Himachal Pradesh High Court
Avinash Koundal vs Himachal Pradesh Staff Selection on 16 July, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
1 HON'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.1155 of 2020 alongwith CWP No.1178 of 2020 .
Reserved on: 13.07.2020 Decided on: 16.07.2020 CWP No.1155 of 2020:
Avinash Koundal .............Petitioner Versus Himachal Pradesh Staff Selection Commission and another .........Respondents CWP No.1178 of 2020:
Nikhilesh r to Versus .............Petitioner Himachal Pradesh Staff Selection Commission and another .....Respondents. _____________________________________________________________ Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes.
For the petitioner(s) : Mr. Subhash Mohan Snehi and Mr. Niranjana, Advocates, in both petitions.
For the respondent(s) : Mr. Sanjeev Kumar, Standing Counsel, for respondent No.1/HPSSC, in both petitions Mr. Imran Khan, Advocate, for respondent No.2, in both petitions.
________________________________________________________________ 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 16/07/2020 20:22:37 :::HCHP 2
Jyotsna Rewal Dua, Judge.
Candidature of the petitioners for direct recruitment to the posts of Technical Superintendents .
(Production/Store/Marketing/MIS/P&I) on contract basis in the Himachal Pradesh State Cooperative Milk Producers Federation Limited/respondent No.2, has been rejected by respondent No.1 on the ground that they do not possess minimum educational qualifications prescribed in the Advertisement dated 19.12.2018, which in turn, was based upon the service Rules for the posts.
Since subject matter involved in both these writ petitions is same, therefore, these are taken up together for disposal.
2. Bare minimum factual position required for adjudication of these connected writ petitions, is that:-
2(i). An advertisement was issued on 19.12.2018 by the respondent No.1/H.P. Staff Selection Commission, Hamirpur, for filling up various posts of different categories, including 11 posts of Technical Superintendents (Production/ Store/ Marketing/ MIS/P&I) on contract basis under Post Code-719. The minimum essential qualifications required under the service Rules for the posts were also reproduced ::: Downloaded on - 16/07/2020 20:22:37 :::HCHP 3 in the advertisement itself. For the posts in question under Code-719, minimum essential qualification as reproduced in the Advertisement was:-
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'should possess full time 04 years degree in Dairy Technology/ Dairy Husbandry from the Recognised University.' Under the advertisement, the candidates were to ensure their eligibility about category, experience, age and essential qualifications, as mentioned in the advertisement, to avoid rejection at later stage. It was further clarified in the advertisement that eligibility of candidates called for evaluation will be determined on the basis of original documents to be produced by them during evaluation and further that the admission of the candidates to the Screening test/examination/interview shall be purely provisional.
2(ii). Petitioners participated in the aforesaid selection process. After qualifying the screening test, they were called and appeared for evaluation before respondent No.1 on 18.12.2019. Allegedly hearing no response thereafter from the respondents, application under the Right to Information Act was submitted by the petitioners to respondent No.1. Whereafter, information was provided to ::: Downloaded on - 16/07/2020 20:22:37 :::HCHP 4 them that their candidature has been rejected on account of "Not fulfillment of essential qualification as per R&P Rules.' Aggrieved, instant petitions have been preferred.
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3. We have heard learned counsel for the parties and gone through the material available on record.
Admittedly, the petitioners do not possess the minimum essential qualification of four years degree in Dairy Technology/Dairy Husbandry from a recognized University as stipulated in the advertisement and as prescribed under the service Rules for the posts in question.
3(i). Learned counsel for the petitioners contends that:- firstly, no University in the respondent-State is imparting four years degree in Dairy Technology/Dairy Husbandry, therefore, insistence in the advertisement as well as under the service Rules for the posts in question upon possessing this degree, is not justified.
The aforesaid contention has no force. The mere fact that four years degree in Dairy Technology/Dairy Husbandry is not imparted in the respondent-State, will not preclude the employer to insist upon possession of this degree as an essential qualification for the post. It is not the case of the petitioners that the degree sought for the posts ::: Downloaded on - 16/07/2020 20:22:37 :::HCHP 5 in terms of the advertisement as well as under the service Rules, is not being imparted in any of the Indian Universities.
The service Rules for the posts in question prescribing four .
years degree in Dairy Technology/Dairy Husbandry as an essential qualification for recruitment, have not been challenged by the petitioners.
3(ii). Second, contention raised on behalf of the petitioners is that degree in Food Science and Technology possessed/obtained by the petitioners is a higher qualification as compared to degree in Dairy Technology/Dairy Husbandry required by the respondents.
Therefore, their candidature should not have been rejected.
In making this submission, learned counsel relied upon Appendix 'B' to the service Rules framed pursuant to bye-
laws No.26 of the Himachal Pradesh State Cooperative Milk Producers Federation Limited, detailing required 'minimum qualifications and experience for filling up various posts by direct recruitment'. Sr. Nos.1, 2, 3 & 5 of the aforesaid Appendix 'B', pertain to the posts of Managing Director, General Manager, Senior Manager (Plants) and Manager (Production), respectively. For these Managerial posts, a candidate, inter-alia, possessing a degree in Dairy ::: Downloaded on - 16/07/2020 20:22:37 :::HCHP 6 Technology/Dairy Husbandry or a degree in Food Technology, is eligible to participate in the selection process by way of direct recruitment.
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A perusal of qualifications required for posts at Sr. Nos.1, 2, 3 & 5 of Appendix 'B', makes it evident that degree in Dairy Technology/Dairy Husbandry and Food Technology have been identified as separate degrees by the respondents. Degree in Food Technology is not considered as a higher qualification to the degree in Dairy Technology/Dairy Husbandry. For direct recruitment to the posts of Managing Director, General Manager, Senior Manager (Plants) and Manager (Production), which are all essentially managerial posts, the candidates, inter alia, possessing degree in Dairy Technology/Dairy Husbandry or a degree in Food Technology, will be eligible to participate in the selection process. However, this fact alone will not advance the contention of the petitioners that degree in Food Technology is to be considered at higher pedestal to the degree in Dairy Technology/Dairy Husbandry. Hon'ble Apex Court in (2019) 6 SCC 362, titled Maharashtra Public Service Commission versus Sandeep Shriram Warade and others and connected matters, has held ::: Downloaded on - 16/07/2020 20:22:37 :::HCHP 7 that:- it is otherwise the prerogative of the employer to prescribe qualifications required for a post. The Court is neither equipped nor can lay down eligibility conditions .
required for a post nor can delve into these issues by re-
writing the Advertisement/Rules. The relevant paras from the judgment are extracted herein-in-below:-
"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 at par with the essential eligibility by an interpretive rewriting 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.
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14. The view taken by the Tribunal finds approval in Deptt. Of Health & Family Welfare v. Anita Puri, observing as follows:
"7. Admittedly, in the advertisement which was published calling for applications from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is B.D.S. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that M.D.S. is a higher qualification than the minimum qualification required for the post and Respondent 1 was having that degree. The question then arises is whether a ::: Downloaded on - 16/07/2020 20:22:37 :::HCHP 8 person holding a M.D.S. qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further .
stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed....... In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S. qualified person like Respondent 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualification person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed."
3(iii). Third, contention put-forth on behalf of the petitioners, is that degree in Food Technology obtained by them from Chaudhary Sarwan Kumar Agriculture University, Palampur, is equivalent to the four years degree in Dairy Technology/Dairy Husbandry required by the respondents under the advertisement, therefore, their candidatures could not have been rejected for not possessing the degree in Dairy Technology/Dairy Husbandry. A co-ordinate Bench of this Court in CWP No.161 of 2019, titled Bhupender Sharma versus State of HP and others and connected matters, decided on 29.08.2019, while adjudicating a similar issue, after considering plethora of judgments including judgment rendered by Hon'ble Apex Court, cited in ::: Downloaded on - 16/07/2020 20:22:37 :::HCHP 9 (2019) 2 SCC 404, titled Zahoor Ahmad Rather and others vs. Sheikh Imtiyaz Ahmad and others and connected matter, has observed thus:
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"37. Though the aforesaid contention is very attractive, we do not think that the same is acceptable on a deeper scrutiny. The argument that the possession of a higher qualification would presuppose the possession of lower qualification, originally accepted by the Supreme Court in Jyoti K.K. vs Kerala Public Service Commission {(2010) 15 SCC 596}, had already been distinguished in State of Punjab vs. Anita {(2015) 2 SCC 170}. This distinction was quoted with approval in a subsequent decision in Zahoor Ahmad Rather vs. Sheikh Imtiyaz Ahmad {(2019) 2 SCC 404}. Therefore, the petitioner cannot advance his cause on the basis of a purported higher qualification. Insofar as the argument revolving around merit is concerned, it is to be pointed out that the assessment of merit should be confined only to those who satisfy the eligibility criteria prescribed by the Rules. Persons who fall outside the purview of the Rules cannot take advantage of the result of the written examination. Therefore, the third contention also deserves to be rejected.
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47. Relying upon the decision of the Supreme Court in Mohd. Riazul Usman Gani vs. District & Sessions Judge {(2000) 2 SCC 606}, it is contended by the learned Senior Counsel for the petitioner that the possession of a higher qualification cannot be a bar for the consideration of a candidate for selection to a post requiring a lower qualification.
48. It is true that the Supreme Court held in that case that the possession of a higher qualification cannot become a disadvantage to a candidate. But the Supreme Court made it clear in the fourth last paragraph of the same judgment that they were saying what they said, on the facts of the case on hand and that the same should not be understood as laying down a rule of universal application. Hence the said decision is of no assistance to the petitioner.
49. The reliance placed by the learned Senior Counsel for the petitioner in Parvaiz Ahmad Parry vs. State of Jammu and Kashmir {(2015) 17 SCC 709}, is also misplaced. That was a case where the Rules stipulated the qualification of a BSc in Forestry or equivalent from any ::: Downloaded on - 16/07/2020 20:22:37 :::HCHP 10 University recognized by the Indian Council of Agricultural Research. The appellant before the Supreme Court had acquired a degree in another subject with Forestry as one of the ancillaries and he had also acquired a MSc degree in Forestry. Therefore, the said decision turned on the special facts of the case. Hence it is distinguishable.
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50. Today the declaration of law that holds the field is the one in Zahoor Ahmad Rather. It was made clear in the said case that it is not the role of the Courts to find out the equivalence. In fact the Court implored in Zahoor Ahmad Rather that the State, as the employer, may legitimately bear in mind several factors including the nature of the job, the aptitudes required for efficient discharge of duties, functionality of qualification and the content of the course of studies. The State as a public employer, it was pointed out in the said decision, may well take into account social perspectives that require creation of job opportunities across the societal structure."
In Maharashtra Public Service Commission's case (supra), it has been held by Hon'ble Apex Court that questions of equivalence will fall outside domain of judicial review. Even otherwise, no material has been placed by the petitioners to show that degrees possessed by them in Food Technology from Chaudhary Sarwan Kumar Agriculture University, Palampur, is equivalent to the degree in Dairy Technology/Dairy Husbandry. The advertisement issued by the respondents requiring four years degree in Dairy Technology/Diary Husbandry for the Post Code No.719, is in turn based upon the service Rules for the posts in question. The word ::: Downloaded on - 16/07/2020 20:22:37 :::HCHP 11 'equivalent' is not mentioned either in the Advertisement or in the service Rules.
3(iv). We may also take note of the fact that the .
petitioners had participated in the selection process fully aware of the terms and conditions mentioned therein. After rejection of their candidature on the basis of eligibility condition, mentioned in the advertisement, which in turn is based upon provisions of service Rules, it is not open for them to contend that the degree in Food Technology obtained by them from Chaudhary Sarwan Kumar Agriculture University, Palampur, should be treated at par/equivalent or at higher pedestal to the degree in Dairy Technology/Dairy Husbandry. [Refer (2017) 4 SCC 357, titled Ashok Kumar and another vs. State of Bihar). It has also been pointed out by the respondents in their reply that the advertisement in question, issued for filling in, inter-
alia, aforesaid 11 posts in question under Post Code 719, stands concluded as no candidate was found eligible.
In view of the foregoing discussion, the candidature of the petitioners, who did not possess minimum essential qualification for the posts in question as prescribed in the Advertisement dated 19.12.2018, which in ::: Downloaded on - 16/07/2020 20:22:37 :::HCHP 12 turn was based upon service Rules, was rightly rejected by the respondents. Consequently, these writ petitions are dismissed being devoid of any merit. Pending miscellaneous .
application(s), if any, shall also stand disposed of. Parties are left to bear their own costs.
( Tarlok Singh Chauhan)
Judge
July 16, 2020
(Yashwant)
r to (Jyotsna Rewal Dua)
Judge
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