Jammu & Kashmir High Court
Ramnik Singh Aged 30 Years Son Of S vs Respondent(S) on 6 November, 2023
Author: Sanjeev Kumar
Bench: Sanjeev Kumar, Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C ) No.2406/2021
Reserved on 15.09.2023
Pronounced on 06.11.2023
1. Ramnik Singh aged 30 years son of S. ..... petitioners (s)
Bhajan Singh resident of Ward No. 3 House
No. 103 Near Dak Bangalow, Poonch.
2.Riyaz Ahmad Malik aged 32 years son of
Mohd Amin Malik resident of Lurgam Tehsil
Tral Pulwama at present House No. 217
Sector 2 Palli Hill Colony Channi Rama
Jammu
Through :- Mr. Ravi Abrol Advocate
V/s
.....Respondent(s)
1 . UT of Jammu and Kashmir th. Financial Commissioner Health and Medical
Education Department Civil Secretariat Jammu
2. Principal, GMC, Rajouri.
3.Principal, GMC, Anantnag.
4. J&K Service Selection Board Sehkari Bhawan Jammu
5. Chairman, J&K Service Selection Board, Sehkari Bhawan Jammu
6. Anies Ahmad son of Shabir Ahmad resident of Badhoon near Jamola Bridge
Rajouri
7. Junaid Ahmad Baba son of Ali Mohd Baba resident of Shrine Dastigeer
Sahib Srinagar South Srinagar.
Through :- Mr. Raman Sharma AAG
Mr. Abhinav Sharma Sr. Advocate
with Ms. Saba Atiq Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
2
JUDGMENT
Sanjeev Kumar J.
1 This petition by the petitioners filed under Article 226 of the Constitution of India is directed against an order and judgment dated 25.10.2021 passed by the Central Administrative Tribunal, Jammu Bench, Jammu in T.A No. 61/606/2020 titled „Ramnik Singh vs UT of Jammu and Kashmir and others, whereby the T.A. filed by the petitioners herein challenging the selection of respondent Nos. 6 and 7 as Audio-visual Technician/Technician in Audio-visual Aids in Government Medical College, Rajouri and as Telephone Supervisor as well as Audio-visual Technician in GMC, Anantnag respectively has been dismissed.
2 Before we advert to the grounds of challenge urged by learned counsel for the petitioners in support of their petition, we deem it appropriate to give brief resume of the factual antecedents leading to filing of this petition. 3 Pursuant to a requisition received from respondent Nos. 1 to 3, the respondent No.4 issued two Advertisement Notices in the year 2019. Advertisement Notice No.03/2019/001 to 03/20/401 dated 01.02.1919 was pertaining to the selection of various non-gazetted posts borne on Divisional cadre Jammu of Government Medical College, Rajouri. Amongst the posts notified for selection for GMC, Rajouri, one post of Audi-visual Technician/Technician in Audi-visual Aids, Photographer and Artist (item No.
25) under open merit category and one post of Telephone Supervisor under open merit category (item No. 38) were also included. Similarly, for Government Medical College, Anantnag, Advertisement Notification No. 01/2019/001 to 01/2019/041 dated 01.02.2019 was issued by respondent No.4 for making selection to various posts which included one post of Audi-visual 3 Technician/Technician in Audio-visual Aids under open merit category (item No.25) and one post of Telephone Supervisor under open merit category (item No.38). As per the Advertisement Notifications, following was the qualification prescribed for the posts in question:
Name of the post Prescribed qualification
Audi-visual Diploma in Electronic
Technician/Techn and Communication
ician in Audio from any recognized
Visual Aids, institute
Photograph and
Artist
Telephone Diploma in Electronic
supervisor and Communication
from any recognized
institute.
4. Apart from various terms and conditions of the Advertisement Notifications (supra), some of the salient conditions laid down therein are relevant and are, therefore, set out here-in-below:
1 (i) Online applications are invited from the eligible candidates for participating in the selection process for Divisional cadre posts shown against unique Advertisement numbers mentioned in the Annexure "A" to this notification;
(ii)........................................................................
(iii)...are in possession of the prescribed academic/professional/technical qualifications as shown in the Annexure "A" by or before the last date of submission of application forms i.e 27.02.2019
2. (i)..........
(ii)................
(iii)............
(iv.................
(v).................
4
(vi)...............
(vii)...........
(viii).............
(ix).......
(x).........
(xi) Candidate need to click on Clock Here to apply link to apply for the advertisement.
(xii). On clicking on Clock here to apply link, system checks candidate‟s eligibility with respect to eligibility criteria required for the advertisement. If candidate does not fulfill eligibility, appropriate message of ineligibility will be displayed by system.
(xiii) Only the Application of candidate fulfilling eligibility conditions as per the profile submitted by the candidates will be accepted by system.
(xiv)................................................
(xv)................................................. (xvi).............................................. (xvii).....................................
(xviii)............................................. (xix)........................................... (xx).......................................
(xxi)........................................
(3)............................................. (4)...................................
(5). The prescribed qualifications reflect the bare minimum requirement of the job and mere possession thereof shall not entitle a candidate to be called for different stages of selection process.
(6.)...................................
(7).....................................
(8)......................................
(9)....................................
(10).....................................
(11)...................................
5
(12).........................................
(13).......................................
(14)........................................
5. The petitioners herein, who were possessing qualification of Bachelor‟s Degree in Electronics and Communication, submitted their separate applications for the posts of Audio-visual Technician/Technician in Audio Visual Aides, Photograph and Artist and Telephone Supervisor under open merit category for Government Medical College, Rajouri and Government Medical College, Anantnag. The applications submitted through online mode were entertained by respondent No.4 and the petitioners along with other eligible candidates including respondent Nos. 6 and 7 were permitted to participate in the written examination which was held on 04.07.2019. Both the petitioners qualified the written test and were shown in the final list of shortlisted candidates issued by the respondent no.4 The petitioner No.1 figured at S.No.4 in the said list for the post of Audio-visual Technician/Technician in Audio-visual Aids, Photograph and Artist (item No.25) as well as the in list of candidates shortlisted for the post of Telephone Supervisor ( item No.38). Similarly, petitioner No. 2 figured at S.No.1 in the list of candidates shortlisted for the posts of Audio-visual Technician/Technician in Audio visual Aids, Photograph and Artist (item No.
25) and as well as in the list of candidates shortlisted for the posts of Audio- visual Technician/Technician in Audio visual Aids, as well as in the list of candidates shortlisted for the posts of Telephone Supervisor (item No.38) for GMC Anangnag.
6 Since the process of selection did not prescribe any viva voce or interview and, therefore, the list of shortlisted candidates was finalized and the 6 same was published on the website of the respondent-Board on 25.02.2020. Respondent No.6 was indicated to have been selected for the post of Audi- Visual Technician/Technician in Audio visual Aids, Photograph and Artist (item No.25) for GMC Rajouri, whereas, respondent No.7 was shown to have been selected for the post of Audi-Visual Technician/Technician in Audio visual Aids, Photograph and Artist (item No.38) for GMC, Anantnag. Both the petitioners, however, did not find their name in the final select list. As is pleaded, the petitioners, on enquiry, were informed that they could not be selected and placed in the final select list because of their ineligibility to hold the posts.
7 Feeling aggrieved by their non-selection and declaration of their candidature as ineligible, the petitioners filed a writ petition before this Court which was later on transferred to the CAT on coming into operation of the J&K Re-organization Act, 2019. Before the Tribunal, a short point was urged by the petitioners that they being Bachelor‟s in Electronics and Communication cannot be held ineligible for the twin posts in question, for, the Degree in Electronics and Communication presupposes the acquisition of Diploma in Electronics and Communication which, as per the Advertisement Notifications, is a minimum prescribed qualification for the posts in question. 8 The writ petition was contested by the official as well as the private respondents. In the objections filed by respondent Nos. 4 and 5, the claim of the writ petitioners was contested on the ground that the prescribed qualification for the posts in question was "Diploma in Electronics and Communication" and that both the petitioners possessing the qualification of Degree in Electronics and Communication were not holding the prescribed qualification and, therefore, ineligible to participate in the selection process or 7 for appointment to the notified posts in questions. To the plea of the petitioners that they with their qualification as Degree in Electronics and Communication were allowed to participate in the selection process without any objection, the reply of respondent No.4 and 5 was that the participation of a candidate in the written test or interview or the fact that his name appears in the merit list would not alter the situation and make an ineligible candidate as eligible for the post. 9 The selected candidates i.e respondent Nos. 6 and 7 also filed their objections and took a similar stand before the Tribunal. They, however, brought out in their objections that the petitioners, by suppression of material information and providing wrong information succeeded in uploading their online application forms, though they did not possess the eligibility qualification. It was, thus, submitted that the mere fact that the petitioners succeeded in participating in the selection process by withholding of relevant information/ uploading wrong information, disentitles them to claim estopple against the selection body, nor can they be heard by the Court exercising equitable jurisdiction.
10. The matter was considered at length by the Tribunal. The Tribunal, relying upon the judgments of Hon‟ble the Supreme Court in the cases of University of Mysore and Another vs. C.D.Govinda Rao, AIR 1965 SC 491, J. Ranga Swamy vs Government of Andhra Pradesh and others, (1990) 1 SCC 288, Official Liquidator vs Dayanand and others (2008) 10 SCC 1, Zahoor Ahmad Rather vs Sheikh Imtiyaz Ahmad (2019) 2 SCC 404, Yogesh Kumar vs. Government of NTC, Delhi (2003) 3 SCC 548, Puneet Sharma vs Himachal Pradesh State Electricity Board Limtied, AIR 2021 SC 2221, concluded that prescription of a particular qualification is a matter of recruitment policy and, therefore, it is for the employer to prescribe 8 a particular qualification as a condition of eligibility. Once the qualification prescribed by the employer is clear and unambiguous, it is no part of the role or function of the judicial review to expand upon the ambit of the prescribed qualifications. The Tribunal, thus, held that in the instant case, for both the posts in question, the prescribed qualification was Diploma in Electronics and Communication and, therefore, it was not open for the Court to add to or subtract from or read into any qualification other than the prescribed. The claim of the petitioners that they being Degree-holders in Electronics and Communication shall be deemed to possess the prescribed qualification of Diploma in Electronics and Communication, was rejected. The petition was, accordingly, dismissed vide judgment which is impugned in this petition.
11. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the decision of this writ petition turns on the determination of following issue:
"Whether a Degree in Electronics and Communication is a higher qualification in the same line than the Diploma in Electronics and Communication and, therefore, acquisition of degree qualification presupposes the acquisition of Diploma qualification in the same line"
12 The issue that has cropped up for determination in this petition is not free from difficulties, for, there are several judgments of the Hon‟ble Supreme Court pronouncing on the same issue, though in the context of different fact situations. There is no denial of the fact that the law is well settled that it is not for the Court to lay down qualification for the post. The prescription of qualification, as is held in the case of Zahoor Ahmad Rather (supra), is a matter of recruitment policy and the State as the employer is entitled to prescribe a particular qualification as a condition of eligibility. Undoubtedly, the State is entrusted with the authority to assess the needs of its 9 public services and, therefore, it clearly fall within the domain of administrative- decision making as to what qualification should be laid down for a particular post having regard to the nature of job associated with the post and other socio-economic perspectives. Having said that, we do not want to survey the case law on the aforesaid point in issue. However, for the purpose of discussion on hand, we first need to determine as to what is the qualification prescribed for the posts in question. Apparently, looking at the Advertisement Notification(s), the prescribed qualification is „Diploma in Electronics and Communication'. Whether the prescribed qualification is the fixed qualification, leaving no room for a candidate with the higher qualification in the same line to apply for the post, is a question to be pondered over. Be it noted that the Government order prescribing qualifications does not put any embargo on the candidates possessing qualification higher than the prescribed minimum qualification.
13. Indisputably, with the creation of various Medical Colleges in the Union Territory of Jammu and Kashmir in addition to the Government Medical College, Jammu and GMC,Srinagar, several posts, both in the gazetted and non-gazetted cadre have been created. As is usual with the Government, the process of selection for the posts in the newly established Medical colleges has been taken up on war footing without, however, making any effort to notify the statutory recruitment rules. To fill up the gap created by non-issuance of statutory rules, the Administrative Department i.e the Department of Health and Medical Education vide Government Order No. 680-HME of 2018 dated 10.12.2018 has laid down the minimum qualifications prescribed for direct recruitment in respect of certain categories of non-gazetted/class-IV posts created in the newly established Government Medical Colleges-Anantnag, 10 Doda, Baramula,Rajouri and Kathua. The operative portion of the Government Order dated 10.12.2018 (supra) is set out below:
"Now, therefore, in partial modification of Government Orders No. 130-HME of 2018, 131-HME of 2018, 132-HME of 2018, 133-HME of 2018 and 134-HME of 2018 dated 19.02.2018, the minimum qualification prescribed for direct recruitment in respect of certain categories of non- gazetted/class- IV posts as contained in Schedule -II annexed to these Government Orders is hereby modified/revised and recast as per the details given in Annexure-A to this Government Order."
14 The posts in question figure at S.No.30 and 60 of Schedule-II. Going strictly by the Government Order No. 680-HME of 2018 (supra), it is abundantly clear that the qualification prescribed for the twin posts in question i.e Diploma in Electronics and Communication is the minimum qualification prescribed for the posts meaning thereby a person having a qualification higher than the minimum, cannot be held ineligible and debarred from participating in the selection process, provided the qualification higher than the minimum is also in the same line.
15 It is true that, in the absence of any material on record, it would be difficult for a Court to come to a conclusion that the Degree in Electronics and Communication is a qualification higher than the minimum prescribed qualification i.e Diploma in Electronics and Communication and is in the same line. We will, however, advert to this aspect a little later and find our answer on the basis of material, if any, on record. Suffice it to say that the Tribunal has not gone into this aspect of the matter. We make it clear that if, we ultimately come to a conclusion that the Degree in Electronics and Communication is a qualification in the same line and higher than the minimum prescribed qualification i.e Diploma in Electronics and Communication, then we have no doubt in mind that the qualification possessed by the petitioners herein 11 presupposes the acquisition of Diploma in Electronics and Communication and, therefore, they cannot be declared ineligible to hold the posts in question.
16. Before we advert to the aforesaid aspect of the matter, we need to clear the mist surrounding the legal issue determined by the Tribunal in the light of various judgments of the Supreme Court. Needless to say that the judgment in each case even on a question of law has invariably turned on the factual matrix presented in the case decided by the Court. The issue, as to whether a higher qualification presupposes the acquisition of minimum prescribed qualification, cropped up for discussion before the Hon‟ble Supreme Court in P.M. Latha vs State of Kerala and others, (2003) 3 SCC 541. The issue that was raised in said case was; whether the qualification „Trained Teachers Certificate‟ (TTC) required for the post of Primary School Teachers in the School Education Department of State of Kerala, would be included in the qualification of B.Ed. held by some of the aggrieved candidates who were declared ineligible to participate in the selection process for the aforesaid posts.
17. The Supreme Court, after analyzing the issue in the context of material on record, concluded that the B.Ed. qualification could not be considered as a higher qualification than TTC given the fact that TTC qualification was a distinct requisite qualification imparted to teach the small children (primary classes), whereas the qualification of B.Ed. was a training imparted to educate the students of higher classes. In a nutshell, the qualification of B.Ed. was not held to be a qualification higher than the qualification of TTC in the same line. This view was reiterated by the Supreme Court in the case of Yogesh Kumar (supra) which again was a case in respect of qualifications of TTC and B.Ed. Jyoti K.K. vs. Kerala Public Service Commission (2010) 5 SCC 596 is a judgment of the Supreme Court which is 12 mostly relied upon by the aggrieved candidates holding higher qualifications like Degree in Engineering, who are not allowed to participate in selection for the posts prescribing „Diploma‟ as a minimum qualification. Though the Hon‟ble Supreme Court, inter alia, rendered the judgment in the context of Rule 10 (a) of the relevant Recruitment Rules, yet the proposition of law that was laid down in the case of Jyoti K.K.(supra) case was that a qualification of Degree in Engineering in a particular discipline presupposes the acquisition of lower qualification of Diploma in the same line and, therefore, even where the minimum prescribed qualification is Diploma in particular line of Engineering, a person possessing Degree in the same line cannot be held ineligible to apply for the post. This judgment was, however, distinguished in the case of State of Punjab vs. Anita and others, (2015) 2 SCC 201, though the case was entirely different from the present one. In Anita's case (supra), the Court was concerned with recruitment to the posts of JBT/ETT Teachers for which the minimum qualification prescribed was two years in Junior Basic Teacher training course and those with the higher qualifications, like B.Ed/M.A.M.Sc/M.Com. etc. were held ineligible.
18 The Supreme Court, having regard to the nature of job required to be performed for teaching primary classes, came to the conclusion that the higher qualifications like B.Ed. was not a qualification presupposing the acquisition of two years junior basic teachers training (JBT) which was entirely a different training meant for achieving different objective. Similarly, Zahoor Ahmad Rather's case was also distinguishable on its facts. In Zahoor Ahmed Rather's case (supra), the post in question was Technician-III in the Power Development Department for which the qualification prescribed was Matric with ITI in the relevant trade. The J&K Service Selection Board held 13 that the candidates possessing Diploma in Electrical Engineering were ineligible. The aggrieved Diploma holders went to the Court and the matter ultimately landed before the Supreme Court. What was held by the Supreme Court is reproduced hereunder:
"Under the above provisions as well as in the advertisement which was issued by the Board, every candidate must possess the prescribed academic/professional/technical qualification and must fulfil all other eligibility conditions. The prescribed qualifications for the post of Technician-III in the Power Development Department is a Matric with ITI in the relevant trade. The Board at its 116th meeting took notice of the fact that in some districts, the interviews had been conducted for candidates with a diploma in Electrical Engineering while in other districts candidates with a diploma had not been considered to be eligible for the post of Technician-III. Moreover, candidates with an ITI in diverse trades had also been interviewed for the post. The Board resolved at its meeting that only an ITI in the relevant trade namely the Electrical trade is the prescribed qualification specified in the advertisement".
19. Apart from the judgments to which reference is made by us hereinabove, there is plethora of case law dealing with the issue in the context of fact situations presented in each case. The position of law which, we can say with some amount of certainty, shall have universal application, is clearly laid down in Jyoti K.K's case (supra) and followed in the recent judgment of the Supreme Court in the case of Puneet Sharma (supra) .
20 The Supreme Court has surveyed the entire case law on the issue and the factual context in which the judgments in each case have been rendered by the Supreme Court and has concluded that where State as an employer prescribes a particular minimum qualification for the post, the candidates possessing qualification higher than the prescribed minimum qualification, are eligible, provided the higher qualification is in the same line. In other words, if the higher qualification possessed by a candidate presupposes the acquisition of 14 lower qualification in the same line, such candidate cannot be held ineligible for the post on the ground that it does not possess the minimum prescribed qualification. It would be complete fallacy and contradiction to say that the candidate possesses a higher qualification which presupposes the acquisition of the prescribed minimum qualification, but does not possess the „prescribed qualification‟. In such situation, the Courts may not be required to substitute or read into a qualification other than the one prescribed .However, such finding can be returned by a Court only when there is sufficient material on record to indicate that the higher qualification claimed by a candidate to participate in the selection process, is in the same line as is the prescribed minimum qualification. Before we look for the material available on record to come to such a conclusion in the instant case, we are also required to deal with two other aspects highlighted by learned counsel for the respondents, which are as under:
(i) to cull out the correct ratio of the judgment in Puneet Sharma‟s case (supra); and,
(ii) the misrepresentation, if any, made by the petitioners while submitting their online application forms which allowed them to participate in the selection process.
21 So far as the judgment in Puneet Sharma's case is concerned, the Supreme Court, having regard to the Recruitment Rules for Himachal Pradesh Electricity Board which made no distinction between Diploma and Degree qualification in Electrical Engineering/Electrical and Electronics Engineering held in Paragraphs (31) to (38) as follows:
"31. This Court is conscious that the issue in question is whether the minimum qualification of a diploma in electrical or electronic engineering or other prescribed qualifications includes a degree in that discipline. However, the rules have to be considered as a whole. So viewed, the two sub-quotas are:15
(1) 5% enabling those diploma holders who acquire degree qualifications during service as Junior Engineers; and (2) 5% enabling among those who hold degrees before joining as Junior Engineers;
32. The latter (2) conclusively establishes that what the rule making authority undoubtedly had in mind was that degree holders too could compete for the position of JEs as individuals holding equivalent or higher qualifications. If such interpretation were not given, there would be no meaning in the 5% sub-quota set apart for those who were degree holders before joining as Junior Engineers- in terms of the recruitment rules as existing.
33. The court's opinion is fortified by the latest amendment brought about on 03.06.2020. This clarifies beyond doubt that even for the post of Junior Engineers, those individuals holding higher qualifications are eligible to compete. In the opinion of this Court, though the amending rules were brought into force prospectively, nevertheless, being clarificatory, they apply to the recruitment that is the subject matter of the present controversy. Such a position (i.e. clarificatory amendments operative retroactively, despite their enforcement prospectively) has been held in several previous judgments of this court. In Zile Singh v. State of Haryana, this Court examined the various authorities on statutory interpretation and concluded:
"13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the Rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only ' Nova Constitutio Futuris Formam Imponere Debet, Non Praeteritis' a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh. It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole.
14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, 16 therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is 'to explain' an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect.
34. In Vijay v. State of Maharashtra16, this court held as follows:
"12. The appellant was elected in terms of the provisions of a statute. The right to be elected was created by a statute and, thus, can be taken away by a statute. It is now well settled that when a literal reading of the provision giving retrospective effect does not 15(2004) 8 SCC 1 16(2006) 6 SCC 289 produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. The appellant does not and cannot question the competence of the legislature in this behalf.
35. Likewise, in Manish Kumar v Union of India17, it was held that:
"Declaratory, clarificatory or curative Statutes are allowed to hold sway in the past. The very nature of the said laws involve the aspect of public interest which requires sovereign Legislature to remove defects, clarify aspects which create doubt. The declaratory law again has the effect of the legislative intention being made clear. It may not be apposite in the case of these Statutes to paint them with the taint of retrospectivity."
36. It would also be relevant to notice that in the appeal, it has been specifically averred that the HPSEB has been making contractual appointments from amongst degree holders in the cadre of Junior Engineers, and that an order was issued upon the recommendation of the Screening Committee, which through its 17 meeting held on 11.04.2018 had cleared the regularization of 28 such candidates. These degree holders are equivalent to Junior Engineers, and had been working for periods ranging between 4 to 6 years. A copy of that order has been produced as Annexure P- 10 in the Special Leave Petition.
37. The considerations which weighed with this court in the previous decisions i.e. P.M. Latha, Yogesh Kumar, Anita (Supra) were quite different from the facts of this case. This court's conclusions that the prescription of a specific qualification, excluding what is generally regarded as a higher qualification can apply to certain categories of posts. Thus, in Latha and Yogesh Kumar as well as Anita (supra) those possessing degrees or post- graduation or B.Ed. degrees, were not considered eligible for the post of primary or junior teacher. In a similar manner, for "Technician-III" or 17(2019) 8 SCC 416 18 SLP (C) 10533-37 of 2020 lower post, the equivalent qualification for the post of Junior Engineer i.e. diploma holders were deemed to have been excluded, in Zahoor Ahmed Rather (supra). This court is cognizant of the fact that in Anita as well as Zahoor (supra) the stipulation in Jyoti (supra) which enabled consideration of candidates with higher qualifications was deemed to be a distinguishing ground. No such stipulation exists in the HPSEB Rules. Yet, of material significance is the fact that the higher post of Assistant Engineer (next in hierarchy to Junior Engineer) has nearly 2/3rds (64%) promotional quota. Amongst these individuals, those who held degrees before appointment as a Junior Engineers are entitled for consideration in a separate and distinct sub-quota, provided they function as a Junior Engineer continuously for a prescribed period. This salient aspect cannot be overlooked; it only shows the intent of the rule makers not to exclude degree holders from consideration for the lower post of Junior Engineers.
38. As noticed previously, in addition to the above considerations, an amendment to the rules was made on 03.06.2020 declaring that those with higher qualifications are also entitled to apply or be considered for appointment. This amendment was brought in to clear all doubts and controversies and, in that sense, the amending provisions should be deemed to have been inserted from inception".
22. The observations made and the conclusions drawn in the aforesaid paras clearly fortify the legal position which we have brought out in our discussion hereinabove.
18
23. In view of the clarity of legal position arrived at by us with the support of judgment rendered in Puneet Sharma's case (supra), we now venture to allude to some of the salient features of the instant case which go a long way to fortify our conclusion that, in the instant case, the Degree in Electronics and Communication clearly presupposes the acquisition of Diploma in Electrical and Communication which is the prescribed qualification indicated in the Advertisement Notifications in question. These are as under:
(i) That the Advertisement notifications have been issued pursuant to a formal requisition made by the Department of Health and Medical Education for making selection strictly in terms of the recruitment norms. In absence of statutory recruitment rules, the Department of Health and Medical Education has laid down recruitment norms by issuing an Executive order i.e Government Order No. 680/HME of 2018.
The qualification prescribed for various posts included in Annexure-A of the Government order are the minimum qualifications prescribed for direct recruitment in respect of such posts. The prescription of qualification in the Government order is, therefore, required to be read into the Advertisement Notifications. If we do so, the irresistible conclusion would be that the qualification of Diploma in Electronics and Communication prescribed for the posts in question is the minimum prescribed qualification and not the only prescribed qualification;
(ii) The same employer i.e the Government of Jammu and Kashmir in the Department of Health and Medical Education has, by issuance of Government Order No. 456-JK (HME) of 2023 dated 02.06.2023 laid down minimum qualification in respect of non-gazetted and class-IV posts for Government Medical College, Srinagar and for the posts of Telephone operators, the minimum qualification prescribed for direct recruitment is 10+2 or above with Diploma/Degree in Electronics and Communication from any recognized institute. Interestingly, the post of Telephone Supervisor in GMC, Srinagar is a promotional post, to be filled up from the post of Telephone Operator. It clearly indicates that the employer i.e Department of Health and Medical Education is well aware that, for the post of Telephone Operator/Telephone Supervisor, the qualification of Diploma in Electronics and Communication is a requisite qualification. In other words, the same employer equates the two qualifications 19 i.e Diploma and Degree for direct recruitment to the post of Telephone Operator/ Telephone Supervisor; and,
(iii) That there is a clarification issued by the Department of Health and Medical Education vide its communication dated 30.01.2020 in response to a letter of the Service Selection Board dated 24.12.2019 indicating to the Board that the qualification prescribed for the post in the indent describes the minimum qualification required for the post and the candidates with higher qualifications cannot be debarred from applying/selection for the post advertised. This communication fortifies the position that the qualification notified in the advertisement notifications in terms of the indent placed by the Department of Health and Medical Education is the minimum prescribed qualification and not the only prescribed qualification.
24. So far as the question of suppression of material facts by the petitioners is concerned, although in the reply affidavit filed by the official respondents, in particular the Service Selection Board, there is no allegation of any misrepresentation or suppression of material facts, yet from the reply filed by the private respondents, it comes to fore that with a view to upload their application forms to the official website of the Board, the petitioners, in addition to their claim of possessing the degree qualification, also clicked „tick‟ on the qualification of Diploma in Electronics and Communication. The explanation by the petitioners is that they all along believed that the qualification of Degree in Electronics and Communication presupposes the acquisition of Diploma qualification and therefore, to avert the rejection of their application forms, they did mention their qualification as Diploma as well. They submit that this was done under a bona fide impression and having regard to the law laid down by the Supreme Court in Jyoyti K.K's and Puneet Sharma's cases (supra). Be that as it may, we have considered this aspect of the matter and do not find any deliberate misrepresentation or suppression of any material information so as to defraud the SSB or the Government. Their mentioning of diploma qualification was under a bona fide belief that they 20 possess that qualification as well having done their degree in the same discipline.
25. We may note here that the judgment relied upon by the respondents in the case of Aijaz Ahmad Ahanger and others vs. UT of Jammu and Kashmir (WPC No. 2251/2021, decided on 16.11.2021) has been decided in the context of fact situation obtaining in the said case and, therefore, cannot be taken to have laid down a proposition of law of universal application that a candidate possessing qualification higher than the minimum prescribed qualification in the same line, is ineligible and, therefore, can be debarred from participating in the selection process. The fact that the qualification indicated in the Advertisement Notification(s) as prescribed qualification was the minimum prescribed qualification as is clearly laid down in the executive order laying down the norms of recruitment and prescribing qualification for various posts, has not been brought to the notice of the Division Bench. The Division Bench has also not considered the issue as to whether or not, a candidate possessing a qualification higher than the minimum prescribed, is eligible, provided the higher qualification possessed by such candidate is in the same line and having equal relevance for the post in question.
26. In view of the discussion made above and having regard to the legal position adumbrated in Puneet Sharma's case (supra), we hold that, for the purposes of case in question, the qualification of Degree in Electronics and Communication held by the petitioners, is necessarily a higher qualification than the minimum qualification prescribed in the Advertisement Notifications i.e Diploma in Electronics and Communication and that the higher qualification possessed by the petitioners is in the same line. We further clarify and hold that the qualification of Degree in Electronics and Communication 21 presupposes the acquisition of Diploma in Electronics and Communication which is the minimum qualification prescribed for the twin posts in question. The petitioners were, thus, eligible to participate in the selection process. The Tribunal has not correctly appreciated the position of law and has wrongly held the petitioners ineligible for the posts in question. As a result, we allow this petition and set aside and quash the order of Tribunal impugned in this petition by issuing a writ of certiorari. A writ of mandamus is issued to the respondent- Board to redraw the merit for the posts in question having regard to the fact that both the petitioners are eligible for the posts in question and, accordingly, frame the final select list afresh. The respondent-Board shall do well to issue the select list within two months so that the selected candidates are appointed without any further loss of time. We further provide that in case it is possible to accommodate the writ petitioners without disturbing the selection made, the official respondents may proceed accordingly, judgment passed by us today notwithstanding.
(PUNEET GUPTA) (SANJEEV KUMAR)
JUDGE JUDGE
Jammu
06.11.2023
Sanjeev Whether order is reportable: Yes