Allahabad High Court
Vivek Kumar Singh vs State Of U.P. And 2 Others on 25 November, 2020
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 81 Case :- WRIT - A No. - 6556 of 2020 Petitioner :- Vivek Kumar Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- R.P.S. Chauhan,Nagendra Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner, learned Standing Counsel and Sri Mrityunjay Tiwari for the U.P. Secondary Education Service Selection Board.
The petitioner has participated in a recruitment exercise initiated by the respondents for appointment of Lecturers in Economics. Although he cleared the written examination he was not permitted to participate in the interview by the Board. The objection with respect to the petitioner's candidature which appears to have been taken into account by the respondents was that the petitioner was not holding the essential qualification for the post as prescribed in the Regulations framed under the U.P. Intermediate Education Act 1921. It becomes pertinent to note here that those Regulations prescribed the essential qualifications for Lecturers in Economics as follows:-
"अर्थशास्त्र अध्यापक (कक्षा 11-12 के लिए) (1) एम. ए. (अर्थशास्त्र) अथवा (2) एम काम तथा अर्थशास्त्र सहित बी. काम.
अथवा (3) त्रिवर्षीय पाठ्यक्रम सहित अर्थशास्त्र में बी. ए."
The petitioner holds a M.A. degree in "Applied and Regional Economics" conferred by the Rohilkhand University. Learned counsel for the petitioner submits that while the nomenclature of the course may be different from that which finds mention in the Regulations, the content of the two courses is the same and consequently the decision of the respondents to deny the petitioner a right to participate in the interview is illegal. In support of this submission, he has also relied upon a certificate issued by the University appearing at page 36 of the paperbook.
On the other hand, Sri Tiwari submits on the basis of instructions which have been received, that since the petitioner did not possess the essential qualifications as prescribed under the Regulations he was not permitted to participate in the interview. He further submits that no decision has been taken pursuant to which it may be contended that a M.A. degree in "Economics" and "Applied and Regional Economics" is the same or equivalent.
The question which consequently falls for determination is whether this Court would be justified in undertaking an exercise to evaluate the equivalence of the two degrees or for that matter entering a declaration in that respect.
Dealing with the aforesaid issue, this Court in Asheesh Kumar Vs. State of U.P. [Writ A No. 6083 of 2020 decided on 11 November 2020] had an occasion to notice the question of equivalence of degrees and the scope of judicial review in that regard. Upon noticing the decisions rendered by the Supreme Court as well as the Full Bench of the Court, it held:-
"That leaves the Court to consider the submission of it embarking upon an exercise to declare a degree in General English to be equivalent to the essential qualifications enumerated in the advertisement. The submission which is commended for acceptance would clearly amount to undertaking an exercise which would be legally impermissible and transgress the inherent limitations recognized by Courts while exercising their powers of judicial review as explained hereinafter.
The correctness of the submission advanced would essentially have to be tested bearing in mind the following cardinal principles. The prescription of a qualification is essentially and primarily a role reserved for the employer. It is not for this Court while exercising its jurisdiction under Article 226 of the Constitution to arrogate to itself that function. Similarly, it is neither the function nor the role of the Court to adjudge or assess the suitability or desirability of a particular qualification that may be stipulated. Lastly, it is not for Courts to assume upon themselves the authority to delve into questions of equivalence of degrees and educational qualifications. That function must necessarily stand reserved for the experts in the field namely the academicians.
The Supreme Court in Zahoor Ahmad Rather Vs. Imtiyaz Ahmad reiterated these settled principles holding:
"26. ...... 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."
A similar note of restraint was entered in Maharashtra Public Service Commission Vs. Sandeep Shriram Warade
9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being on a par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same."
More recently three learned Judges of the Supreme Court in Punjab National Bank Vs. Anit Kumar Das observed:-
"21. Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications......"
The principles enunciated in Zahoor Ahmad and Maharashtra Public Service Commission were reiterated by a Full Bench of the Court in Deepak Singh Vs. State of U.P. where it observed:-
"52. Now we proceed to deal with the reference in the case of Himani Singh v. State of U.P., the advertisement in question prescribed the qualification of Graduate in Commerce ''O' level Diploma issued by any Government Recognised Institution. The petitioners were non-suited as they hold a Post-Graduate Diploma in Computer Application. Thus, the claim of the petitioners, before the learned Single Judge, was that their qualifications are superior to the prescribed qualification i.e. ''O' level Diploma in Computer Application. In the said case, the Uttar Pradesh Subordinate Services Selection Commission, Lucknow had issued a Notification on 27.8.2018 notifying that the ''O' level Diploma in Computer Application had been specified as essential eligibility qualification and it further provided that there does not exist any Government Order specifying the equivalent of qualification with ''O' level Diploma in Computer Operation and that National Institute of Electronics and Information Technology (hereinafter referred to ''NIELIT'), earlier DOEAC Society had informed that apart from NIELIT no other institution was authorized to grant ''O' level Certificate in Computer Operation. The learned Single Judge, in his judgement dated 04.12.2018, rejected the contention of the petitioners therein relying upon the earlier decision of the learned Single Judge in Civil Misc. Writ Petition No. 19687 of 2018 (Yogendra Singh Rana v. State of U.P.). While dismissing the said writ petition, learned Single Judge held that the assessment with regard to the suitability of the higher qualification with a higher proficiency in the field of Computer Operation is in the field of policy and would not justify interference by the Writ Court. Before the Special Appeal Court, the petitioners had argued that the judgement of the Yogendra Rana (supra) is subject matter of pending appeal in which interim order has also been passed. It was thus argued before the Special Appeal Court that in view of decision in the case of Jyoti K.K. (supra) and Parvez Ahmad Parry (supra), the matter requires to be considered by the larger Bench that is how the matter was referred vide order dated 15.2.2019.
53. In view of the facts in the case, it is clear that there was no clarification/notification by the State Government providing for equivalence of any other qualification as equal to ''O' level Diploma in Computer Application. There being no material on record either before the learned Single Judge or before us to show that qualification possessed by the petitioners was in the same line of progression and also there being no material on record to show that the entire syllabus as is prescribed for grant of ''O' level Diploma in Computer Application was also the syllabus studied by the students for grant of Post Graduate Diploma in Computer Application (hereinafter referred to ''PGDCA'). In view of the said facts, we record that the degree PGDCA does not pre-suppose the qualification of ''O' level Computer Operation as is awarded by NIELIT."
As a result of the aforesaid discussion, the Court is of the considered view that the petitioners holding a degree in General English were clearly not qualified to participate in the recruitment process. The mere fact that on earlier occasions holders of such a degree were possibly permitted to participate in selection or came to be appointed as TGT teachers can neither erase the evident ineligibility of the petitioners here in light of the plain language employed in the advertisement nor can that mistake or error on the part of the respondents confer on them a positive right to move further in the selection process. The plea of discrimination advanced in that respect as noted above is clearly misconceived. A mistake or illegality committed in the past cannot constitute a ground for extending benefit or relief to the petitioners who are otherwise ineligible. Selection in respect of public employment must be tested strictly in accordance with the command of Articles 14 and 16 of the Constitution. The Court has no hesitation in holding that the acceptance of such a plea would be wholly contrary to the letter and spirit of those constitutional provisions.
For all the aforesaid reasons, the Court finds the petitioners disentitled to any relief. The writ petition stands dismissed."
It is thus manifest that it would clearly be beyond the province of this Court to either examine or hold that the qualification held by the petitioner is the same or equivalent to what was prescribed in the advertisement. The Court has also not been apprised of any decision taken by the respondents in terms of which the qualification held by the petitioner may have been recognised as being in compliance with the prescriptions placed in the relevant Regulations. Accordingly and for the aforesaid reasons, the Court finds no merits in the present petition which shall stand dismissed.
Order Date :- 25.11.2020 LA/-