Allahabad High Court
Ashish Kumar vs State Of U.P. And Another on 21 December, 2021
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 06.10.2021
Delivered on 21.12.2021
Case :- WRIT - A No. - 13866 of 2017
Petitioner :- Ashish Kumar
Respondent :- State of U.P. and Another
Counsel for Petitioner :- Hari Om,A. Khare
Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Ayank Mishra,J.P.Pandey
Hon'ble Saral Srivastava,J.
1. Heard Sri Akash Khare, learned counsel for the petitioner, and Sri Abhishek Srivastava learned counsel for the respondents-Corporation.
2. The petitioner through the present writ petition has prayed for a direction upon respondents to consider the candidature of the petitioner for appointment on the post of Junior Engineer Electrical (Trainee) in U.P. Power Corporation Ltd.
3. During the pendency of the writ petition, the respondent has passed an order on 25.03.2017 rejecting the candidature of the petitioner which was challenged by the petitioner by way of amendment in the writ petition.
4. The case of the petitioner is that pursuant to an Advertisement No.9/V5A/2016/JE notified on 09.10.2016 inviting online application for the post of Junior Engineer Electrical (Trainee) under the Electrical Engineer category, Junior Engineer Civil (Trainee) under the category of Civil Engineering, he has submitted application for being considered on the said post.
5. According to the petitioner, he has three years diploma in Electrical and Electronics Engineering from Tamil Nadu Polytechnic College, Madurai recognized by U.G.C. Thus, he possesses the essential qualification for appointment on the said post. The petitioner submitted the online application under the O.B.C. category. In response to his application, he was issued Admit Card allotting Roll No.1117201837 for CBT to be held on 11.11.2016. The petitioner appeared in an online examination. Thereafter, a final response sheet was uploaded by respondent no.2-Electricity Service Commission on its website. As per the final response sheet, the petitioner has obtained 117.25 marks out of a total of 200 marks. Respondent no.2 declared the result of shortlisted candidates on 07.12.2016 in which the name of the petitioner also figured in. Thereafter, the petitioner was called for documents verification by letter dated 07.12.2016 on 12.12.2016. The petitioner appeared before the authority concerned on 12.12.2016 and presented all his documents. Thereafter, the final select list was published on 03.01.2017 in which the name of the petitioner did not find a place.
6. According to the petitioner, the cut-off marks for the O.B.C. candidate were 117 marks whereas the petitioner had obtained 117.25 marks even then, he was not declared successful. The impugned order reveals that the candidature of the petitioner has been rejected on the ground that he does not possess the essential qualification for appointment on the post in question.
7. It is stated in the writ petition that the petitioner possesses a diploma in Electrical and Electronics Engineering which is equivalent to a diploma of Electrical Engineering, which is clear from the chart mentioned in paragraph 13 of the writ petition showing the subjects of the petitioner and subjects of one Jai Narain Chauhan and Amit Kumar, who have obtained three years diploma in Electrical Engineering. The petitioner in support of his aforesaid contention has also enclosed the mark sheet of Jai Narain Chauhan and Amit Kumar.
8. In the counter affidavit filed by the respondents, it is stated that the petitioner did not possess minimum qualifications as prescribed. It is also stated that power is with the Corporation to lay down the required qualification for appointment on the post in question. It is also stated that the diploma possessed by the petitioner is not equivalent to the diploma in Electrical Engineering as the syllabus of both the courses is at the variance of 20% to 30%.
9. The petitioner filed a rejoinder affidavit denying the averments made in the counter affidavit.
10. I have considered the rival submissions of the parties and perused the record.
11. Before proceeding with the matter, it would be relevant to reproduce qualification No.4 (B) in the advertisement prescribed for recruitment for the post of Junior Engineer (Trainee)-Electrical:-
"4 Essential Eligibility Qualification:
(B) A candidate must have passed
(i) "Three years Diploma examination in Electrical Engineering awarded by Pravidhik Shiksha Parishad, Uttar Pradesh OR a Diploma, equivalent thereto, recognized by the State Government" OR
(ii) "Three years All India Diploma Examination in Electrical Engineering conducted by the All India Council for Technical Education (AICTE), Govt. of India" OR
(iii) "Diploma Examination in Electrical Engineering conducted by any of the Universities in India incorporated by an Act of the Central/State Legislature."
Note: Diploma received through Distance Learning Education will not be eligible."
12. From a perusal of qualification no.4 (B) of the advertisement, extracted above, it is evident that for essential qualification, a candidate must possess three years Diploma in Electrical Engineering. The petitioner undisputedly possesses three years Diploma in Electrical and Electronics Engineering.
13. The petitioner in paragraph 13 of the writ petition has reproduced a chart to demonstrate that the course of petitioner and course of Jay Narayan Chauhan and Amit Kumar are identical and, therefore, the petitioner should be treated to have essential qualification as prescribed in the advertisement. For ready reference, the chart mentioned by the petitioner in paragraph 13 is reproduced herein below:-
Sl. No. Petitioner Electrical & Electronics Engineering Electrical Engineering of Jai Narain Chauhan Electrical Engineering of Amit Kumar
1.
One Year Semester English Basics of Computer Science. Mathematics-I, Mathematics-II, Applied Physics, Applied Chemistry, Technical Drawing, Applied Physics Practical, Applied Chemistry Practical, Work Shop, English Communication Practical.
One Year Semester Professional Communication, Applied Mathematics-I, Applied Physics, Applied Chemistry, Engineering Drawing, Basic Electrical Engineering, Electrical & Electronics Engineering Materials, Electronics-I PRACTICALS Applied Physics, Applied Chemistry, Basic Electrical Engg., Electronics-I, Workshop Practice, Professional Communication SESSIONAL Sessional, Games, Discipline Year Semester English Basics of Computer Science. Mathematics-I, Mathematics-II, Applied Physics, Applied Chemistry, Technical Drawing, Applied Physics Practical, Applied Chemistry Practical, Work Shop, English Communication Practical.
2Second Year i.e. IIIrd Semester & IVth Semester. Electrical Circuit Theory, Electrical Machines-1, Electronic Devices & Circuits, Electrical Machines Lab-1, Electronic Devices & Circuits Lab, MS-Office Lab IVth Semester Electrical Machines II, Measurement And Instrumentation, Basics of Mechanical Engineering, Electrical Machines Lab II Computer Aided Electrical Drawing Lab, Mechanical Engineering Lab.
SECOND YEAR THEORY Applied Mathematics II, Electrical Design Drawing & Estimating-I, Electrical Instruments & Measurements. Power Plant Engg., Transmission & Distribution of Electrical Power, Elementary Mech. & Engg., Electronics-II PRACTICALS Electrical Design Drawing & Estimating-I, Electrical Machines-I, Electrical Instruments & Measurement Elementary Mechanical & Civil Engg., Electronics-II, Computer Application SESSIONAL Sessional, Games, Discipline SECOND YEAR Applied Mathematics II, Electrical Design Drawing & Estimating-I, Electrical Machines-I, Electrical Instruments & Measurements. Power Plant Engineering Transmission & Distribution of Electrical Power, Ele. Mechanical & Civil Engg., Electronics-II Computer Application for Engineering Lab.
3Third Year i.e. Vth Semester & VIth Semester.
Vth Semester Generation Transmission And Switch Gear, Analog And Digital Electronics, Elective Theory I (Control of Electrical Machines).
Wiring Winding And Estimation Lab., Elective Practical I (Control of Electrical Machines Lab).
VIth Semester Distribution And Utilization, Micro Controllers, Elective Theory II (Power Electronics), Micro Controller Lab, Elective Practical II (Power Electronics), Project Work and Entrepreneurship FINAL YEAR THEORY PAPERS Industrial Electronics & Control Elect. Design, Drawing & Estimating-II, Industrial Management & Entrepreneurship Development, Installation Maintenance & Repair of Electrical Machines, Switch Gear and Protection Utilization of Electrical Energy, Electrical Machines-II, Renewable Sources of Energy Practical Papers, Industrial Electronics & Control, Installation Maintenance & Repair of Electrical Machines, Electrical Machines-II, Project-I Problem, Project-II Field Exposure SESSIONAL MARKS Sessional, Games Discipline CARRY OVER MARKS Carry Over Ist Year (30%), Carry Over 2nd Year (70%) FINAL YEAR THEORY Industrial Electronics & Control, Elect. Design Drawing & Estimating-II, Industrial Management & Entrepreneurship Development, Installation Maintenance & Repair of Electrical Machines, Switch Gear and Protection, Utilization of Electrical Energy, Electrical Machines-II, Electric Traction.
PRACTICAL Industrial Electronics & Control, Installation Maintenance & Repair of Electrical Machines, Electrical Machines-II, Project-I Problem, Project-II Field Exposure SESSIONAL CARRY OVER Sessional Games, Discipline CARRY OVER MARKS Carry over of Ist Year (30%), Carry Over of 2nd Year (70%).
14. The petitioner has also enclosed his mark-sheet of three years as well as mark-sheet of Jai Narayan Chauhan and Amit Kumar. It would be appropriate to reproduce a chart indicating the subject of petitioner and Jai Narayan Chauhan and Amit Kumar, which they had studied in their first year:-
Ashish Kumar (Petitioner) Jai Narayan Chauhan Amit Kumar Ist Year Semester (Departmental of Technical Education, Tamil Nadu Polytechnic College (Autonomous), Mudrai.) (Name of College) Ist Year Semester Board of Technical Education (U.P.), Lucknow (Name of College) Ist Year Semester Government Polytechnic, Jhansi (Name of College) Subjects:-
English, Basic of Computer Science, Mathematics-I, Mathematics-II, Applied Physics, Applied Chemistry, Technical Drawing, Applied Physics Practical, Applied Chemistry Practical, Workshop, English Communication Practical.
Subjects:-
THEORY Professional Communication, Applied Mathematics-1, Applied Physics, Applied Chemistry, Engineering Drawing, Basic Electrical Engg., Electrical & Electronics Engg. Materials, Electronics-1 PRACTICALS Applied Physics, Applied Chemistry, Basic Electrical Engg., Electronics-1, Workshop Practice, Professional Communication SESSIONAL Sessional, Games, Discipline Subjects:-
Professional Communication, Applied Mathematics-I, Applied Physics, Applied Chemistry, Engineering Drawing, Basic Electrical Engineering, Electrical & Electronics Engineering Materials, Electronics-I, Workshop Practice.
15. The perusal of the above chart shows that the course of the petitioner as well as Jai Narayan Chauhan and Amit Kumar, and also the subjects which they had studied in their first year are at variance and are not similar.
16. It is further pertinent to mention that petitioner in the writ petition has not made specific assertion comparing the courses which could demonstrate that the subject which the petitioner had studied in the first year contains the same syllabus and topics which Jai Narayan Chauhan and Amit Kumar had studied in the first year. Had the petitioner given specific assertion, the respondents could have replied the same, and only then this Court would have been in a position to assess or call for an expert opinion to consider as to whether the Diploma of the petitioner can be treated to be equivalent to the Diploma of Electrical Engineering.
17. The respondent in the counter affidavit has made the specific assertion that Diploma in Electrical and Electronics Engineering and Diploma in Electrical Engineering are at the variance of 20% to 30% in the syllabus.
18. At this stage, it would be apt to refer to the judgment of the Apex Court in the case of Zahoor Ahmad Rather and Others Vs. Sheikh Imtiyaz Ahmad and Others 2019 (2) SCC 404 wherein the Apex Court has held that it is the domain of the employer to prescribe qualification as a condition of eligibility. The Court has no jurisdiction to expand upon the ambit of prescribed qualifications. Paragraphs 26 and 27 of the said judgment are reproduced herein below: -
"26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti K.K. Vs. Kerala Public Service Commission, (2010) 15 SCC 596 in the subsequent decision in State of Punjab Vs. Anita (2015) 2 SCC 170. The decision in Jyoti K.K. (supra) turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. 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. (supra) 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 of the High Court was justified in reversing the judgment 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 of the Division Bench.
27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The state is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision making. The state as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. (supra) must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti K.K. (supra) turned."
19. In the case of Shailendra Kumar Rai and Others Vs. State of U.P and Others in Writ-A No.1092 of 2015 this Court also held that the Court cannot issue direction to the employer to prescribe qualification for holding a particular post. Paragraphs 21 and 22 of the said judgment are reproduced herein below:-
"21. It is settled law that only the statutory authority is entitled to frame statutory rules, terms and conditions of the services and also the qualifications essential for holding a particular post. It is only and only the concerned authority, which can take an ultimate decision in this regard. No direction can be issued to the employer to prescribe a qualification for holding a particular post as also held by Hon'ble Supreme Court in case of Sanjay Kumar Manjul Vs. Chairman, UPSC and Others (2006) 8 SCC 42 (paras-25, 26 and 27) as under:-
"25. The statutory authority is entitled to frame statutory rules laying down terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned who can take ultimate decision therefor.
26. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same.
27. It is well-settled that the superior courts while exercising their jurisdiction under Articles 226 or 32 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post."
22. Similar view has also been taken by this Court in the case of Manoj Kumar Singh and Others Vs. State of U.P. and Others, 2014 (9) ADJ 659 (DB) (LB) (vide paragraphs-36, 37, 38, 40, 47 and 48). The Division Bench in the case of Manoj Kumar Singh (supra) while coming to the aforesaid conclusion also relied upon the judgment of Hon'ble Supreme Court in the case of District Collector and Chairman, Vizianagaram Social Welfare Residential School Society and another Vs. M. Tripura Sundari Devi, (1990) 3 SCC 655), P.M. Latha and Another Vs. State of Kerla and Others (2003) 3 SCC 541 and Mohd. Shohrab Khan Vs. Aligarh Muslim University (2009) 4 SCC 555."
20. In the instant case, as noticed above, the petitioner has failed to demonstrate that the course and syllabus which he had studied in three years Diploma in Electrical and Electronics Engineering is identical to the syllabus of Diploma in Electrical Engineering.
21. The reliance placed by the petitioner upon the judgment of Delhi High Court in the case of Ms. Nisha Vs. Union of India and Others in W.C. (C) 6100/2012 & CM No.16465/2012 is misplaced inasmuch as in the said case the Court has obtained a report from two members committee and thereafter proceeded to consider that the syllabus and course contents in the degree of B.Tech. Electrical and Electronics are equivalent to the degree of B.Tech. Electrical.
22. The judgment of Ms. Nisha (supra) has been rendered in different factual backdrops inasmuch as in the case in hand, necessary pleading that contents and syllabus of three years in Diploma Electrical and Electronics Engineering are identical to three years Diploma in Electrical Engineering are lacking.
23. In this view of the fact the judgment of Ms. Nisha (supra) is of no help to the petitioner.
24. It is relevant to note that merely because the petitioner had appeared in the examination and was called for document verification does not mean that he has the vested right to be appointed till he satisfies all eligibility criteria including essential qualification.
25. As in the instant case, the petitioner admittedly possesses three years Diploma in Electrical and Electronics Engineering and does not have three years Diploma in Electrical Engineering, therefore, this Court does not find merit in the writ petition.
26. Accordingly, the writ petition lacks merit and is dismissed with no order as to costs.
Order Date:- 21.12.2021 Sattyarth