Allahabad High Court
Manoj Kumar Singh & Others vs State Of ... on 17 October, 2014
Bench: Satyendra Singh Chauhan, Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
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AFR
Reserved on : 26.09.2014
Delivered on : 17.10.2014
Case :- SERVICE BENCH No. - 32 of 2014
Petitioner :- Manoj Kumar Singh & Others
Respondent :- State of U.P. through Prin. Secy. (Appointment), Lucknow & Ors.
Counsel for Petitioner :- Nirankar Singh
Counsel for Respondent :- C.S.C., Amit Kr. Singh Bhadauriya, Lalit Shukla,
Subhash Vidhyarthi;
Case :- SERVICE BENCH No. - 49 of 2014
Petitioner :- Parnil Mishra
Respondent :- U.P. Power Corp. Ltd. Through Chairman Lko. & Another
Counsel for Petitioner :- Suresh Kumar Upadhyay,S.K.Upadhyay,Satish Chandra
Shukla
Counsel for Respondent :- Amit K.Singh Bhadauriya,Subhash Vidyarthi;
Case :- SERVICE BENCH No. - 83 of 2014
Petitioner :- Deepali Yadav
Respondent :- Secy. Electricity Service Commission U.P. Power Corp. Ltd.
Counsel for Petitioner :- Vivek Srivastava
Counsel for Respondent :- Amit K.Singh Bhadauriya;
Case :- SERVICE BENCH No. - 175 of 2014
Petitioner :- Vaibhav Mishra
Respondent :- Electricity Services Commission U.P. Power Corp. Ltd.
Counsel for Petitioner :- Hari Om Singh
Counsel for Respondent :- Amit K.Singh Bhadauriya;
&
Case :- SERVICE BENCH No. - 205 of 2014
Petitioner :- Ruchi Singh Raghuvanshi & 58 Ors.
Respondent :- State of U.P. through Prin. Secy. Appointment Lko. & Ors.
Counsel for Petitioner :- Dharm Raj Mishra
Counsel for Respondent :- C.S.C., Amit K.Singh Bhadauriya
Hon'ble Satyendra Singh Chauhan,J.
Hon'ble Rakesh Srivastava,J.
(Delivered by Hon. Rakesh Srivastava J.)
1. On 03.09.2013, the Electricity Service Commission, U.P. Power Corporation Ltd., Lucknow (for short 'Commission') issued an -2- advertisement inviting applications for appointment to the post of Assistant Engineer (Trainee) in Electrical, Electronics, Computer Science Engg. / Information Technology and Civil Engineering Branches in the U.P. Power Corporation Ltd., Lucknow (for short ''Corporation'). The last date for submission of online applications was 10.10.2013. Condition no. 4 (c) of the advertisement dated 02.09.2013 which provided for minimum cut off marks in the qualifying examination as an eligibility criterion to participate in the recruitment process was struck down by this Court at Allahabad. Accordingly, on 15.10.2013 a corrigendum was issued whereby condition no. 4 (c) in the advertisement dated 02.09.2013 was deleted. The last date for submission of online applications was extended up to 02.11.2003.
2. A perusal of the advertisement dated 02.09.2013 would show that inter alia 120 posts of Assistant Engineer (Trainee) Electrical were advertised. As per the said advertisement, only the candidates possessing a B. Tech degree in Electrical Engineering from a University or a course recognized as equivalent thereto by the State Government, were eligible for appointment to the said post.
3. The petitioners who hold a B. Tech degree in Electrical & Electronics Engineering from different Engineering Colleges also submitted their applications online for appointment to the post of Assistant Engineer (Trainee) Electrical, the post with which we are concerned in the present writ petition. The petitioners were issued call letters and in pursuance thereof, the petitioners appeared in the Computer Based Test (CBT). On 18.12.2013, the result of CBT was declared but the name of the petitioners did not figure in the list of the successful candidates. On enquiry the petitioners came to know that their candidature was not considered, as according to the respondents the petitioners did not possess the degree of B. Tech in Electrical Engineering which made them ineligible for appointment to the post in question. After having failed to get any response to the representations made by the petitioners to the authorities concerned, the petitioners preferred the writ petitions mentioned above. The advertisement dated 03.09.2013 is not under challenge. The petitioners have only prayed for a direction to the opposite parties to treat the B. Tech degree in Electrical & Electronics Engineering possessed by them as equivalent to the B. Tech degree in Electrical Engineering, and to consider their candidature.
4. All the writ petitions mentioned above raise a common question of fact and -3- law and as such they are being disposed of by a common order.
5. Sri Nirankar Singh, learned counsel for the petitioners in Writ Petition No. 32 (S/B) of 2014 has made the following submissions :-
a. Since the online applications of the petitioners were accepted and the petitioners were permitted to appear in the written examination, the opposite parties were estopped from withholding their result on the ground that the petitioners were not eligible. b. The High Court at Delhi has held that the B. Tech degree in Electrical & Electronics Engineering is equivalent to the B. Tech degree in Electrical Engineering and in this view of the matter alone the opposite parties were obliged to consider the candidature of the petitioners for appointment to the post in question. c. In the year 2011, the candidates possessing the B. Tech degree in Electrical & Electronics were considered and appointed to the post of Assistant Engineer (Trainee) Electrical even though the qualification for appointment to the said post was the same as the one mentioned in the advertisement dated 03.09.2013 and as such the opposite parties should not and cannot refuse to consider the candidature of the petitioners for appointment on the post in question.
6. Sri Vivek Srivastava, Sri Hari Om Singh, Sri Dharm Raj Misra and Sri S. K. Upadhyaya, learned counsels appearing on behalf of the petitioners in the other petitions have reiterated the submissions advanced by Sri Nirankar Singh.
7. Per contra the learned counsels appearing on behalf of the opposite parties have controverted the arguments made on behalf of the petitioners.
According to the counsels for the opposite parties the writ petition is devoid of merit and is liable to be dismissed as such.
8. Shri Subhash Vidhyarthi, learned counsel appearing for the opposite party nos. 2 to 4 has inter alia submitted that the petitioners had not filled their online application forms correctly and as such, the petitioners cannot invoke the plea of promissory estoppel as alleged by the learned counsel for the petitioners, that the B. Tech degree in Electrical & Electronics possessed by -4- the petitioners was not equivalent to the B. Tech degree in Electrical as alleged by the petitioners, that in the facts and circumstances of the case the petitioners do not derive any benefit from the judgment of the High Court at Delhi, that the petitioners are admittedly not qualified for appointment to the post of Assistant Engineer (Trainee) Electrical and merely because some ineligible candidates were considered and appointed on the post in question in the past, the candidature of the petitioners cannot be considered for appointment to the post in question. The learned counsel has submitted that the alleged illegality committed by the Corporation in the year 2011 cannot be perpetuated.
9. Learned Standing Counsel appearing on behalf of opposite party no. 1 and Sri Lalit Shukla, learned counsel appearing on behalf of the opposite party nos. 5 & 6 have adopted the arguments of Sri Subhash Vidhyarthi, learned counsel for opposite party nos. 2 to 4.
10. Heard the learned counsels for the petitioners, the learned Standing Counsel, Sri Subhash Vidhyarthi and Shri Lalit Shukla, learned counsels appearing on behalf of the opposite parties. Counter affidavit has been filed only on behalf of opposite party nos. 2 to 6 in writ petition no. 32 of 2014 (S/B). The petitioners chose not to file any rejoinder affidavit.
11. We have considered the rival submissions made by the learned counsel for the parties and perused the records. With the consent of the learned counsel for the parties the writ petitions are being disposed of finally.
12. We will first deal with the plea of estoppel raised on behalf of the petitioners.
13. The qualification for appointment to the post of Assistant Engineer (Trainee) in various branches of Engineering in the Corporation is laid down in the U.P. State Electricity Board Engineers Service Regulations, 1970 (for short 'Regulations') as amended from time to time. The said Regulations were notified on 08.12.1970 by the erstwhile U.P. State Electricity Board in exercise of the power vested in it, under section 79 (c) of the Electricity (Supply) Act, 1948. The qualification for appointment to the post of Assistant Engineer (Trainee) Electrical prescribed under the Regulations is a B. Tech degree in Electrical Engineering or a Degree or Diploma recognized as equivalent thereto by the State Government. There is no dispute that the qualification for appointment to the post in question, -5- mentioned in the advertisement dated 03.09.2013, is the one prescribed by the Regulations.
14. Sri Subhash Vidhyarthi learned counsel appearing for the opposite party nos. 2 to 4 has submitted that the petitioners were B. Tech in Electrical & Electronics and as such, as per the advertisement, they were not eligible for appointment to the post in question. However, the petitioners were permitted to provisionally appear in the CBT for the reason that in their online application forms the petitioners mentioned their educational qualification as B. Tech in Electrical Engineering instead of clicking the option 'others'. The counsel submitted that in case the petitioners had filled the forms correctly their online application forms would have been rejected automatically. Sri Vidyarthi took us through the terms and conditions given in the advertisement, the terms and conditions mentioned in the online application form, and also through the declaration made by the petitioners in their online application forms and then reiterated that the candidature of the petitioners was liable to be rejected and has rightly been rejected. The learned counsel has submitted with vehemence that since the petitioners were guilty of misrepresentation, they cannot be permitted to invoke the plea of promissory estoppel.
15. A perusal of the application forms of the petitioners of writ petition no. 32 of 2014 (S/B) (jointly annexed as annexure no.CA-4 to the counter affidavit filed on behalf of opposite party nos. 2 to 4) would show that all the petitioners of the said writ petition against the column "Grad Course" under the head "Graduation Details" have mentioned "Electrical Engineering". The relevant entry is as follows:
Graduation Details Institute State Institute Name Grad Course Electrical Engineering Grad Passing Year Grad Percentage Sri Vidyarthi, on the basis of record, has submitted that same is the position of all the petitioners in the connected petitions.
16. In the advertisement dated 03.09.2013, it was specifically mentioned that the detection of incorrect information or submission of false / fake documents would tend to cancellation of candidature / appointment at any -6- stage. It was further stated that if at any stage it was found that any information furnished in the online application was false / incorrect or the candidate did not satisfy the eligibility criteria for the post applied, his candidature would be treated as cancelled.
17. We find that in their online application forms, the petitioners have made the following declaration:
"DECLARATION I hereby declare that I have carefully read the instructions and all the particulars stated in this application form are true and correct to the best of my knowledge and belief. If any of these information provided is found false / incorrect, I shall abide by the action and decisions taken by the U.P. Power Corporation Limited, Lucknow.
..................................
Candidate Signature"
18. The note, in CAPITAL LETTERS, at the top of the online admit cards issued to the petitioners contained the following note:
"THIS ADMIT CARD PROVISIONALLY ALLOWS YOU TO APPEAR IN THE EXAMINATION ON THE BASIS OF PARTICULARS PROVIDED BY YOU IN THE ONLINE APPLICATION PART-A. ISSUANCE OF THIS ADMIT CARD DOES NOT NECESSARILY MEAN ACCEPTANCE OF ELIGIBILITY. COMPLETE FORM WITH UPLOADED PARTICULARS WILL BE SCRUTINIZED SUBSEQUENTLY."
Moreover, the admit cards also contained the proforma of a declaration in the following terms:
"I ............................... Son / Daughter of ............................. hereby declare and solemnly affirm that I have fully understood all the details provided in the Advertisement NO. 03/VSA/2013 and accordingly all the particulars stated in the application form submitted by me through online, are true to the best of my knowledge and belief. If at any stage it is found that the information furnished in the online application form is false/fake/misinterpreted/incorrect or myself does not satisfy the -7- eligibility criteria for the post applied, my candidature may be cancelled even after appearing in the Examination in addition to any other action as may be deemed fit. I will not claim any refund of fees or compensation or any sort of damages.
Date : ................
Place: .................
.............. ..................................
Thumb Impression Signature of the candidate
19. As per the instructions in the admit card the candidates were required to put their thumb impression and signature on the declaration in the presence of invigilator and hand over the same to the test administrator / invigilator in the examination hall. Thus, all the petitioners had appeared in the examination after furnishing the declaration mentioned above.
20. There is no dispute that all the petitioners had a B. Tech Degree in "Electrical & Electronics" but in their online application forms instead of "Electrical & Electronics" the petitioners had entered "Electrical". It was on the strength of the incorrect qualification mentioned by the petitioners in their online application forms that the petitioners were permitted to appear in CBT. Subsequently, when the particulars furnished by the petitioners in their online application forms were scrutinized, it transpired that the petitioners did not possess the minimum qualification prescribed in the advertisement for appointment to the post in question. Accordingly, a decision was taken to withhold the result of the petitioners and not to consider the candidature of the petitioners any further.
21. Sri Nirankar Singh, the learned counsel for the petitioner has submitted that there was no intention on the part of the petitioners to make a wrong entry in their online application forms. He has tried to justify the action of the petitioners in mentioning "Electrical Engineering" as their qualification in their application forms. The learned counsel, by invoking the principles of promissory estoppel, has submitted that once the petitioners have been permitted to appear in the examination the opposite parties are estopped from withholding their results.
22. We regret this cannot be accepted.
23. No amount of justification for their conduct would come to the rescue of the -8- petitioners in the present case. It is well settled that the principle of promissory estoppel is based on equitable principles and a person who has himself misled the authority by making a fake statement, cannot invoke this principle, if his misrepresentation misled the authority into taking a decision which on discovery of the misrepresentation is sought to be cancelled.
24. In paragraph 7 of the case reported in 2003 (1) SCC 152, Central Airmen Selection Board& Anr. vs. Surendra Kumar Das the Apex Court has held as follows:-
"7. The question, therefore, is whether in a case of this nature the principle of promissory estoppel should be invoked. It is well known that the principle of promissory estoppel is based on equitable principles. A person who has himself misled the authority by making a fake statement, cannot invoke this principle, if his misrepresentation misled the authority into taking a decision which on discovery of the misrepresentation is sought to be cancelled. The High Court has proceeded on the basis that the petitioner had not made any misrepresentation in his application to the effect that he had passed the Intermediate examination. As we have found above, this finding of the High Court is erroneous, contrary to record and therefore must be set aside. In his application, the respondent had claimed that he had passed the Secondary examination as well as the Higher Secondary +2 examination, and it is clear from the counter affidavit filed on behalf of the appellants that his candidature was considered on the basis that he had passed the Higher Secondary +2 examination, as in that case he was entitled to claim relaxation in the matter of age. However, the mark sheet annexed to the application disclosed that the respondent had failed in the subject Chemistry and therefore, his claim in the application, that he had passed the Higher Secondary +2 examination, was factually incorrect and a clear misrepresentation. In these circumstances we are satisfied that the respondent could not be permitted to invoke the principle of promissory estoppel, and the High Court was clearly erred in law in invoking the said principle in the facts of this case. The judgement and order of the High Court therefore cannot be sustained."
25. In the present case, all the petitioners had a B. Tech degree in Electrical & Electronics but in they made a false statement in their online application -9- forms by entering "Electrical" instead of "Electrical & Electronics". Thus, the petitioners misled the authorities. In case the petitioners had mentioned their educational qualification correctly in the application form, there is no element of doubt that their applications would have been rejected and that they would not have been permitted to appear in the CBT. Under these circumstances, we do not find any infirmity or illegality in the action of the opposite parties in withholding the result of the petitioners and not considering the case of the petitioners for appointment to the post in question, any further. Merely because the petitioners were permitted to appear in the CBT, the opposite parties cannot be directed to declare the result of the petitioners and consider their candidature for appointment to the post in question.
26. The petitioners have raised the plea of estoppel against the opposite parties. On the contrary, in the facts and circumstances of the case, it is the petitioners who are estopped from challenging the action of the opposite parties in withholding the result of the petitioners.
27. The first submission made by learned counsel for the petitioners is answered in the negative.
28. In view of the misrepresentation made by the petitioners, the terms and conditions mentioned in the advertisement and in the online admit cards issued to the petitioners, and more specifically the declaration made by the petitioners, the bunch of writ petitions mentioned above are not maintainable and are liable to be dismissed as such. However, in view of the fact that the careers of young men and women is at stake, we proceed to examine the other two submissions made on behalf of the petitioners.
29. This brings us to the second and core submission made on behalf of the petitioners. The learned counsels appearing for the petitioners have submitted that the B. Tech degree in Electrical & Electronics is equivalent to the B. Tech degree in Electrical. The learned counsels have placed heavy reliance upon the decision rendered by the High Court at Delhi in Writ Petition (C) No. 6100 of 2012, Ms. Nisha vs. Union of India & Ors. The learned counsels have submitted that since the B. Tech degree in Electrical & Electronics is equivalent to the B. Tech degree in Electrical, the opposite parties were obliged to consider the candidature of the petitioners for appointment to the post in question.
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30. In the case of Ms Nisha (Supra) the High Court at Delhi has held that the B. Tech degree in Electrical & Electronics of U.P. Technical University, Uttrakhand was equivalent to the B. Tech degree in Electrical of U.P. Technical University, Uttrakhand. After holding that the two degrees were equivalent to each other, the High Court at Delhi issued a mandamus to the respondents in the said case to proceed with the selection process pertaining to the writ petitioners, keeping in view their merit position in the selection list against the post to which they had applied for.
31. Sri Subhash Vidhyarthi, learned counsel for the opposite parties nos. 2 to 4, on the other hand, has tried to distinguish the case of Ms Nisha by stating that the matter before the High Court at Delhi, related to the State of Uttrakhand. The learned counsel has taken us through the Syllabus and Course contents of the two degrees prescribed by the U.P. Technical University and has submitted there was a variation of 20% to 30% in the Syllabus and Course contents of the two degrees of the U.P. Technical University, Lucknow and as such, according to him the two degrees are not equivalent as alleged by the learned counsels for the petitioners. He has submitted that the two member committee constituted by the All India Council for Technical Education, New Delhi had opined that the B. Tech degree in Electrical & Electronics of U.P. Technical University, Lucknow was not equivalent to the B. Tech degree in Electrical of U.P. Technical University, Lucknow. He has further submitted that in case the Syllabus and Course contents of the two degrees was the same, there was no need for the Universities to run the same course under two different names for granting two separate degrees. Sri Vidyarthi has submitted that in a catena of decisions, the Apex Court has held that the matter pertaining to the equivalence of degrees being an area of expert opinion should be left to the experts and the Courts should not readily indulge in voyagerism. He has submitted that it is only the experts alone who could opine upon the equivalence of the two degrees. The learned counsel has submitted that even if the High Court at Delhi had come to the conclusion that the two member committee appointed by the AICTE had submitted the report mechanically and the said report was based on extraneous and irrelevant considerations, the High Court at Delhi should have struck down the report and should have remanded the matter to the AICTE for appropriate action. The learned counsel has submitted that it was neither the domain of the Court nor the Court had the expertise to declare the two degrees equivalent. -11-
32. Be that as it may.
33. From a perusal of the judgment rendered by the High Court at Delhi in the case of Ms. Nisha (supra) we find that though the High Court at Delhi has held that the B. Tech degree in Electrical & Electronics was equivalent to the B. Tech degree in Electrical but that alone was not the reason why the petitioners in the said case were directed to be considered for appointment. We find that apart from holding that the two degrees under consideration were equivalent, there were a number of ''other overwhelming reasons' for allowing the writ petitioners of the said case to be considered for appointment. The ''other overwhelming reasons' in the case of Ms Nisha are to be found in paragraph nos. 21-28 and 30 of the said judgment and they are being quoted below :
"21. It assumes importance to note that advertisements issued for employment by the Indian Navy and the Indian Air Force treat B. Tech ELECTRICAL AND ELECTRONICS equivalent to B. Tech ELECTRICAL. All Public Sector Undertakings which employ personnel versed and conversant with ELECTRICAL ENGINEERING such as Hindustan Petroleum Corporation Ltd., Steel Authority of India Ltd., Bharat Heavy Electrical Ltd., National Thermal Power Corporation Ltd. and Gas Authority of India Ltd. also treat the two degrees as equivalent.
22. Surprisingly, when it comes to males, the instant advertisements pursuant way to the lady petitioners have applied, would reveal that both degrees i.e. B. Tech ELECTRICAL AND ELECTRONICS as also B. Tech ELECTRICAL are listed as the eligible educational qualification. As a matter of fact the original advertisement published in January 20, 2012 made no distinction between males and females as regards the degree and only the corrigendum issued on February 11, 2012 did so, by which time many people had applied online.
23. A very feeble attempt was made to justify retaining B. Tech ELECTRICAL AND ELECTRONIC and B. Tech ELECTRIC as equivalent degrees for men and different for women, by urging that ELECTRICAL ENGINEERING covers subjects relating to ELECTRICAL SUB SYSTEM AND CONTROL, an area of -12- knowledge imparted very minimal to the students having discipline ELECTRONICS AND ELECTRICAL and thus employability for the latter is minimal in peace areas. The argument was advanced to justify retention of equivalence of the two subjects for males, who as per the respondents would be deployed in operation areas and not the females.
24. The justification is a simple ruse inasmuch we have noted hereinabove that the degree course B. Tech ELECTRICAL AND ELECTROINCS subsumes the entire course B. Tech ELECTRICAL and teaches something more.
25. Now, the Air Force uses equal number of electrical equipment and even the Indian navy does so. There was no justification forth coming as to why said two branches of the Armed Forces do not draw any such distinction.
26. It was then urged by the respondents that the petitioners could not have even applied for the post inasmuch in the advertisements it was clearly indicated as to what degree was treated as the essential degree. It was urged that the writ petitioners, by submitting their applications tried to over reach the advertisement inviting applications.
27. As regards the writ petitioners who had the degree of B. Tech in ELECTRICAL AND ELECTRONICS, we have already noted above that the original advertisement made eligible even said degree holders till the corrigendum was published in Employment News on February 11, 2012. But, the web page of the site of the Indian Army, which we accessed in Court at the hearing held on November 22, 2012, evidenced that the corrigendum was not even put on the website. We did so in Court inasmuch as the writ petitioners informed that when they accessed the website pursuant to the advertisement dated January 20, 2012, notwithstanding they did so after February 11, 2012, the website continued display the eligibility qualifications as originally entered. Indeed, the position is as stated by the petitioners.
28. The position which therefore emerges is that due to complete identity in the course curriculum of the degrees B. Tech -13- INFORMATION TECHNOLOGY and B. Tech COMPUTER SCIENCE and the degrees B. Tech INSTRUMENTATION AND CONTROL and B. Tech ELECTRONIC AND INSTRUMENTATION, even the experts panel constituted by AICTE has opined equivalence and as regards B. Tech ELECTRICAL AND ELECTRONICS AND B. Tech ELECTRICAL, though the experts have opined to the contrary, we find equivalence. The further position which emerges is that as regards males, the Indian Army treats B. Tech ELECTRICAL AND ELECTRONICS and B. Tech ELECTRICAL as equivalent degrees. Further position emerges that the Indian Navy and the Indian Air Force treats the two degrees as equivalent and so do all other Public Sector Undertakings. The further position which emerges that all writ petitioners succeeded with merit, and we highlight that the young lady writ petitioners found themselves in the select list for 35 posts from amongst 11,000 canddiates; we presume that the slection process was to test the knowledge in the field of ELECTRIAL ENGINEERING and the success of the lady writ petitioners holding degree in ELECTRIC AND ELECTRONIC ENGINEERING is proof of what we have held herein above that the degree course undertaken by them has subsumed within, the degree course in ELECTRIC ENGINEERING.
29. ...........................
30. We note that learned counsel for the respondents had conceded that the number of persons issued letters of appointment exceed more than three times the vacancies which were advertised and the reason is a shortage of officers in the Indian Army, and for which the young petitioners who were present in Court had drawn our attention to the newspaper report published on November 15, 2012 in the daily newspaper 'The Pioneer' that the shortage of officers in the Indian Army is 12,000; indeed learned counsel for the respondents did not refute said position; meaning thereby that the induction of the petitioners would not adversely affect the persons who have been issued letters of appointment notwithstanding many of them being lower in the merit position to the writ petitioners. ........."
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34. Thus, it is apparent that in case of M/s Nisha (supra) the High Court at Delhi, after holding that the B. Tech degree in Electrical & Electronics and B. Tech degree in Electrical were equivalent, passed an order in favour of the lady petitioners in the said case for the following reasons:
a. The advertisement issued for employment by the Indian Navy and Indian Air Force treated the B. Tech Electrical & Electronics equivalent to B. Tech Electrical. b. For the male candidates for the same post both degrees i.e. B. Tech Electrical & Electronics and B. Tech Electrical were listed as eligible educational qualification.
c. Advertisement published on 20.01.2012 made no distinction between males and females as regards the degree and only the corrigendum issued on 11.02.2012 did so, by which time many people had applied online.
d. Respondents in the said case failed to justify retaining B. Tech Electrical & Electronics and B. Tech Electrical as equivalent degrees for men and different for women.
e. The Corrigendum which was published in employment News on February, 11, 2012 was not even put on the website of the Indian Army till the date the matter was heard by the High Court at Delhi.
f. There was shortage of officers in the Indian Army and as such induction of the petitioners was not going to adversely affect the persons who had been issued the letters of appointment.
35. The ''other overwhelming reasons' in the case of Ms. Nisha (supra), as specified above, are conspicuously absent in the present case. Even if we were to arrive at the conclusion that the B. Tech degree in Electrical & Electronics and B. Tech degree in Electrical are equivalent, as strongly urged by the learned counsel for the petitioners, we are unable to persuade ourselves to pass an order in favour of the petitioners for more than one reason enumerated hereinafter.
36. The statutory authority is entitled to frame statutory rules, terms and conditions of the services and also the qualifications essential for holding a particular post. It is the concerned authority and authority alone which can -15- take an ultimate decision. The Courts do not and cannot direct the employer to prescribe a qualification for holding a particular post. This precisely is the dictum of the Apex Court. In paragraphs 25, 26 & 27 of the case reported in (2006) 8 SCC 42, Sanjay Kumar Manjul vs. Chairman, UPSC & Ors. the Apex Court has held as under:-
"25. The statutory authority is entitled to frame statutory rules laying down terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned who can take ultimate decision therefor.
26. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same.
27. It is well-settled that the superior courts while exercising their jurisdiction under Articles 226 or 32 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post."
37. Thus, for the post in question the Corporation alone is empowered to lay down the required qualifications for appointment to the post in question. The qualification prescribed under the Regulations, for the post in question is a B. Tech degree in Electrical Engineering and that is also the qualification mentioned in the advertisement dated 03.09.2013. In the present case, neither the Regulations nor the advertisement is under challenge. In these circumstances, this Court can only ensure that the appointments are made strictly in accordance with the terms and conditions of the advertisement.
38. In the case reported in (1990) 3 SCC 655, District Collector & Chairman, Viziangaram & anr. vs. M. Tripura Sundari Devi, M. Tripura Sundari Devi was appointed as a post graduate teacher in Hindi. Subsequently, at the time of scrutiny of certificates it was found that she was not qualified as per the advertisement and as such she was not allowed to join the services. The action of the petitioners before the Apex Court in not permitting M. Tripura Sundari Devi to join was upheld by the Apex Court. It was held that the appointment had to be made strictly as per terms of the advertisement and in case, the candidates who did not possess the qualification as mentioned in the advertisement were permitted to participate in the selection process, it -16- would be a fraud with the Public and no Court should be a party to the perpetuation of the fraudulent practice. Paragraph no. 6 of the said report runs as follows:
"6. It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact."
39. In a case reported in (2003) 3 SCC 541, P.M. Latha & Anr. vs. State of Kerala & Ors. as per the advertisement the candidates having educational qualification of Teachers Training Certificate (for short T.T.E.) were entitled to compete for the selection and seek appointment on the post of Teachers in Government Primary School. However, in the select list the B.Ed. Candidates were also included. As a result of which the candidates possessing the qualification of T.T.C. were excluded. Repelling the arguments advanced on behalf of the successful candidates that B.Ed. qualification was a higher qualification than T.T.C. and therefore, the B.Ed. Candidates should be held to be eligible to compete for the said post, the Apex Court in paragraph no. 13 of the said report has held as follows:
"13. Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot over-ride written or settled law. The division bench forgot that in extending relief on equity to B.Ed. candidates who were unqualified and yet allowed to compete and seek appointments contrary to the terms of the advertisement, it is not redressing the injustice caused to the appellants who were T.T.C. candidates and would have secured a better position in the Rank List to get appointment against the available vacancies, -17- had B.Ed. candidates been excluded from the selections. The impugned judgment of the division bench is both illegal, inequitable and patently unjust. The T.T.C. candidates before us as appellants have been wrongly deprived of due chance of selection and appointment. The impugned judgment of the division bench, therefore, deserves to be set aside and of the learned single judge restored."
40. Similarly, in the case reported in (2009) 4 SCC 555, Mohd. Sohrab Khan vs. Aligarh Muslim University & Ors. the submission made on behalf of the respondents in the said case that the Masters' degree in Industrial Chemistry was as good as Masters degree in Chemistry for the post for which the advertisement was issued and the person having Masters degree in Industrial Chemistry was better suited for teaching the said subject was not accepted by the Apex Court. It was held that the advertisement which was issued for filling up the post of Lecturer in Chemistry could not have been filled up by a person belonging to the subject of Industrial Chemistry when the same having been specifically not mentioned in the advertisement that a Masters Degree holder in the said subject would also be suitable for being considered. The Apex Court observed that there could have been intending candidates who would have applied for becoming candidate as against the said advertised post, had they known and were informed through advertisement that Industrial Chemistry is also one of the qualifications for filling up the said post. Paragraph nos. 11, 12, 23, 24 and 26 of the said case being relevant are being reproduced below:
"11. It was also submitted that the Masters Degree in Industrial Chemistry is as good as Masters Degree in Chemistry for the post for which the advertisement was issued and that a person having Masters Degree in Industrial Chemistry was better suited for teaching the said subject.
12. Learned counsel also invited our attention to the course contents which the teacher appointed to the said post was required to teach. Relying on the same, he submitted that a candidate having Masters Degree in Industrial Chemistry would have been better suited to teach the said subjects constituting the course contents.
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23. The post advertised was meant for a person belonging to the pure Chemistry Department for if it was otherwise, then it would have been so mentioned in the advertisement itself that a person holding a Masters Degree in Industrial Chemistry should only apply or that a person holding such a degree could also apply alongwith other persons. It was not so mentioned in the advertisement and therefore, except for Merajuddin Ahmad, no other degree holder in Industrial Chemistry had applied for becoming a candidate as against the aforesaid post.
24. According to us, the Selection Committee as also the University changed the rule in the midstream which was not permissible. The University can always have a person as a Lecturer in a particular discipline that it desires to have, but the same must be specifically stated in the advertisement itself, so that there is no confusion and all persons who could be intending candidates, should know as to what is the subject which the person is required to teach and what essential qualification the person must possess to be suitable for making application for filling up the said post.
26. The advertisement which was issued for filling up the post of Lecturer in Chemistry could not have been filled up by a person belonging to the subject of Industrial Chemistry when the same having been specifically not mentioned in the advertisement that a Masters Degree holder in the said subject would also be suitable for being considered. There could have been intending candidates who would have applied for becoming candidate as against the said advertised post, had they known and were informed through advertisement that Industrial Chemistry is also one of the qualifications for filling up the said post."
41. Sri Subhash Vidyarthi, has submitted that after the advertisement dated 17.12.2012 was published, a large number of candidates possessing B. Tech degree in Electrical & Electronics approached the help desk set up by the opposite party nos. 2 to 4 to enquire as to whether they were eligible for appointment on the post in question. All of them were replied in the negative. One such e-mail and the reply given by the opposite party nos. 2 to -19- 4 (annexed along with the counter affidavit) is being reproduced herein below:
GMail UPPCL Upsec
by Google
____________________________________________________________ ELEGIBILITY CRITERIA 2 messages ____________________________________________________________ amrita shrotiya To: [email protected] I COMPLETED MY BACHELOR IN TECHNOLOGY (B.TECH) IN ELECTRICAL AND ELECTRONICS BRANCH. I WANT TO APPLY FOR ASSISTANT ENGINEER (ELECTRICAL) POST PLEASE TELL ME BEING AN ELECTRICAL AND ELECTRONICS BTECH PASSED STUDENT, M I ELIGIBLE FOR THIS POST?
KINDLY REPLY ME AS SOON AS POSSIBLE REGARDS AMRITA SHROTRIA ____________________________________________________________ UPPCL Upsec Tue, Oct 22, 2013 at 2.30 PM "amrita shrotiya Dear candidate, You are not eligible for the post.
[Quoted text hidden] Regards Admin
42. Thus, there is no element of doubt, that there were intending candidates, possessing B. Tech degree in Electrical & Electronics, who would have applied for appointment to the post in question, had they known or were informed through advertisement that the candidates possessing B. Tech degree in Electrical & Electronics were also eligible for appointment on the post in question. In the circumstances, the post in question cannot be ordered to be filled up by candidates having B. Tech degree in Electrical & Electronics. In case such a direction is issued, it would not only be a fraud on the public but it would also deprive a large number of candidates possessing B. Tech degree in Electrical, who are candidates for appointment on the post in question, due chance of selection and appointment. This court cannot be a party to any fraud.
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43. It is neither the case of the petitioners nor there is any evidence on record to establish that the B. Tech degree in Electrical & Electronics possessed by the petitioners has been recognized to be equivalent to the B. Tech degree in Electrical by the State Government.
44. It is so well settled that the appointment has to be made strictly in accordance with the qualification prescribed in the advertisement. Admittedly, the petitioners do not possess the degree of B. Tech Electrical as prescribed in the advertisement and are thus not qualified for appointment to the post in question. Even if, it is held that the qualification of B. Tech Electrical and Electronics is equivalent to B. Tech Electrical as has been canvassed vehemently on behalf of the petitioners , the petitioners cannot be permitted to participate in the selection on the simple reasoning that a large number of the candidates possessing the degree of B. Tech Electrical and Electronics like the petitioners must not have applied in view of the terms of the advertisement. Merely because the petitioners have approached this Court, the opposite parties cannot be directed to consider the candidature of the petitioners for the post in question. In case it is done it would be fraud on public which cannot be perpetuated by this Court.
45. The answer to the second submission of the learned counsels for the petitioner is also in the negative.
46. This brings us to the third and the last submission made on behalf of the petitioners.
47. Complete answer to the third and last submission made by the learned counsel for the petitioners is to be found in paragraph 8 of a case reported in (2003) 3 SCC 548, Yogesh Kumar & Ors. vs. Govt. of NCT, Delhi & Ors. Paragraph 8 of the said report is reproduced below:
"8. This last argument advanced also does not impress us at all. Recruitment to Public Services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the Rules allows entry to ineligible persons and deprives many others who could have competed for the post. Merely because in the past some deviation and departure was made in considering the B.Ed. candidates and we are told that was so done because of the paucity of TTC candidates, we cannot allow a patent illegality to continue. The -21- recruitment authorities were well aware that candidates with qualification of TTC and B.Ed. are available yet they chose to restrict entry for appointment only to TTC pass candidates. It is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. So far as B.Ed. qualification is concerned, in the connected appeals [CA No. 1726-28 of 2001] arising from Kerala which are heard with this appeal, we have already taken the view that B.Ed. qualification cannot be treated as a qualification higher than TTC because the natures of training imparted for grant of certificate and degree are totally different and between them there is no parity whatsoever. It is projected before us that presently more candidates available for recruitment to primary school are from B.Ed. category and very few from TTC category. Whether for the aforesaid reasons, B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates for the present vacancies advertised as eligible. In our view, the division bench of the Delhi High Court was fully justified in coming to the conclusion that B.Ed. candidates were rightly excluded by the authorities from selection and appointment as primary teachers. We make it clear that we are not called upon to express any opinion on any B.Ed. Candidates appointed as primary teachers pursuant to advertisements in the past and our decision is confined only to the advertisement which was under challenge before the High Court and in this appeal."
48. On a conspectus of the case in hand it is apparent that the respondents were fully aware that the candidates possessing B. Tech degree in Electrical and B. Tech degree in Electrical & Electronics were available, yet the qualification prescribed under the Regulations for appointment on the post in question was B. Tech degree in Electrical and the same is the qualification mentioned in the advertisement. It is for the authorities to lay down the qualification for and the Court cannot direct the authorities to prescribe a particular qualification. The Courts are there to ensure that the appointments are made strictly as per terms and conditions of the advertisement. Merely because in the past there was some deviation and -22- departure and some illegal appointments were made, a patent illegality cannot be permitted to continue. This Court would not perpetuate the illegality by directing the opposite parties to make appointments contrary to the prescribed qualification.
49. The answer to third submission made by the learned counsel for the petitioners is also in the negative.
50. All the writ petitions, are thus, devoid of merit and are accordingly dismissed but in the circumstances without any order as to cost. Order Date: 17.10.2014 Deepak.
Delivered under Chapter VII, Rule 1 (2) of Allahabad High Court Rules.
Order Date: 17.10.2014 Deepak.