospective effect for the reasons stated above. Therefore, in the said circumstance, in the present facts, the High Court was not justified in its conclusion. We, however, make it clear that though we have referred to the legal position and applied the same to the case of the parties who are before us, if in the case of similar recruitment, the employers themselves have permitted the equivalence and have continued such of those officers recruited, this decision shall not be applied to initiate action ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 10 against such officers at this distant point of time. Subject to the above, the orders passed by the High Court of Kerala which are impugned herein are set aside."
.
12. Recently, Hon'ble Apex Court, in Unnikrishnan CV and others v. Union of India and others, 2023 LiveLaw (SC) 256, held that courts would not prescribe the qualification and/or declare the equivalency of a course. Until and unless rule itself prescribes the equivalency namely, different courses being treated alike, the courts would not of supplement its views or substitute its views to that of expert bodies. It would be apt to take note of following paragraphs of Unnikrishnan CV supra:
rt "5. In this background, the qualification as prescribed in column No. 11 of GREF Rules, 1982 when perused, would indicate that candidate who is seeking promotion to the post of Superintendent BR Grade-I has to possess "Diploma in Civil Engineering" with 5 years regular service in the grade of General Reserve Engineering Force. Whereas appellants are possessing Diploma in Draughtsman Estimating and Design (DED), which fact is not seriously disputed by them. Mr. Tapas Das, learned counsel appearing for the appellants has fairly conceded before this Court that an erroneous proposition was put forth before the High Court, namely, it was contended that Diploma is equivalent to a Degree and as such negating said contention, the High Court though justified its conclusion had erred in ignoring the consistent stand that had been taken by the Appellants, namely, Diploma in DED possessed by them is that of 2 years course and though column 11 prescribes Diploma in Civil Engineering for being promoted as Superintendent BR-Grade-I is to be treated as equivalent and this aspect was required to be considered by the High Court is an argument which looks attractive at first blush. However, on a careful perusal of the extant Rules as applicable for ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 11 promotion to the post of Superintendent BR Grade-II, said contention has to be necessarily rejected for reasons more than one. Firstly, before the High Court appellants attempted to justify their claim contending "Diploma" is equivalent to a "Degree" and as such being entitled for promotion which has .
been negatived by the High Court and rightly so. Secondly, appellants tried to justify their claim contending rule as applicable for direct recruitment would be applicable for recruitment by promotion, which has not been accepted by the High Court. In so far as the contention regarding qualification for promotion, the rule itself is explicit and clear, namely, it of prescribes for promotion to Superintendent BR Grade-I only, those candidates possessing Diploma in Civil Engineering with 5 years regular service in the grade in General Reserve Engineering Force would be eligible. No doubt, said rule is rt silent with regard to Diploma in Civil Engineering being either 3 years or otherwise. It is an undisputed fact that appellants possess 'Diploma in DED' and not 'Diploma in Civil Engineering'. It is trite law that courts would not prescribe the qualification and/or declare the equivalency of a course. Until and unless rule itself prescribes the equivalency namely, different courses being treated alike, the courts would not supplement its views or substitute its views to that of expert bodies.
6. In Guru Nanak Dev University v. Sanjay Kumar Katwal & Anr.,1 this Court has reiterated that equivalence is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body of the university relating to equivalence should be by a specific order or resolution, duly published. Dealing specifically with whether a distance education course was equivalent to the degree of MA (English) of the appellant university therein, the Court held that no material had been produced before it to show that the distance education course had been recognized as such.
7. In Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz Ahmad & Ors 2 , it was held that the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 12 for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various 1 (2009) 1 SCC 610 2 (2019) 2 SCC 404 qualifications, etc. Judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the .
prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as recruiting authority, to determine. (Emphasis supplied)
8. The diploma courses offered by College of Military Engineering, Pune, (CME) has been recognized as a course for recruitment to the post under the Central Government vide of notification dated 01.02.2001, issued by Ministry of Human Resource Development (Annexure P-8). Said notification does not indicate diploma courses specified therein which are recognized by the Government of India are to be treated as rt equivalent. No material has been placed on record by the appellants to demonstrate that Diploma in DED is equivalent to Diploma in Civil Engineering.
9. The presumption on which the Writ Petition seems to have been presented is on the premise that appellants have been denied promotion on the ground that they possess a two year diploma not three year diploma, by completely ignoring the fact that denial of promotion is on the ground that candidates do not possess the prescribed requisite qualification namely "Diploma in Civil Engineering" and "Diploma in DED"
possessed by them is not as prescribed under the Rules. It is no doubt true that eligibility for promotional post namely Superintendent BR Grade-I is not conditioned by any year wise stipulations vis-a-vis the diploma course. In that view of the matter, prayer of the appellants cannot be granted for the reasons indicated hereinabove and we do not find any fallacy in the reasons assigned by the High Court.
10. For the reasons afore-stated, we are of the considered view that the appeal is liable to be rejected and accordingly it stands rejected as being devoid of merits. Costs made easy."
::: Downloaded on - 26/09/2023 20:35:20 :::CIS 1313. In case Jyoti K.K. & Ors. v. Kerala Public Service Commission & Ors. (2010) 15 SCC 596, Hon'ble Apex Court, while justifying the action of the Department concerned, inasmuch as .
rejection of candidature of diploma holders is concerned, held that 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 of require the creation of job opportunities across the societal structure.
Most importantly, Hon'ble Apex Court, in Zahoor Ahmad Rather rt supra, while interpreting judgment in Jyoti K.K. supra, held that interpretation, which has been placed on judgment, 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.
14. Since, in the case at hand, there is no rule, under which holder of higher qualification can pre-suppose acquisition of lower qualification, decision rendered in Jyoti K.K. supra, cannot have any application in the present case.
15. At this stage, reliance is placed upon following paras of Puneet Sharma supra:
"27. Thereafter, the Court discussed the previous rulings in P.M. Latha, Jyoti K.K. and Anita (supra), then concluded that the candidature of the diploma holders was correctly rejected and held as follows:
"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) ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 14 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 of 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 rt 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 ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 15 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."
.
16. From all the aforesaid judgments referred to herein above, it can be easily concluded that, while exercising power of judicial review, court can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, of as recruiting authority, to determine.
17. Though, Mr. Bhushan, learned senior counsel representing the rt petitioner placed heavy reliance upon the judgment rendered by Hon'ble Apex Court in Puneet Sharma supra but having perused the aforesaid judgment in its entirety, this Court is in agreement with learned counsel for the respondents that the same is distinguishable as far as present case is concerned. In Puneet Sharma, supra, Recruitment and Promotion Rules pertained to the post in Himachal Pradesh State Electricity Board Limited and the rules stipulating essential qualification for the post of Junior Engineer (Civil) in Puneet Sharma supra were framed and brought into force on 13.12.2006 by the Himachal Pradesh State Electricity Board Limited, whereas, rules in the present case, were notified vide Notification dated 19.11.2015 by the Department of Personnel, Government of Himachal Pradesh, which came to be adopted by respondent No.1 vide office order dated 30.9.2020 (Annexure R-1, page 51).
18. Most importantly, in the case of Puneet Sharma, supra, there existed Notification/amendment, which clearly provides that the degree ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 16 holders would be deemed to be eligible whereas, no such Notification/amendment ever came to be made in the Recruitment and Promotion Rules governing the post of Junior Engineer (Civil) in .
respondent No.1 Authority. Otherwise also, judgment passed by Hon'ble Apex Court in Puneet Sharma, supra, nowhere suggests that it ever came to be ruled in the aforesaid judgment that in all situations, Degree holders in Civil Engineering shall be considered for all the posts requiring Diploma in Civil Engineering. Similarly, there is no of observation in the judgment that a person with higher education would be eligible for the post where lower qualification is prescribed, rather, facts and rt judgment in Puneet Sharma, supra, came to be rendered in peculiar circumstances, wherein, admittedly, Notification / addendum was issued by the Department/Board, thereby clearly specifying that degree holders shall be deemed to be eligible for the post in question.
19. Otherwise also, if judgment rendered in Puneet Sharma supra is read in its entirety, Hon'ble Apex Court, though categorically agreed with the opinion rendered in its earlier judgment rendered in Zahoor Ahmad Rather supra, that while exercising power of judicial review, court can neither expand the ambit of the prescribed qualification nor the equivalence of a qualification is a matter, which can be determined in exercise of the power of judicial review, but yet in peculiar facts and circumstances of that case, interfered inasmuch as degree holders despite being there Notification/addendum were not considered for appointment to the post in question, qua which admittedly, in the ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 17 advertisement/Recruitment and Promotion Rules prescribed qualification was Diploma in Civil Engineering.
20. Admittedly, the post of Junior Engineer (Electrical) in the case of .
Puneet Sharma, was advertised by the respondent Commission, but thereunder essential qualification for the post in question included Degree in Civil Engineering. Hence, there appears to be merit in the contention of learned counsel for the respondents that the decision of the respondent Commission to exclude Degree holders from the post of of Junior Engineer (Civil) was a conscious decision taken after due deliberations.
21. rt Needless to say, otherwise also, this court finds that the judgment came to be rendered in Puneet Sharma supra, on 7.4.2021 whereas, advertisement in the case at hand was published on 8.4.2021. As per advertisement, only those candidates having Diploma in Civil Engineering were eligible to apply but yet the petitioner chose to apply against the post in question. Though, it came to be vehemently argued by learned senior counsel for the petitioner that after scrutiny of documents, petitioner alongwith other eligible candidates was shortlisted for screening test but said plea itself appears to be incorrect because verification/scrutiny of document was to be done after declaration of result of screening test. Since the application was given online and at that time, no documents regarding qualification were uploaded, there was no occasion otherwise for the respondent Commission to ascertain the eligibility/qualification of the candidates, as such, petitioner alongwith other candidates was permitted to participate in the written examination. It is only after declaration of ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 18 result of written examination that the candidature of the petitioner was rejected at the time of verification of documents.
22. Once, the petitioner was not found eligible as per Recruitment .
and Promotion Rules, no illegality can be said to have been committed by the respondent-Commission, while rejecting his candidature. Mere participation in written examination and thereafter passing of the same, would not give any right to the petitioner to claim the post that too, on the basis of marks obtained by him in written examination, especially of when it is not in dispute that 15 marks in total were kept separately to be awarded for documents in evaluation process.
23. rt Though, Mr. Bhushan, learned senior counsel vehemently argued that in terms of law laid down in Puneet Sharma, supra, person having higher qualification was also required to be considered against the post in question, but said plea of the petitioner may not be tenable for the reason that amendment, if any, after passing of judgment in Puneet Sharma, never came to be effected in the Recruitment and Promotion Rules, as such, respondent-Commission, while advertising the post in question vide advertisement dated 8.4.2021 specifically called upon candidates having Diploma in Civil Engineering to participate in the selection process.
24. Interestingly, in the case at hand, petitioner instead of laying challenge to the Recruitment and Promotion Rules, participated in the selection process but after having failed in the same, as detailed above, laid challenge to the same by way of present writ petition, which is not permissible in law.
::: Downloaded on - 26/09/2023 20:35:20 :::CIS 1925. Reliance is placed upon a judgment rendered by Hon'ble Apex Court in Tajvir Singh Sodhi supra, wherein, Hon'ble Apex Court having taken note of its earlier judgment, reiterated that it would not be .
open for an unsuccessful candidate to challenge selection criteria subsequently. Following paragraphs of Tajvir Singh Sodhi, supra, may be aptly taken note:
"13. The next aspect of the matter which requires consideration is the contention of the writ petitioners to the effect that the entire selection of process was vitiated as the eligibility criteria enshrined in the Advertisement Notice dated 5th May, 2008 was recast vide a corrigendum dated 12th June, 2009, without any justifiable reason. In rt order to consider this contention, regard may be had to the following case law:
i) In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576, this Court authoritatively declared that having participated in a selection process without any protest, it would not be open to an unsuccessful candidate to challenge the selection criteria subsequently.
ii) In Ramesh Chandra Shah vs. Anil Joshi, (2013) 11 SCC 309, an advertisement was issued inviting applications for appointment for the post of physiotherapist. Candidates who failed to clear the written test presented a writ petition and prayed for quashing the advertisement and the process of selection. They pleaded that the advertisement and the test were ultra vires the provisions of the Uttar Pradesh Medical Health and Family Welfare Department Physiotherapist and Occupational Therapist Service Rules, 1998. After referring to a catena of judgments on the principle of waiver and estoppel, this Court did not entertain the challenge for the reason that the same would not be maintainable after participation in the selection process. The pertinent observations of this Court are as under:
"24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."::: Downloaded on - 26/09/2023 20:35:20 :::CIS 20
iii) Similarly, in Ashok Kumar vs. State of Bihar, (2017) 4 SCC 357, a process was initiated for promotion to Class-III posts from amongst Class-IV employees of a civil court. In the said case, the selection was to be made on the basis of a written test and interview, for which 85% and 15% marks were earmarked respectively as per norms. Out of 27 (twenty- seven) candidates who appeared in the written examination, .
14 (fourteen) qualified. They were interviewed. The committee selected candidates on the basis of merit and prepared a list. The High Court declined to approve the Select List on the ground that the ratio of full marks for the written examination and the interview ought to have been 90:10 and 45 ought to be the qualifying marks in the written examination. A fresh process followed comprising of a written examination (full marks - 90 and qualifying marks - 45) and an interview (carrying 10 marks). On the basis of the performance of the candidates, results were declared and 6 (six) persons were of appointed on Class-III posts. It was thereafter that the appellants along with 4 (four) other unsuccessful candidates filed a writ petition before the High Court challenging the order of the High Court on the administrative side declining to approve the initial Select List. The primary ground was that the rt appointment process was vitiated, since under the relevant rules, the written test was required to carry 85 marks and the interview 15 marks. This Court dismissed the appeals on the grounds that the appellants were clearly put on notice when the fresh selection process took place that the written examination would carry 90 marks and the interview 10 marks. The Court was of the view that the appellants having participated in the selection process without objection and subsequently found to be not successful, a challenge to the process at their instance was precluded. The relevant observations are as under:
"13. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar (2007) 8 SCC 100, this Court held that: "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same (See also Munindra Kumar v. Rajiv Govil (1991) 3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission (2006) 12 SCC 724)".
13.1. It is therefore trite that candidates, having taken part in the selection process without any demur or protest, cannot challenge the same after having been declared unsuccessful. The candidates ::: Downloaded on - 26/09/2023 20:35:20 :::CIS 21 cannot approbate and reprobate at the same time. In other words, simply because the result of the selection process is not palatable to a candidate, he cannot allege that the process of interview was unfair or that there was some lacuna in the process. Therefore, we find that the writ petitioners in these cases, could not have questioned before a .
Court of law, the rationale behind recasting the selection criteria, as they willingly took part in the selection process even after the criteria had been so recast. Their candidature was not withdrawn in light of the amended criteria. A challenge was thrown against the same only after they had been declared unsuccessful in the selection process, at which stage, the challenge ought not to have been entertained in light of of the principle of waiver and acquiescence.
13.2. This Court in Sadananda Halo has noted that the only exception to the rule of waiver is the existence of mala fides on the part of the rt Selection Board. In the present case, we are unable to find any mala fide or arbitrariness in the selection process and therefore the said exception cannot be invoked."
26. Mere fact that the petitioner obtained higher marks than the selected candidates in written examination, would not make him eligible, once he is ineligible as per essential qualification prescribed in the advertisement. 15 marks provided for evaluation of documents, could have been awarded in favour of the petitioner, had he been declared eligible in terms of qualification prescribed in the advertisement/Recruitment and Promotion Rules qua the post in question.
27. Since, perusal of Annexure P-3, itself suggests that the the candidature of the petitioner was rejected for not fulfilling qualification as per advertisement/ Recruitment and Promotion Rules, no illegality can be said to have been committed by the Commission, while not awarding marks, if any, to the petitioner for evaluation of documents.
::: Downloaded on - 26/09/2023 20:35:20 :::CIS 2228. Division Bench of this Court in CWP No. 3238 of 2019 titled The State of H.P. and others v. Gayatri Devi and others and connected matters decided on 13.8.2021, while dealing with judgment rendered .
by Hon'ble Apex Court in Puneet Sharma, supra, has held that the proposition " higher qualification, will include lower qualification" cannot be applied universally as an indefeasible rule, it will always depend upon the facts and circumstances of each individual case. Since, in Puneet Sharma, supra, specific Notification/amendment was issued of thereby making Degree holders in Civil Engineering eligible to apply for the post in question, directions/decision rendered in the aforesaid rt judgment cannot be made applicable to the present case in view of the fact that no amendment/Notification ever came to be issued in the case at hand, thereby providing that the degree holders apart from diploma holders, shall also be eligible for the post in question. It would be relevant to take note of following paras of Gayatri Devi supra:
"25. We deem it necessary to observe that the proposition "higher qualification will include lower qualification" cannot be applied universally as an indefeasible rule, it will always depend upon the facts and circumstances of each individual case."
29. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this court finds no illegality or infirmity in the action of the respondent Commission inasmuch as it rejected the candidature of the petitioner being ineligible to apply for the post in question. The petition, being lacking in merit, is dismissed.
::: Downloaded on - 26/09/2023 20:35:20 :::CIS 2330. The petition stands disposed of in the afore terms, alongwith all pending applications.
(Sandeep Sharma) .
Judge September 26, 2023 Vikrant of rt ::: Downloaded on - 26/09/2023 20:35:20 :::CIS