Allahabad High Court
Secretary Uttar Pradesh Subordinate ... vs Indra Prakash Patel on 7 July, 2021
Bench: Munishwar Nath Bhandari, Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 29 Case :- SPECIAL APPEAL DEFECTIVE No. - 440 of 2021 Appellant :- Secretary Uttar Pradesh Subordinate Service And 2 Others Respondent :- Indra Prakash Patel Counsel for Appellant :- Subhash Rathi Counsel for Respondent :- Manvendra Nath Singh Hon'ble Munishwar Nath Bhandari, Acting Chief Justice Hon'ble Piyush Agrawal,J.
1. Heard Ms. Subhash Rathi for the appellants and Sri Manvendra Nath Singh for the respondents.
2. Before considering the application under Section 5 of the Limitation Act, we are considering the merit of the case.
3. It is a case where non-appellant applied for the post of Cane Supervisor pursuant to the advertisement dated 6.10.2016. He was called for Interview on 8.1.2020. The petitioner / non-appellant was not interviewed for the reasons that he was not in possession of CCC Certificate of DOEACC society. The writ petition was filed as a consequence thereof.
4. It was contended that the petitioner is in possession of degree in B.Tech. (Agriculture) in which Computer was one of the subject. Thus he was eligible for the appointment on the post of Cane Supervisor in view of the Government Order dated 3/6.5.2016 and 23.9.2016 as clarified subsequently by the order dated 5.7.2018. The learned Single Judge allowed the writ petition in reference to the Government Order which has relaxed the qualification otherwise provided under the statutory provisions.
5. Learned counsel for the appellant/ State Government submits that the administrative order issued by the Government could not have been read in conflict with the statutory Rules and for that a reference of Rule 9 of the Uttar Pradesh Ganna Paryaveshak (Group III) Service Rules, 2015 (Second Amendment), has been given. The said Rule is quoted hereunder :
Substitution of Rule 9.
COLUMN -1 Existing rule COLUMN -2 Rule as hereby substituted Academic qualification
9. A candidate for direct recruitment to a post in the service
(i) must have passed the Intermediate (Agriculture) Examination from the Board of High School and Intermediate Eduction, Uttar Pradesh or an examination recognized by the Government as equivalent thereto, Or
(ii) (a) must have passed the High School Examination from the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto;
(b) must possess two years diploma in Agriculture from a recognised institution.
Academic qualification
9. A candidate for direct recruitment to a post in the service must possess the following qualification:
(i) Bachelor's degree in Agriculture Science from a University established by law in India or a qualification recognized by the Government as equivalent thereto.
(ii) CCC Certificate in Computer operation awarded by the DOEACC Society.
6. As per the substituted qualification, one was required to be in possession of Bachelor's degree in Agriculture Science apart from CCC Certificate in computer operation of DOEACC Society. The petitioner / non-appellant was not in possession of CCC Certificate. The petitioner/ non appellant was not in possession of the qualification even provided by the administrative order dated 3/6.5.2016 and 23.9.2016, as clarified in the Government Order dated 5.7.2018. The prayer is accordingly to set aside the judgement of learned Single Judge.
7. Learned counsel for the non-appellant submits that petitioner was in possession of the Bachelor's degree in Agricultural Science, where the Computer was one of the subject. Thus as per Government Order, he was eligible for the post of Cane Supervisor. The prayer is accordingly to upheld the judgement of learned Single Judge.
8. We have considered the rival submissions of the parties and perused the records.
9. It is not in dispute that the post in question is governed by the Uttar Pradesh Ganna Paryaveshak (Group III) Service Rules, 2015 (Second Amendment). The qualification provided therein is as under :
9. A candidate for direct recruitment to a post in the service must possess the following qualification:
(i) Bachelor's degree in Agriculture Science from a University established by law in India or a qualification recognized by the Government as equivalent thereto.
(ii) CCC Certificate in Computer operation awarded by the DOEACC Society.
As per Rule 9, one should be in possession of Bachelor's degree in Agriculture Science apart from CCC Certificate of DOEACC Society. It has not been disputed that petitioner is not in possession of CCC Certificate in computer operation. Thus as per the statutory provisions, he is not eligible for the post of Cane Supervisor. The Government issued letter dated 6.5.2016 to relax the qualification of CCC Certificate. The part of the letter dated 6.3.2016 is also quoted hereunder for ready reference :
**dfu"B lgk;d ,oa vk'kqfyfid ds inks ij p;u gsrq Mh-vks-bZ-,-lh-lh- ¼Mks;d½ lkslkbZVh }kjk iznRr lh-lh-lh- izek.k&i= dh led{krk ds lEcU/k eas 'kklu }kjk fuEuor~ fu.kZ; fy;k x;k gS%& ¼1½ ek/;fed f'k{kk ifj"kn] mRrj izns'k ds lkFk&lkFk dsUnz vFkok fdlh jkT; ljdkj }kjk LFkkfir fdlh laLFkk@f'k{kk] cksMZ@ifj"kn }kjk lapkfyr gkbZLdwy vFkok baVjehfM,V ijh{kk es i`Fkd fo"k; ds :i es dEI;wVj lkbUl fo"k; dks fy;k x;k gksA ¼2½ ;fn fdlh vH;FkhZ }kjk dEI;wVj lkUbl es fMIyksek vFkok fMxzh izkIr dh xbZ gks rks og Hkh dfUk"B lgk;d@vk'kqfyfid ds inksa ij HkrhZ gsrq ik= gksxkA **
10. The another letter was issued on 23.9.2016 and relevant part of it, is also quoted herein below:
**mijksDr fo"k;d lela[;d 'kklukns'k fnukad 03@06 ebZ 2016 dk d`i;k lanHkZ xzg.k djs] ftlds ek/;e ls dfu"B lgk;d ,oa vk'kqfyfid ds inks ij p;u gsrq Mh-vks-bZ-,-lh-lh- ¼Mks;d½ lkslkbZVh }kjk iznRr lh-lh-lh- izek.k&i= dh led{krk ds lanHkZ es 'kklu }kjk fuEuor~ fu.kZ; fy;k x;k Fkk%& ¼1½ ek/;fed f'k{kk ifj"kn mRrj izns'k ds lkFk&lkFk dsUnz vFkok fdlh jkT; ljdkj }kjk LFkkfir fdlh laLFkk@f'k{kk] cksMZ@ifj"kn }kjk lapkfyr gkbZ Ldwy vFkok baVjehfM,V ijh{kk es i`Fkd fo"k; ds :i es dEI;wVj lkbUl fo"k; dks fy;k x;k gksA ¼2½ ;fn fdlh vH;FkhZ }kjk dEI;wVj lkUbl es fMIyksek vFkok fMxzh izkIr dh xbZ gks rks og Hkh dfUk"B lgk;d@vk'kqfyfid ds inksa ij HkrhZ gsrq ik= gksxkA **
11. As per the letters aforesaid, a candidate was made eligible, if he had undertaken computer science subject at the level of High School or Intermediate. It was also if one is having a diploma or degree in computer science. The petitioner / non-appellant was not having computer science subject at the level of High School / Intermediate or diploma or degree in computer science. The petitioner / non appellant is not having computer science at the level of High School or Intermediate. It is not having diploma or degree of computer science thus he was not eligible even by the Government Orders. At this stage it is necessary to observe that the administrative order referred to above i.e. 3/6.5.2016 and 23.9.2016 cannot be read in conflict to the Rules of 2015. The Rule of 2015, as amended require CCC Certificate of computer science. It could not have been nullified by an administrative order. It is settled law that an administrative order can supplement the statutory provisions but cannot supplanted it. The administrative order referred to above and quoted has supplanted the statutory provisions. It was not in the domain of the administration to issue order dehors the statutory provisions. Thus even the administrative order could not have been read to the benefit of candidate going dehors the Rules. Learned Single Judge, however, placed reliance on the administrative orders ignoring the statutory provisions. Learned Single Judge extended the benefits to the petitioner even going contrary to the administrative order. The petitioner / non appellant was not having subject of computer science at the level of High School or Intermediate. He was not otherwise in possession of diploma or degree in computer science. He was having computer subject in two semesters of B. Tech. (Agriculture) course. It does not suffice the condition given even in the administrative order and otherwise it could not have been read in conflict with the statutory provisions. Accordingly, we find substance in the appeal and accordingly the judgement of learned Single Judge dated 20.1.2020, is set aside.
12. Since, we find merit in the appeal, the delay in filing the same should not be come in the way of the appellant in the light of the judgements of Apex Court and otherwise we find reasons to condone the delay in filing the appeal. The application is not otherwise opposed seriously. Thus the delay in filing the appeal is condoned.
13. The delay condonation application as well as appeal are allowed.
Order Date :- 7.7.2021 Rahul Dwivedi/-
(Piyush Agrawal,J.) (Munishwar Nath Bhandari,A.C.J.)