Punjab-Haryana High Court
Rajbir Singh & Ors vs State Of Punjab And Ors on 16 May, 2023
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2023:PHHC:070956
CWP-26338-2016 (O&M)
and other connected cases 1 2023:PHHC:070956
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-26338-2016 (O&M)
and other connected cases
Date of decision: 16.05.2023
Reserved on :10.05.2023
Rajbir Singh and others
....Petitioners
Versus
State of Punjab and others
..Respondents
CORAM: HON'BLE MR JUSTICE ANIL KSHETARPAL Present:- Mr. Akshay Bhan, Senior Advocate, with Mr. Avikaran Bansal,Advocate for the petitioners (in CWP-26338 of 2016). Mr. Aminder Singh, Advocate for the petitioner (in CWP-26338 of 2016) Mr. Damanjit Singh Sandhu, Advocate for the petitioner (in CWP-7997 of 2017) Ms. Sushma Sharma, Advocate for Mr. Vijay Chaudhary, Advocate for the petitioner (in CWP-8684 of 2017) Mr. Amandeep Singh Rai, Advocate for petitioner no.1(in CWP-23709 of 2017) Mr. Abhiraj Singh Baweja, Advocate, for Mr. Harpal Singh Sirohi, Advocate for the petitioner (in CWP-27207-2016) Mr. Manish K Singla, Advocate for the petitioners in CWP-27471-2016 Mr. Jaswinder Singh Rana, Advocate, for Mr. Deepak Arora, Advocate for the petitioner (in CWP-174 of 2017) 1 of 19 ::: Downloaded on - 22-05-2023 01:02:56 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 2 2023:PHHC:070956 Mr. Saurabh Singla, Advocate, for Mr. Pardeep Bajaj, Advocate for the petitioner(s)(in CWP-26017, 27473, 27481 and 27336 of 2016).
Mr. Lalit Goyal, Advocate for the petitioner (in CWP-23709 of 2017) Mr. D.S.Patwalia, Senior Advocate, with Mr. Gaurav Rana, Advocate, for the applicant-private respondents Mr. R.K.Kapoor, Addl.A.G., Punjab Ms. Anamika, Advocate for respondent no.3.
Mr. J.S.Dhaliwal, Advocate and Mr. H.S.Mann, Advocate for respondent no.4(in CWP-23709 of 2017) Mr. Vikas Cuccria, Advocate, for respondent no.82 and 83.
Ms. Lovepreet Handa, Advocate, for Mr. D.P.S.Randhawa, Advocate for respondent no.84.
Mr. Deepak Gupta, Advocate, for respondent no.85 and 86 (in CWP-26338 of 2016) ANIL KSHETARPAL, J
1. A batch of 18 connected writ petitions (details whereof are given at the foot of the judgment) has come up for final disposal. The learned counsel representing the parties have conceded that the issue is common in all the writ petitions and therefore, the Court can conveniently dispose of these writ petitions by a common judgment.
2. Once again, the issue of the candidates possessing higher qualifications than those specified in the recruitment notice is before the 2 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 3 2023:PHHC:070956 Court. The relevant facts, in brief, are required to be noticed in order to grasp the core issues involved in the case, which require adjudication.
3. The Department of Irrigation, Punjab, issued a recruitment notice inviting applications for recruiting 296 posts of the Junior Engineer (Civil) available in the Department. In the recruitment notice under the clause of educational qualifications, it was provided as under:-
"Name of Post Eligibility Junior Engineer Should possess three years Diploma of Junior (Civil) Engineer in Civil Engineering from a State
Technical Education Board or from a recognized University or Institution Junior Engineer Should possess three years Diploma of Junior (Mechanical) Engineer in Mechanical Engineering from a State Technical Education Board or from a recognized University or Institution Junior Engineer Should possess three years Diploma of Junior (Electrical) Engineer in Electrical Engineering from a State Technical Education Board or from a recognized University or Institution Note- Candidate himself will be responsible for his eligibility in accordance with the minimum qualifications provided above."
4. Clause 11 of the instructions/important information of the recruitment notice reads as under:-
"11. No extra weightage shall be admissible to the Applicants possessing higher qualification or experience."
5. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Punjab has notified the Punjab Public Works Department (Irrigation Branch) (Junior Engineer Group B) Service Rules, 2011 (hereinafter for short 'the 2011 Rules').
3 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 4 2023:PHHC:070956 For the direct recruitment, the column (vi) of the Appendix B prescribes the qualification for direct appointment, which reads as under:-
Sr. Designation Percentage for Method of appointment, qualification No. of the post appointment by and experience for appointment by Direct Promotion Direct appointment Promotion appointment 1 2 3 4 5 6
1. Junior Fifteen per Eighty Five Fifteen per cent Should possess three Engineer cent percent posts by promotion years Diploma of shall be filled up as Junior Engineer in follows- Civil Engineering or
(a) ten per cent from Mechanical amongst the Junior Engineering or Draftsman, Electrical Surveyors, Work Engineering from a Mistry, Earth Work State Technical Mistry and Technical Education Board or Supervisor working from a recognized under the control of university or Chief Engineer, who institution.
have an experience of working as such for a minimum period of five years on regular basis and who have obtained diploma in Civil or Mechanical or Electrical Engineering from a State Technical Education Board or from a recognized university or institution; and
6. The petitioners herein are degree holders in the various streams of Engineering, however, they do not possess diploma in Civil, Mechanical or Electrical Engineering. Under the heading 'Mode of Selection', the recruitment notice reads as under:-
"Mode of Selection
a) Written test will contain 100 multiple choice questions of one mark each. The paper will be of 120 minutes duration.
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b) Minimum qualifying marks will be 25% of total marks of examination. There will be negative marking (1/4th marks shall be deducted for every wrong answer). Selection will be purely based on merit in the entrance exam subject to fulfilling of all eligibility conditions.
c) Kindly visit website www.govt.thapar.edu for more details regarding pattern and syllabus and marking related details."
7. The responsibility for conducting the written test was delegated to the Thapar University, Patiala. On 08.12.2016, a notice was issued regarding clarification of the essential qualification, which reads as under:-
"It is hereby informed to all the interest applicants that diploma in respective discipline as mentioned in the "Notice inviting Recruitment" (available on www.govt.thapar.edu) is the essential qualification for applying for these posts."
8. However, after the issuance of the said clarification notice, the Government started to decline the application forms submitted by the candidates who possessed B.Tech/B.E degrees directly after passing the 10+2 examination without passing the diploma, and messages were also sent to the rejected candidates informing them about the rejection of their candidature. This led to the filing of the writ petitions. On 23.12.2016 the following order was passed:-
"The five petitioners have applied online for competing against the post of Junior Engineers in Civil/Mechanical/Electrical Fields pursuant to the Advertisement dated 24.11.2016 (P.1). Although they do not have the advertised qualification of Diploma, however, they possess the higher qualification of degrees in the field of Civil Engineering/ Electric/ Mechanical.
5 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 6 2023:PHHC:070956 The grievance of the petitioners is that they have been treated as ineligible inspite of the law settled by a Full Bench of this Court in Manjit Singh Vs. State of Punjab & Ors. 2010 (3) SCT 703.
Notice of motion for 30.1.2017.
On the asking of the Court, Mz. Sudeepti Sharma, DAG, Punjab accepts notice on behalf of respondents-State. Learned counsel for the petitioners undertakes to supply requisite number of copies of paper book to her during the course of the day.
In the meanwhile, the petitioners shall be treated as provisionally eligible provided they fulfil other conditions of eligibility and permitted to join the selection process subject to the decision of the writ petition.
To be shown in the urgent list."
9. Subsequently, on various applications filed by the diploma holders, they have been impleaded as parties. It may be noticed here that the candidates possessing Engineering degrees participated in the recruitment exam and on the basis of their higher merit in the recruitment examination, they were appointed and they are working for the last 6 years. CWP-6183-2021 and CWP-6113-2021 have been filed pursuant to a fresh recruitment notice issued in the year 2021. Pursuant to an interim order dated 17.03.2021, the Punjab Public Service Commission amended the recruitment notice and permitted the degree holders to participate in the recruitment process. On 29.09.2021, the Government also carried out the amendment in Appendix B of 'the 2011 Rules', which now reads as under:-
"Should possess minimum three years Diploma of Junior Engineer in Civil Engineering or Mechanical Engineering or Electrical Engineering from a State 6 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 7 2023:PHHC:070956 Technical Education Board or from a recognized university or institution or Higher Qualification in the same discipline i.e Degree in Civil or Mechanical or Electrical from a recognized university or institution."
10. The writ petitions are contested not only by the State of Punjab but also by the private respondents, who are the diploma holders.
11. Heard the learned counsel representing the parties at length and with their able assistance perused the paperbook as well as the written note of their submissions. It may be noted here that a three Judges Bench in Manjeet Singh vs. State of Punjab 2010, (3) SCT 703 as noticed in the order dated 23.12.2016, held that the candidature of the candidates possessing higher qualifications cannot be rejected, particularly when the higher qualification is acquired in the same stream. It may be noted here that the aforesaid issue has been drawing the attention of the Court from time to time. In P.M.Latha and another vs. State of Kerala and others, (2003) 3 SCC 541, the Supreme Court held that the decision on whether Teachers Training Certificate or B.Ed should be the source of recruitment is a matter of the State's recruitment policy. The State's decision to prescribe only Teachers Training Certificate for primary teachers is logical and justified. The Division Bench's judgment was held illegal, inequitable and unjust. The appellants (Teachers Training Certificate candidates) were unjustly deprived of fair selection and appointment. During that time only in Yogesh Kumar vs. Govt (NCT of Delhi), 2003 (3) SCC 548, a case on similar issues was decided. Once again this issue arose for consideration 7 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 8 2023:PHHC:070956 in Jyoti K.K vs. Kerala Public Service Commission, (2010) 15 SCC
596. The Court, after analyzing the facts of the case, held that there was no exclusion of the candidates who possessed higher qualification to participate in the recruitment process. Thereafter, the matter was considered by the Supreme Court in the State of Punjab vs. Anita, (2015) 2 SCC 170. In the aforesaid case, an aided school issued an advertisement/ recruitment notice which was not in consonance with the qualification prescribed by the Punjab Privately Managed Recognized Schools Employees (Security of Service) Rules, 1981. Thus, the Supreme Court held that since the recruitment notice issued by the school was in violation of the aforesaid rules, which were applicable at that point, hence, the judgment of the High Court was set aside. Thereafter, the matter was once again considered by the Supreme Court in Zahoor Ahmed Rather and others vs. Sheikh Imtiyaz Ahmed and others, 2019 (2) SCC 404. It was held that while prescribing a qualification for a post, the State as an employer may legitimately bear in mind several features including the nature of the job, aptitude required for the efficient discharge of duties, the functionality of qualification and the contents of the course of study which leads upto the acquisition of the qualification. The relevant para that quotes the aforesaid discussion is extracted hereunder:-
"23. 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 8 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 9 2023:PHHC:070956 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 matter of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K 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 turned."
12. In substance, the Supreme Court has held that it is not appropriate for the Court to go into the aforesaid issue particularly when the State being the employer has already prescribed the qualification needed to recruit the employees.
13. This matter once again came up for consideration before the Supreme Court in Puneet Sharma and others vs. Himachal Pradesh State Electricity Board and another, 2021 AIR (SC) 221. In this judgment, the Court interpreted the language used in the service rules and held that the term "minimum" used in the statute along with the use of term 'with', which must be read conjunctively, allows degree holders to apply for the post of Junior Engineers.
14. Recently, in Unni Krishnan CB and others vs. UOI and others Civil Appeal 7118 of 2013 decided on 18.03.2023 the Court while adjudicating upon the claim for promotion to the post of Superintendent BR Grade I and Assistant Engineer as per column no.11 9 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 10 2023:PHHC:070956 of General Reserve Engineer forced Group C & D recruitment Rules, 1982, held that it is not for the Court to hold that the diploma courses offered by the College of Military Engineer, Pune, are treated to be equivalent to the diploma in Civil Engineering.
15. Learned counsel representing the petitioner has while filing the written submissions contended as under:-
"5. That a combined reading of the qualifications with the Note and Clause 11 show that the prescribed qualifications are minimum qualifications and not essential qualifications.
6. That the rules nowhere reveal or state that the qualifications as laid down are essential qualifications and the rules do not bar any person holding a higher qualification in the same field for appointment.
7. That before and after the present advertisement no.04 of 2016 the candidates with higher qualification of Degree were considered eligible for recruitment to same as well as similar posts of JE's governed by the same Service Rules.
8. That the reply dated 30.07.2021 by way of affidavit of Ishwar Dass Goyal, Chief Engineer/ Headquarter & Dispute Resolution, Department of Water Resources, Punjab, Chandigarh on behalf of Respondent no.1 and 2 was filed before this Hon'ble Court in this present writ petition.
In para 4 of the reply, it was stated that in view of another writ petition of same nature CWP No.6183/2021 titled as Sukhvir Singh vs. State of Punjab and another challenging the advertisement No.1 of 2021 dated 05.03.2021 on basis of the same issue of petitioner's candidature not being accepted due to higher qualification being filed, the matter has been reconsidered by the department and it has been decided to consider the candidature of the candidates for the direct recruitment of Junior Engineers who possess the higher qualification in the same stream and the same was been conveyed to Punjab Public Service Commission, Patiala vide letter no. 10/23/2020-2IP3/632 dated 26.3.2021 for amendment in the 10 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 11 2023:PHHC:070956 advertisement of direct recruitment of Junior Engineers. Therefore, the petitioner therein was then considered eligible to participate in the selection process.
All such writ petitions were declared as infructuous as the Degree holders were considered eligible. The said recruitment was for same post of JE in same Department and governed by same Rules.
9. That earlier in the year 2012 Govt. issued an advertisement for the same post in the same department with the same education qualification as eligibility and later the respondents had issued corrigendum making degree holders of B.Tech of Civil/Mechanical/Electrical also eligible for applying for the post of Junior Engineer in pursuance to the adveritsement dated 16.08.2012 (Annexure P-4)
10. That now the petitioners have come to know that even the Punjab Water Resources Department Junior Engineer (Group B) Rules 2021 have been notified on 23.09.2021 whereby the qualification for direct recruitment of Junior Engineer were given as :-
"Should possess minimum three years Diploma of Junior Engineer in Civil Engineering or Mechanical Engineering or Electrical Engineering from a State Technical Education Board or from a recognized university or institution or Higher Qualification in the same discipline i.e Degree in Civil or Mechanical or Electrical from a recognized university or institution. A copy of the notification is attached alongwith.
11. That said Rules govern the present posts in question and have not been challenged. After the aforesaid Rules, it cannot be argued that the State/ Rules requires diploma holders only for recruitment to post of JE and especially in view of the fact that atleast since 2012 till date the degree holders are being considered eligible for the recruitment for the same posts and appointments have been made on the basis of merit in written tests irrespective of Diploma or Degree Holders by the Department itself. (latest Advertisement and Corrigendum attached) only for the recruitment in question a different interpretation could not have been to discriminate against petitioners and deny them the same opportunity as has always been given to 11 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 12 2023:PHHC:070956 others and therefore only the State has clarified the Rules and changed the stand.
12 That the abovesaid notification of Rules in 2021 also has to be construed as clarifactory, declaratory and curative in nature made to clear the doubts in the required qualifications and would have retrospective application and cannot be construed to be only prospective. Especially, in view of the fact that the higher qualifications have been considered eligible and appointed in various recruitments for same posts governed by same Rules in the same Department atleast since 2012. The law regarding retroactivity of such amendment has also been discussed in the attached judgment relied upon of Puneet Sharma and others vs. Himachal Pradesh State Electricity Board Ltd. And another 2021 (2) SCT 323, wherein the candidates with higher qualification were considered eligible.
13. That in advertisement no.01 of 2016, just a month before the present advertisement, for the posts of Junior Engineer Civil and Mechanical in the Punjab Water Resources Management and Development Corporation (subsidiary of the irrigation Department) with similar nature of job and similar qualifications the candidates having B.E/B.Tech were also allowed to participate and selected as per their merit.
14. That the essential qualification for teaching a Diploma Course is a Degree in Engineering (Annexure P-9)
15. That a person holding three year diploma in Engineering is eligible for admission to second year in B.Tech/B.E in the same filed of his diploma meaning thereby that B.Tech/B.E is considered a higher qualification than three years diploma. Moreover, the syllabus and curriculum of diploma and degree are same but in degree every topic is taught in more depth and detail with much more pratical training as well, being taught in the same institutions and is regulated by the same authority i.e AICTE (Annexure P/8).
16. That the Hon'ble Supreme Court as well as Hon'ble High Court in various cases have held that when for the next higher post, degree in Engineering has been prescribed and accordingly, degree is definitely higher qualification than diploma, being the qualification prescribed for the lower post and as such acquisition of higher qualification pre-suposes acquisition of lower 12 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 13 2023:PHHC:070956 qualification and thus, Rules do not disqualify degree holders for being appointed to the lower power. The ratio of such judgments squarely applies to the instant case, inasmuch as, for direct recruitment to the posts of Assistant Engineer, the prescribed qualification is Degree in Engineering and accordingly for the inferior post of Junior Engineer, a degree holder has requisite qualification. The Judgments humbly relied upon by the petitioner being:-
i) Puneet Sharma and others vs. Himachal Pradesh State Electricity Board Ltd. And another 2021 (2) SCT 323.
ii) Manjit Singh vs. State of Punjab 2010 (3) SCT 703
iii) Jyoti K.K vs. Kerala Public Service Commission 2010 (15) SCC 596.
iv) Puneet Sharma vs. Punjab State Agricultural Marketing Board 2013 (1) SCT 835.
v) S.Gurmeet Singh vs. State 2008 (1) JKJ 68.
vi) Karan Deep vs. State of Punjab and others CWP No.16671 of 2012 DOD 26.04.2013.
vii) Ankur Kataria and others vs. State of Punjab and another CWP-13439 of 2012 DOD 30.07.2012
viii) Sukhdeep Singh Grewal and others vs. State of Punjab and another CWP No.17002 of 2012 DOD 17.01.2013."
16. On the other hand, the State while filing the written synopsis has given detailed description of the facts as already noticed, however, at the time of arguments, learned State counsel took a stand that the petitioners were ineligible on the date of the recruitment notice. Learned senior counsel representing the respondent has filed the written submissions while contending as under:-
"1) Conjoint reading of statutory rules +advertisement+notice dated 08.12.2016 clearly shows that the qualification of diploma is the essential qualification for appointment.
13 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 14 2023:PHHC:070956 Further Rule 5 specifically provides that any candidate who does not possess qualification as provided in Appendix 'B' cannot be appointed to the post in question. Rule 5 of 2011 Rules read with 1994 Rules provides complete bar upon appointment of petitioners who are degree holders.
2) Essential qualification is the basic and mandatory requirement for appointment and the same cannot be ignored at all.
3) Degree and diploma in the respective disciplines have not been held to be equivalent. Further in the rules and advertisement it has nowhere been provided that degree is equivalent to diploma or degree holders are to be considered eligible for appointment.
4. It has been time and again held by the Hon'ble Courts that the employer/recruitment body alone has the power to prescribe qualifications. Further, statutory rules cannot be ignored and nor can anything be added to the rules which is not specifically stated. Since the Rules specifically prescribes for diploma to be an essential qualification, therefore, degree holders cannot claim any right as they do not possess the essential qualification of diploma."
17. After having analyzed the arguments of the learned counsel representing the parties, it is evident that the courts have been adopting two different lines of reasoning to decide such cases. In the first line, the approach is that the Court should not decide on the matters of equivalence particularly when the State being the employer has already prescribed a specific qualification for recruitment after taking into account the requirements of the job, apart from the various other factors including the aptitude requisite for the efficient discharge of duties, the functionality of qualification and the contents of the course of studies which leads upto the acquisition of the requisite qualification. The Courts have also held that the prescription of qualification for a post is a 14 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 15 2023:PHHC:070956 matter of the recruitment which is a part of State policy and it is not the function of the judiciary to expand upon the ambit of the prescribed qualification while exercising its powers under the judicial review. This reasoning is based upon the principle that equivalence of a qualification is not a matter which can be determined in exercise of powers of judicial review. On the other hand, the another line of reasoning laid in Puneet Sharma's case wherein after examining the language used in the rules, the Supreme Court held that from the reading of the rules, the degree holders were also eligible. Therefore, while stipulating that the qualification required should be at minimum level, the candidates with higher qualification in the same field could not be excluded. In that case, the Supreme Court was once again considering the recruitment of Junior Engineers and degree holders in the relevant discipline who had applied for the position which was based on a recruitment examination. Similarly, the Full Bench of this Court in Manjeet Singh's case (supra) has also adopted the same reasoning.
18. Now, the Bench proceeds to discuss the 2011 Rules which have been extracted above. The expression used in the aforesaid Rules is "should possess". The word "should possess" is not equivalent to "must" or "shall possess". According to the dictionary meaning of the word "should", it implies an expectation or recommendation. Moreover, the statute has not used the word "only" or "exclusively". Furthermore, the recruitment is based upon the written recruitment examination. The petitioners are higher in merit than the private respondents. Clause 11 of the recruitment notice, which has already been extracted itself 15 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 16 2023:PHHC:070956 recognizes the higher qualification. Additionally a similar recruitment notice issued in the year 2012 for the recruitment on the same post by the same Department was amended to consider degree holders for appointment as Junior Engineers. Most importantly in 2021, the State itself amended the Rules which entitled the degree holders or persons with higher qualification eligible to be considered for the post. In Puneet Sharma's case (supra), it was held that clarificatory amendment brought will be applicable retrospectively. Correspondingly, the petitioners who were appointed in the year 2017 have earned sufficient experience. The State has not taken a stand that the petitoners on account of their higher qualification have failed to discharge the duties and responsibilities of the post of Junior Engineer or they are in any way lacking in the knowledge or aptitude for the job. The petitioners have already served for a period of 7 years. Cumulatively taking all these factors into account, this Court is required to decide the case.
19. At this stage, it would be appropriate to anlayze the arguments of the learned counsel representing the private resondents. The first argument is based upon literal interpretation of the qualification prescribed in Appendix B which has already been extracted alongwith Rule 19 of the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 which enables the Government to relax the rules in case the necessity arises. Rule 19 is extracted as under:-
"The Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 16 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 17 2023:PHHC:070956
19. Power to relax :- Where the government is of the opinion that it is necessary to expedient so to do, it may be order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons.
Provided that the provisions relating to educational qualifications and experience, if any, shall not be relaxed."
20. It may be noted here that expression used in Appendix B is "should" and not "must". Moreover, as already noticed in 2021 the State has amended the Rules which enable the degree holders to apply. Hence, there is no substance in the first argument of the learned counsel representing the State. As regards the second argument, it is important to note that the petitioners are degree holders. The learned counsel representing the respondents has attempted to refer to the fundamental aspects of the degree and diploma, which this Court does not deem appropriate to delve into. However, in common parlance, a degree is generally considered a higher qualification than a diploma. The judgments passed by the Supreme Court have universally enunciated that the court can interpret provisions by using interpreting tools. On interpretation of the provision, this Court has come to the conclusion that the essential qualification prescribed in the rules and the recruitment notice is only the basic qualification and there is no bar in considering the candidates with higher qualifications to the select list. As regards argument no.3, it should be noted that this Court is refraining from declaring degree and diploma in the respective fields as equivalent. The next argument of the learned senior counsel is based upon the judgments 17 of 19 ::: Downloaded on - 22-05-2023 01:02:57 ::: Neutral Citation No:=2023:PHHC:070956 CWP-26338-2016 (O&M) and other connected cases 18 2023:PHHC:070956 passed by the Courts from time to time which have already been examined at length.
21. Considering the facts of the case, the writ petitions are allowed, especially, since the Court deems it inappropriate to declare the petitioners ineligible at this stage. It is important to note that the Court is not engaging in the task of equating degrees and diplomas in this particular case. Rather, the Court underscores the state's own declaration regarding the eligibility of degree holders for the specific post in question. As a result, there exists no reasonable ground to perpetuate injustice upon the candidates who have been selected based on merit and in accordance with the State's established policy and clarification. It is worth noting that the petitioners have not only been appointed but have also worked for nearly six years without any complaints. However, it may be noticed that this bunch of the writ petitions has been decided in the peculiar facts of the case.
22. All the pending miscellaneous applications, if any, are also disposed of.
16.05.2023 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Sr. Case No. Parties Name
No.
1. CWP-26338- Rajbir Singh and others vs. State of Punjab and
2016 others
2, CWP-7997- Daljeet Singh vs. State of Punjab and others
2017
3. CWP-27481- Shafit Vohra vs. State of Punjab and others
2016
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4. CWP-27477- Avrinder Kumar and others vs. State of Punjab 2016 and others
5. CWP-174- Harsimran Singh vs. State of Punjab and others 2017
6. CWP-8684- Lakshay Garg vs. State of Punjab and another 2017
7. CWP-23709- Bhawanpreet Singh and others vs. State of 2017 Punjab and others
8. CWP-27475- Dinesh Garg and another vs. State of Punjab and 2016 another
9. CWP-27474- Rajdeep and others vs. State of Punjab and others 2016
10. CWP-27473- Amandeep Singh and others vs. State of Punjab 2016 and others
11. CWP-27471- Jasnaina Kamboj vs. State of Punjab and others 2016
12. CWP-27336- Yashika Gupta vs. State of Punjab and others 2016
13. CWP-27335- Gurdeep Singh and others vs. State of Punjab and 2016 others
14. CWP-27229- Ravinder Singh and others vs. State of Punjab 2016 and others
15. CWP-27215- Kanwardeep Singh and others vs. State of Punjab 2016 and others
16. CWP-27207- Amiteshwar Singh vs. State of Punjab and 2016 another
17. CWP-27168- Sushant Walia vs. State of Punjab and others 2016
18. CWP-26017- Maninder Pal Singh vs. State of Punjab and 2016 others 16.05.2023 (ANIL KSHETARPAL) rekha JUDGE Neutral Citation No:=2023:PHHC:070956 19 of 19 ::: Downloaded on - 22-05-2023 01:02:57 :::