Allahabad High Court
Asheesh Kumar And 6 Others vs State Of U.P. And 2 Others on 11 November, 2020
Equivalent citations: AIRONLINE 2020 ALL 2320
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 81 Case :- WRIT - A No. - 6083 of 2020 Petitioner :- Asheesh Kumar And 6 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C.,K.K.Chand Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioners and the learned Standing Counsel. Although respondent Nos. 2 and 3 are duly represented, none has appeared on their behalf even when the matter is taken in the revised call.
The petitioners here who had appeared in a recruitment exercise undertaken by the Board are essentially aggrieved by the action of the respondents in not permitting them to participate in the interviews which were held as part of that exercise.
All the petitioners had applied for being considered to be appointed as Trained Graduate Teachers ["TGT"] in English. They were declared successful in the written examination and issued call letters for the interview which was to be held on different dates in March 2020. The petitioners 1, 2, 6 and 7 were denied permission to participate in the interview allegedly on the ground that they did not possess the minimum educational qualification prescribed in the advertisement. Although the interviews for petitioner nos. 3, 4 and 5 were also slated to be held in March 2020, they came to be postponed consequent to the nationwide lockdown which ensued on account of the COVID 19 pandemic. The petition at their behest has been preferred since it is apprehended that they shall also not be permitted to participate in the interview on objections similar to those taken by the respondents in the case of the other petitioners.
The dispute essentially arises in the backdrop of the advertisement prescribing a graduation degree in "English Literature" or "English Language" along with requisite experience to be the essential qualification. The petitioners hold a degree in "General English" conferred by the respondent University. The respondents have taken the position that a graduation degree in General English does not comply with the essential eligibility criteria as set forth in the advertisement.
When the petition was initially entertained, a learned Judge after noticing the rival contentions had provisionally permitted the petitioners to participate in the interview providing however that their results would abide by the outcome of this petition. Since the submissions which have been addressed before the Court are similar to those which were advanced at the interim stage and are also duly noticed, it would be apposite to extract the order of 10 September 2020 hereunder:
"The present petition has been filed alleging that despite the petitioner having the requisite qualification of Bachelor in Arts in General English they are not being allowed to participate in interview. On 01.09.2020, this Court had passed the following order:
"The petitioners being qualified applied for the post of Trained Graduate Teacher (English) (hereinafter referred as T.G.T.). The petitioners have qualified the written examination, but they have not called for interview on the ground that they do not possess the degree in B.A. English/Literature as they have obtained their Bachelor of Arts in General English from Bhimrao Ambedkar University, Agra which is not equivalent to B.A. English/Literature.
Learned counsel for the petitioners submitted that the qualification for the post of T.G.T. (English) in the advertisement of 2013 as well as 2016 are the same and in 2013 the respondents have permitted and selected the candidates who have obtained the degree from Bhimrao Ambedkar University, Agra in General English for the post of T.G.T. (English). The petitioners in this regard has made specific averment in paragraph 16 of the writ petition wherein it is averred that in the select list dated 24.05.2017 relating to 2013 advertisement, the candidate selected at serial no.254, 128 and 81 possess the degree from Bhimrao Ambedkar University, Agra in General English.
Thus, the submission is that the action of the respondents in not allowing the petitioners is arbitrary and discriminatory and in violation of Article 14 of the Constitution of India.
Sri K.K. Chand, learned counsel for the respondent no.2 prays for a week's time to seek instructions in the matter.
Put up as fresh on 10.09.2020 showing the name of Sri K.K. Chand as counsel for the respondent no.2."
Sri K.K. Chand, learned counsel appears on behalf of respondents, states that the requirement is Graduation in English Literature and merely comes in the past wrong benefits have been extended two persons, the petitioners cannot claim negative equality.
A perusal of the advertisement shows that the requirement specified is Graduation in English Literature or English Language. The qualification of the petitioner is clearly Graduation in English.
Considering the fact that in the past also the persons with similar eligibility, petitioners have been permitted for interview coupled with the fact that the interviews are rightly come to an end tomorrow i.e. 11.9.2020.
As an interim measure, the petitioners are permitted to appear before the respondent no. 2 who shall permit the petitioners to participate in the interview, however, their results shall be subject to the outcome of this writ petition.
The respondent no. 2 shall file his counter affidavit within a period of three weeks, one week thereafter for rejoinder affidavit.
List this case on 09.11.2020.
Copy of the order downloaded from the website of Allahabad High Court shall be accepted/treated as certified copy of the order."
Before this Court it is not disputed that there exists no decision of the respondents holding a degree in General English conferred by the University to be equivalent to one obtained in the study of English Literature or English Language at that level. Sri Singh learned counsel for the petitioner sought to contend that in terms of the certificate dated 16 March 2020 [Annexure 18 to the writ petition] issued by the University as well as upon consideration of the syllabus prescribed by it for the course of General English, the Court may declare that the degree in General English would be in compliance with the prescriptions contained in the advertisement. This submission would necessarily have to be considered on the pedestal of whether such a course being treaded would be legally permissible. However, the consideration of this question may be deferred presently in order to record the second submission which was vehemently urged and which proceeded on the following lines.
According to Sri Singh, the respondent Board had itself in the past permitted persons holding a degree in General English to participate in the selection process undertaken for recruitment of TGT teachers in English. According to Sri Singh, not only was an objection as raised in the present recruitment never taken earlier, persons holding such degrees are also employed under the respondents. In view of the aforesaid it was submitted that the action of the respondents denying the petitioners the right to participate in the interviews is wholly arbitrary.
The stand of the respondents as evidenced in the order of 10 September 2020 and which was reiterated is that the mere fact that certain persons were permitted in the past to appear and participate in the recruitment even though they did not hold a degree in English Literature or Language cannot enure to the benefit of the petitioners since Article 14 of the Constitution does not contemplate or sanction negative equality. According to the respondents merely because a mistake or illegality was committed in the past, that cannot constitute a legally justifiable reason for the respondents being commanded to perpetuate that illegality or to commit a similar folly.
Since the law on this issue is clearly well settled, it need not detain the Court further except to hold that an illegal act can never constitute a ground for invocation of Article 14. Illegality is the antithesis and an anathema to the right to equality and fairness enshrined in that Article. It would consequently be wholly incongruous to extend the protection of Article 14 based on an action which can neither be sustained nor countenanced in law.
This aspect assumes added significance when the Court is considering a submission like the present in matters relating to employment in government service. The constitutional guarantee and command of Article 14 must be vigorously employed by Courts while dealing with matters of employment under the State. In matters relating to public employment, the recruitment process must strictly adhere to the mandate of both Articles 14 and 16 of the Constitution. A recruitment in order to satisfy the edict of these Articles must not only ensure that it is held strictly in accordance with the statutory rules that may apply and the terms of the advertisement but also that it is a fair competition amongst qualified and eligible candidates alone. Inclusion of one who is unqualified not only sullies the recruitment process but also encroaches upon the right of another who may also have had the opportunity to serve under the State. One may recall the pertinent observations made in Umadevi (3)1 where the Constitution Bench held: -
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee.........."
That then takes us to the submission of the petitioners being otherwise eligible to participate in the recruitment process on the strength of their degree in "General English". In order to deal with this submission, it would be apposite to firstly extract the relevant part of the Advertisement where the essential qualification was prescribed in the following terms:
"बी0 ए0 हिंदी एवं संस्कृत विषय के साथ अथवा समकक्ष एवं बी0 एड0 या अन्य समकक्ष डिग्री ।
4- अंग्रेजी विषय हेतु स्नातक अंग्रेजी साहित्य अथवा अंग्रेजी भाषा सहित प्रशिक्षण उपाधि।"
Additionally, reliance was also placed on a certificate issued by the respondent University appended at page 120 of the paper book which reads thus:-
"TO WHOM IT MAY CONCERN This is to certify that the Candidate who has obtained the B.A. Degree with General English from Dr. Bhim Rao Ambedkar University, Agra the General English is an additional compulsory subject. Under Ordnance Provision is as follows:-
"Every Candidate for B.A. Degree shall further be required of offer, an additional Compulsory course in Language (either Hindi Language or General English or General Sanskrit.)"
REGISTRAR Dr. B.R.A University, Agra"
At the very outset it becomes pertinent to note that the relevant stipulation in the advertisement extracted above, specifically required candidates to possess a degree in either English Literature or Language alone. It nowhere prescribed that any other degree equivalent thereto would also be acceptable. This the Court notices in addition to the admitted position that the respondents are not shown to have taken any decision holding a degree in General English to be equivalent to the qualifications prescribed in the advertisement. The advertisement viewed in that sense did not contemplate the inclusion of candidates who did not possess the twin essential qualifications stipulated or for the selecting body delving into the issue of "equivalence" of degrees.
The Court then notes that the certificate issued by the University and which has been relied upon also does not advance the case of the petitioners any further. It nowhere holds out that the said degree is identical to or indistinguishable from a degree in English Literature or Language. On both the aforementioned counts the Court finds no justification to issue the writs as prayed for.
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 Ahmad2 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 Warade3
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 Das4 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.5 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.
Order Date :- 11.11.2020 faraz (Yashwant Varma, J.)