Abha Tripathi And 24 Others vs State Of U.P. And 3 Others on 16 September, 2016

[Cites 23, Cited by 5]

Allahabad High Court

Abha Tripathi And 24 Others vs State Of U.P. And 3 Others on 16 September, 2016

Bench: B. Amit Sthalekar





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
RESERVED
 
									AFR
 
Court No. - 18
 

 
Case :- WRIT - A No. - 30313 of 2016
 

 
Petitioner :- Abha Tripathi And 24 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Siddharth Khare,Harsh Bardhan Choubey,Sr. Advocate,Vikrant Pandey
 
Counsel for Respondent :- C.S.C.,Kailash Singh Kushwaha
 
			and 
 
Case :- WRIT - A No. - 36165 of 2016
 

 
Petitioner :- Siddh Nath Yadav
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Mahendra Singh,Ashok Kumar Yadav
 
Counsel for Respondent :- C.S.C.,Kailash Singh Kushwaha
 

 
			and 
 
Case :- WRIT - A No. - 30314 of 2016
 

 
Petitioner :- Ajay Tiwari
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Siddharth Khare,Ashok Khare
 
Counsel for Respondent :- C.S.C.,Kailash Singh Kushwaha
 
			***********************
 

 
Hon'ble B. Amit Sthalekar,J.

Since the controversy involved in all the above writ petitions is similar, therefore, the above writ petitions are being decided by this common order.

Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare for the petitioners, Sri K.S. Kushwaha, learned counsel for the respondent no.4 and Sri Mata Prasad, learned Additional Chief Standing Counsel for the respondents no.1 to 3.

Initially writ petition no. 30313 of 2016 (Abha Tripathi and 24 others Vs. State of U.P. and others) was filed by the petitioners for a direction to the respondents to hold interview of the post of Gram Panchayat Adhikari in pursuance of the Gram Panchayat Adhikari Examination-2015 and further to treat them as fully qualified and eligible for the said post without raising any objection with regard to the non-possession of the Computer Concept Course (CCC) certificate awarded by the DOEACC Society. Subsequently, by way of an amendment application which was allowed, the petitioners also challenged para 8 of the Advertisement No. 7(3)/2015.

The petitioners of W.P. No. 30313 of 2016 who are 25 in number applied against the advertisement no.7(3)/2015 for the post of Gram Panchayat Adhikari under the Panchayat Raj Department of the State. They were issued admit cards and they also appeared in the written examination. The result of the written examination was published on 28.4.2016 and all the petitioners were shown to have qualified the written examination. Thereafter, the interviews were commenced from 30.5.2016 and are to continue till October, 2016. The petitioners have also been issued letters by the Uttar Pradesh Subordinate Services Selection Commission, Lucknow-respondent no.4 (hereinafter referred to as 'Commission') to participate in the interview on the date prescribed therein. The petitioners appeared in the interview on various dates but they were not permitted to participate in the interview on an objection raised by the Commission that the petitioners did not possess the CCC certificate awarded by the DOEACC Society.

The admitted case of the petitioners is that none of them possess the CCC certificate in computer from the DOEACC Society. The qualification of the petitioners as given in para 13 of the writ petition is as under:-

Sr. no.

Petitioner Educational Qualification 1 Abha Tripathi B.Sc. in Information Technology.

Amod Chauhan Bachelor of Computer Application and Master's Degree in Computer Application.

Ashish Kumar Srivatava Bachelor of Technology in Information Technology.

Ajay Yadav High School and Intermediate Examination Certificate with Computer as one of the subjects.

Ajeet Pratap Singh Bachelor of Technology in Computer Science and Engineering.

Akhilesh Pal Singh High School with Computer as one of the subjects and Bachelor of Technology in Mechanical Engineering.

Ashok Kumar Singh Bachelor of Computer Application.

Radha Raman Khare Diploma in Computer Application and Bachelor Degree in Computer Application.

Sanjeev Kumar Singh Bachelor of Science with Mathematics and Computer Science.

Pankaj Katiyar Post-graduate Diploma in Computer Application.

Yogesh Tripathi Bachelor of Technology Degree in Electrical Engineering.

Vimal Kumar Sharma Master of Computer Application.

Mohd. Akil Jamal Bachelor of Arts with Computer as a subject.

Vaibhav Rai Master's Degree in Computer Application.

Sandeep Kumar Nayak Bachelor of Technology Degree in Mechanical Engineering.

Vinay Kumar Bachelor of Technology Degree in Information Technology.

Vijay Kumar Misra Advanced Diploma in Computer Application.

Bharat Singh Intermediate Certificate with Computer Science and Bachelor Degree in Computer Application.

Gulab Chand 3 year Diploma Course in Computer Science and Engineering.

Imran Khan Master's Degree in Computer Application.

Ajit Singh Bachelor of Technology Degree in Computer Science & Engineering.

Ankit Singh Gautam Bachelor of Technology Degree in Computer Science & Engineering.

Pawan Kumar Master's Degree in Computer Application.

Himansu Singh Bachelor of Technology Degree in Electronics & Communication Engineering.

Abhay Pratap Singh 'O' Level Examination Certificate in Computer awarded by DOEACC Society.

Sri Ashok Khare, learned Senior Counsel appearing for the petitioners submitted that the requirement of a CCC certificate awarded by the DOEACC Society was not an essential qualification mentioned for the post of Panchayat Raj Adhikari in the Rules, 1978 as amended and therefore, the requirement of this certificate from the DOEACC Society was an importation in the impugned advertisement and was in violation of the provisions of Rule 8 of the Rules, 1978.

The second leg of the submission of the learned Senior Counsel is that all the petitioners are intermediate pass and they have obtained higher qualification in the subject of computer, therefore, insistence on a CCC certificate from the DOEACC Society was wholly unwarranted. Reference has been made to the following judgments of the Supreme Court:-

(a) 2010 (15) SCC 596 (Jyoti K.K. And Others Vs Kerala Public Service Commission and others);

(b) 2011(1) 115 (P&H)(FB) (Manjit Singh Vs State of Punjab And Others);

(c) 2012 (3) SCC 129 (Chandrakala Trivedi Vs State of Rajasthan and others);

(d) 2006 (11) SCC 156 (State of Haryana Vs Abdul Gaffar Khan) Reliance has also been placed upon a judgment of the learned Single Judge dated 9.10.2015 passed in Writ petition no. 44281 of 2015 (Devendra Singh and Others Vs State of U.P. and another).

The submission is that the qualifications possessed by the petitioners are much higher than the CCC certificate awarded by the DOEACC Society which is a very basic qualification in the knowledge of computer operation. The contention is that the CCC certificate is an 80 hours course comprising 25 hours of theory studying, 50 hours of practical and 5 hours of tutorials which can be completed in 10 days. The petitioners also contend that for the post of Junior Assistant/Stenographer, a Government Order was issued on 26.5.2015, Annexure-4 to the writ petition mentioning therein that for the post of Junior Assistant/Stenographer for purposes of equivalence with the CCC certificate issued by the DOEACC Society, if any candidate has a Diploma or Degree in Computer Science, he would be eligible to apply for the post of Junior Assistant/Stenographer. The submission therefore, is that what has been held to be good for the post of Junior Assistant/Stenographer should not be a disqualification for the post of Gram Panchayat Adhikari.

Shri Khare also sought to draw a parallel with the post of Gram Vikas Adhikari under the Rural Development Department and submits that the said post is equal in rank and qualification to the post of Gram Panchayat Adhikari under the Panchayat Raj Department and carries the same pay scale and, therefore, in terms of the Government Order dated 26.5.2015, the respondents should not insist upon possession of the CCC certificate issued by the DOEACC Society and the qualifications possessed by the petitioners should suffice for appearing in the selection for the post of Gram Panchayat Adhikari.

Shri Khare has drawn the attention of the Court to para 3 of the terms and conditions laid down in the advertisement dated 17.8.2013 relating to the post of Gram Vikas Adhikari and submits that therein it was provided that the candidate must have the eligibility qualification of Intermediate pass (Science Group) or any other qualification declared by the Governor to be equivalent to Intermediate plus he must have the CCC certificate in computer from the DOEACC Society or a qualification higher than that of CCC and therefore, it is submitted that since the petitioners have a much higher qualification than CCC in computer from DOEACC Society, therefore, they cannot be held to be ineligible for the post of Gram Panchayat Adhikari.

It is further submitted that even in the selection to the District Courts in Group 'C' clerical cadre, CCC certificate in computer from the DOEACC Society was an essential qualification but later on a circular was issued by the High Court on 6.1.2016 directing that candidates who have higher qualification in Computer Science or equivalent to CCC certificate from a University or any Institute duly recognized by AICTE/UGC/Government of India/State Government with Computer as a subject would also be eligible.

A parallel was also sought to be drawn with an advertisement for the clerical post in the U.P. Jal Nigam and therefore, the decision of the Commission in insisting upon a CCC certificate from DOEACC Society has been assailed. The submission of the learned Senior Counsel further is that the Uttar Pradesh Gram Panchayat Adhikari Rules, 1978 (hereinafter referred to as Rules, 1978) which came into effect on 10.11.1981, prescribes the essential qualification for appointment and in Rule 8 lays down the academic qualifications and para 9 thereof specifies the preferential qualification required for the post of Gram Panchayat Adhikari. It is stated that in the Rules, 1978 there is no requirement of a candidate possessing a CCC certificate awarded by the DOEACC Society as an essential qualification for the post of Gram Panchayat Adhikari. The submission, therefore, is that the condition laid down in para 8 of the impugned advertisement being contrary to the statutory Rules, the same cannot be insisted upon or applied in the case of the petitioners.

A counter affidavit has been filed on behalf of the respondent no.4-Commission. Sri K.S. Kushwaha, learned counsel appearing for the Commission submits that the requisition was sent to the Commission by the Director, Panchayati Raj, Lucknow for filling up 3587 posts of Gram Panchayat Adhikari and along with the requisition the Rules governing the service conditions of Gram Panchayat Adhikari known as the Uttar Pradesh Panchayat Sewak Service Rules, 1978 (hereinafter referred to as Rules, 1978) as amended vide Notification dated 27.3.1980 alongwith Government Order dated 22.11.2011 issued by the Finance Department to the Secretary, Panchayati Raj and Government Order dated 23.11.2012 issued by the Special Secretary, Panchayati Raj was also made available. It is stated that the impugned advertisement was issued strictly in terms of the requisition sent by the Panchayati Raj Department.

The submission is that as per the terms and conditions of para 8 of the advertisement a candidate is required to have passed the Intermediate examination from the Secondary Education Board or any other examination recognised by the Government and equivalent to the same and also possess the CCC certificate from the DOEACC Society. So far as the possession of CCC certificate from the DOEACC Society is concerned, there is no equivalence clause mentioned in para 8 of the advertisement and therefore, the candidate has no option but to possess the CCC certificate awarded by the DOEACC Society. It is also stated that none of the petitioners are in possession of the CCC certificate awarded by the DOEACC Society.

Sri K.S. Kushwaha, learned counsel for the Commission, however raised a preliminary objection that the petitioners in their application form with regard to the column regarding possession of the requisite qualification of CCC certificate awarded by the DOEACC Society had made an express declaration that they indeed possessed the requisite qualification and it is for this reason that they were allowed to appear in the selection. The copies of application form of some of the petitioners has been filed as Annexure-1 to the counter affidavit.

Along with the counter affidavit, the application forms of the petitioners have also been filed and it is submitted that the petitioner no.1-Abha Tripathi and the petitioner no.2-Amod Chauhan have in Column No.2 under the head of essential qualification details, with regard to possession of CCC certificate awarded by the DOEACC Society have written 'YES' in their application form. Shri K.S. Kushwaha submits that this is a false declaration since on their own admission in the present writ petition the petitioners are not in possession of the CCC certificate awarded by the DOEACC Society and it is only on the basis of their false declaration that they were allowed to appear in the written test. Therefore, the petitioners cannot claim any benefit by asserting that they have already appeared in the written test, such appearance being on the basis of misleading information.

The stand of the respondents in para 21 of their counter affidavit is that the order dated 22.11.2011, Annexure-4 to the counter affidavit was infact a recommendation made by the Finance Ministry addressed to the Principal Secretary, Panchayati Raj, Government of U.P. laying down the eligibility conditions of CCC certificate in computer from the DOEACC Society in the Grade Pay of Rs.2000/- for the post of Panchayat Raj Adhikari whereas the Government Order dated 23.11.2012, page 52 of the counter affidavit was a letter written by the Government of U.P. to the Director, Panchayati Raj, Lucknow which referred to the letter of the Finance Ministry dated 22.11.2011 but for the post of Gram Panchayat Adhikari it laid down the eligibility qualification of CCC certificate in computer from the DOEACC Society in the Grade Pay of Rs. 2000/- with immediate effect. It is stated that neither the order of the Finance Ministry nor the order of the Government of U.P. dated 23.11.2012 mentions any qualification equivalent to CCC in computer from the DOEACC Society, therefore, the question of treating the qualifications acquired by the petitioners as being equivalent to CCC certificate from DOEACC Society does not arise.

The counsel for the Commission has also submitted that the petitioners have not challenged the validity of the Government Order dated 22.11.2011 and 23.11.2012 by which possession of the CCC certificate issued by the DOEACC Society was prescribed as an essential qualification for the post of Gram Panchayat Adhikari. It is also submitted that even if, the Rules are silent with regard to the possession of CCC certificate from the DOEACC Society but since the requirement of such a certificate has been introduced through the Government orders dated 22.11.2011 and 23.11.2012, the same would be an eligibility criteria necessary to be possessed by the petitioners. In support of the above submissions, Sri K.S. Kushwaha has placed reliance upon a judgment of the Supreme Court reported in 1992 (1) SCC 20 (Comptroller and Auditor General of India Vs Mohan Lal Mehrotra). Reliance has also been placed upon the judgment of the Supreme Court reported in 2008 (4) SCC 171 (Dhananjay Malik & Ors. Vs State of Uttaranchal & Ors.). Reference has also been made to a Single Judge judge of Lucknow Bench of the Allahabad High Court in Service Single No.6655 of 2016 (Alok Kumar Misra Vs State of U.P. and others) along with other connected petitions.

Further by way of illustration the submission of the learned counsel for the Commission is that the Rules, 1978 do not lay down the pay scale of the post but that does not in itself mean that the Government cannot determine the pay scale from time to time through Government Orders. He submits that the impugned Advertisement No. 7(3)/2015 itself mentions the pay scale of the post of Gram Panchayat Adhikari as Rs.5200-20200/- in the Grade Pay of Rs.2000/- and therefore, the submission is that likewise the requirement of a CCC certificate awarded by the DOEACC Society as an essential qualification was also prescribed through the Government Orders referred to hereinabove and mentioned in para 8 of the advertisement and the advertisement does not contain any equivalence clause making any other qualification as equivalent to a CCC certificate from the DOEACC Society. The only equivalence referred to is with regard to the intermediate examination held by the Secondary Education Board or any other equivalent Board.

Copy of the Uttar Pradesh Gram Panchayat Adhikari Rules, 1978 have been filed alongwith the rejoinder affidavit. Rule 8 thereof reads as under:-

"8. Academic Qualification.- A candidate for direct recruitment to the post of Panchayat Sewak must have passed Intermediate examination of the Board of High School and Intermediate Examination or an examination recognized as equivalent thereto."

From a perusal of Rule 8, it is noticed that "a candidate for direct recruitment to the Panchayat Sewak must have passed Intermediate examination of the Board of High School and Intermediate Examination or an examination recognized as equivalent thereto". Rule 3 (g) defines 'Service' to mean the Uttar Pradesh Gram Panchayat Adhikari Service and therefore, the term Panchayat Sewak must be read as being synonymous with Gram Panchayat Adhikari. It is not disputed by any of the parties that the Rules, 1978 do not provide for acquisition of knowledge of computer or a CCC certificate much less a CCC certificate awarded by the DOEACC Society. The requirement of CCC certificate from DOEACC Society was introduced by the Government Order dated 23.11.2012. The Government Order dated 23.11.2012 itself has not been subjected to any challenge in the present writ petition, however the submission of the learned Senior Counsel for the petitioners is that the petitioners possess a higher qualification in computer which presupposes the basic knowledge of computer as required in the CCC course certificate which is awarded by the DOEACC Society which would imply that the petitioners were otherwise eligible for the post of Gram Panchayat Adhikari.

In para 15 of the writ petition, it is stated that the CCC certificate awarded by the DOEACC Society is a basic qualification in the knowledge of computer operations. The said course is an 80 hours course comprising of 25 hours of theory study; 50 hours of practical and 5 hours of tutorial. The said course can also be completed in ten days full time intensive course.

In para 11 of the counter affidavit filed by the Commission, the averments of para 15 of the writ petition have not been categorically denied. All that has been stated is that the petitioners do not possess the qualification required by the advertisement and therefore, merely possessing a higher qualification would not mean possessing the requisite qualification.

Shri K.S. Kushwaha in support of his submission has referred to a judgment of a learned Single Judge of this Court in Service Single no. 6655 of 2016 (Alok Kumar Misra Vs State of U.P. and others) along with other connected writ petitions decided vide judgment and order dated 2.5.2016. The post in question in that case was of Junior Engineer. The selection was conducted by the Commission. Rule 8 of the Uttar Pradesh Irrigation Department Civil Engineers Subordinate Service Rules, 1992 provided that a candidate for direct recruitment or promotion to a post in the service must possess any of the following qualifications:-

a) Diploma in Civil Engineering awarded by an Institution or University established by law in India.

b) Diploma in Civil Engineering awarded by the Board or Technical Education Uttar Pradesh.

c) National Certificate in Civil Engineering awarded by All India Council of Technical Education.

d) Three years Diploma in Civil and Rural Engineering by the Board of Technical Education Uttar Pradesh.

Rule 8 of the Uttar Pradesh Public Works Department Junior Engineer (Civil) (Group-'C') Service Rules, 2014 laid down the eligibility qualifications as under:-

A candidate for direct recruitment to the posts in the service must possess following qualification:-

(i) must have possessed the High School Examination of the Board of High School and intermediate Education, Uttar Pradesh or an Examination recognized by the Government as equivalent thereto.

(ii) Must possess three years Diploma in Civil Engineering from the Board of Technical Education, Uttar Pradesh or a qualification recognized by the Government as equivalent thereto.

The petitioners therein were all degree holders in Civil and Mechanical Engineering. The contention of the respondents was that the petitioners did not possess the requisite qualification and therefore, merely possessing a higher qualification of Degree in Engineering would not presuppose possession of lower qualification of Diploma. The learned Single Judge held that the possession of a Degree in Engineering is not the same as possession of a Diploma in Engineering as a candidate is not required to possess a Degree in Engineering in order to possess a Diploma in Engineering.

In my opinion the said judgment has no application to the present case as in that case the Junior Engineer (Civil) Group 'C' Service Rules, 2014 clearly mention possession of a Diploma as an essential qualification and the learned Single Judge has not held the Degree qualification to be equivalent to or higher than Diploma qualification.

The next judgment relied upon by the respondents is in Special Appeal No.829 of 2015 (Sanjay Kumar Srivastava and others Vs State of U.P. and others). That was a case relating to recruitment to the post of Additional Private Secretaries. The Uttar Pradesh Secretariat Personal Assistant Service (First Amendment) Rules, 2005 provided the qualifications in Rule 8 as under:-

(i) must possess Bachelor's degree from a University established by law in India or a qualification recognized by the Government as equivalent thereto;

(ii) must have a minimum speed of eighty words per minute and twenty five words per minute in Hindi shorthand and Hindi typewriting respectively;

(iii) must possess the knowledge of Computer in accordance with-

(a) the course prescribed for the Certificate Course in Computing (CCC) conducted by DOEACC Society, or

(b) the course conducted by the Board of High School and Intermediate Education, Uttar Pradesh or a course recognized by the Government as equivalent thereto.

The contention of the petitioners before the Court was that they should be allowed to participate in the third and final stage of examination comprising of computer test without any objection pertaining to their eligibility with reference to computer knowledge. The Division Bench referring to the provisions of Rule 8 (iii) (a) held that the Rule required that a candidate should have passed either the certificate course in computer conducted by the DOEACC Society or the course conducted by the Board of High School or Intermediate or any course equivalent thereto recognized by the Government. The Court interpreted the provisions of Rule 8 (iii) (a) and (b) together and held that the claim of the petitioners that holding of a computer test by the Commission would render holding of a particular certificate as redundant and the submission that holding of a proficiency certificate in computer or any other prescribed skill from a specific institution is not mandatory because the selecting body is also going to hold an examination in computers was rejected by the Division Bench as unacceptable. The Division Bench further held that it was perfectly open for the Commission which conducts the selection to mandate both the holding of a qualification and the passing of an examination conducted by the Commission. One is not a substitute for the other. When Rule 8 (iii) requires a course prescribed for the Certificate Course in Computing conducted by DOEACC Society, the said certificate is an essential qualification.

In my opinion, the said judgment has no application to the facts of the present case since the claim of the petitioners before the Court was for a direction to the respondents to allow them to participate in the third and final stage of examination comprising of computer test without any objection pertaining to their eligibility with reference to computer knowledge. In the case before the Division Bench about 1244 candidates had produced certificates regarding computer qualifications awarded by private institutions which according to the Commission were not in accordance with the advertisement and therefore, the insistence upon a CCC certificate awarded by the DOEACC Society which was held to be an autonomous scientific society of the Department of Information Technology under the Ministry of Communication and Information Technology, Government of India. The CCC certificate grades a candidate according to his performance in Grade 'A', 'B', 'C' and 'D'. In that case the effect of possession of a higher qualification in Computers or with Computers as a subject was not in issue.

The next judgment relied upon by the respondents is a judgment of the Supreme Court in the case of Dhananjay Malik & Ors. Vs State of Uttaranchal & Ors. reported in (2008) 4 SCC 171. The contention of the learned counsel for the Commission is that even if the rules are silent with regard to a particular eligibility qualification, the same can always be introduced through executive/administrative orders as long as they are not in violation of the statutory rules and do not supersede the statutory rules. This principle was reiterated by the Supreme Court in Dhananjay Malik (supra). In that case, the requisite qualification for the post of Assistant Teacher (Physical Education) was graduation degree in physical education or diploma in physical education from any recognized institution. Subsequently, the rule was clarified by the Government of India, Ministry of Education to the effect that B.P.E. Degree holders should also be treated at par with those who hold B.A./B.Sc./B.Com degree plus a diploma in physical education and should not be required to possess an additional B.A., B.Sc/B.Com. degree for purposes of employment as Directors of Physical Education or on other similar posts. The Supreme Court in para 14 of the judgment referring to a judgment of the Constitution Bench of the Supreme Court in the case of Sant Ram Sharma Vs State of Rajasthan, AIR 1967 SC 1910 held that the Government cannot amend or supersede statutory Rules by administrative instructions but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Paragraph 14 of the said judgment reads as under:

"14. A Constitution Bench of this Court in Sant Ram Sharma v. State of Rajasthan, has pointed out at AIR p.1914 that the Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point, Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."

The proposition of law laid down by the Supreme Court in Dhananjay Malik (supra) is indisputable. The judgment of the Supreme Court in Dhananjay Malik (Supra) in my opinion has no application to the facts of the present case. The question here is not whether the qualification possessed by the petitioners has been recognized to be equivalent to a CCC certificate issued by the DOEACC Society but whether the higher qualification possessed by the petitioners includes the basic knowledge of computers imparted through CCC course by the DOEACC Society.

Now taking up the case law cited by the learned Senior Counsel for the petitioners, the first judgment referred is (2012) 3 SCC 129, Chandrakala Trivedi Vs State of Rajasthan and others, para 8 thereof reads as under:-

"8. The word "equivalent" must be given a reasonable meaning. By using the expression "equivalent" one means that there are some degrees of flexibility or adjustment which do not lower the stated requirement. There has to be some difference between what is equivalent and what is exact. Apart from that, after a person is provisionally selected, a certain degree of reasonable expectation of the selection being continued also comes into existence."

Thus equivalent means that there are some degrees of flexibility or adjustment which do not lower the stated requirement. There has to be some difference between what is equivalent and what is exact. The respondents in their counter affidavit have not disputed that the qualifications possessed by the petitioners do not in any way cover the basic knowledge of computer imparted in the certificate course in computing (CCC) conducted by the DOEACC Society. The duration of the CCC course conducted by the DOEACC Society has been mentioned in para 15 of the writ petition which has not been denied by the respondents in para 11 of the counter affidavit except to say that the petitioners do not possess the requisite qualification.

In Jyoti K.K. And Others Vs Kerala Public Service Commission and Others, (2010) 15 SCC 596, the Supreme Court has held that higher qualification must clearly indicate or presuppose the acquisition of lower qualification prescribed for that post in order to attract that part of the rules to the effect that such of those higher qualification which presupposes the acquisition of lower qualification prescribed for the post shall also be sufficient for that post. Para 7 and 9 of the judgment read as under:-

"7. It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for that post in order to attract that part of the rule to the effect that such of those higher qualifications which presuppose the acquisition of the lower qualifications prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far.

8. ................

9. In the event the government is of the view that only diploma holders should have applied to post of sub-engineers but not all those who possess higher qualifications, either this rule should have excluded in respect of candidates who possess higher qualifications or the position should have been made clear that degree holder shall not be eligible to apply for such post. When that position is not clear but on the other hand rules do not disqualify per se the holders of higher qualifications in the same faculty, it becomes clear that the rule could be understood in an appropriate manner as stated above. In that view of the matter the order of the High Court cannot be sustained. In this case we are not concerned with the question whether all those who possess such qualifications could have applied or not. When statutory rules have been published and those rules are applicable, it presupposes that everyone concerned with such appointments will be aware of such rules or make himself aware of the rules before making appropriate applications. The High Court, therefore, is not justified in holding that recruitment of appellants would amount to fraud on the public.

In (2006) 11 SCC 153, State of Haryana Vs Abdul Gaffar Khan, the post in question was of Unani Dispenser. The qualification prescribed was:-

(i) Unani Dispenser from any recognized University/Institution or Board or Faculty of Indian System of Medicine established by law in India or Upvaidya of any recognized University/Institution or Board or Faculty of Indian System of Medicine established by law in India having the knowledge of Urdu;

(ii) Matric or its equivalent.

(iii) Knowledge of Hindi and English upto Matric standard.

In that case the respondent-candidates possessed the qualification of Bachelor of Unani Medicine and Surgery from Kanpur University apart from Matric with Hindi and 10+2 with Science. The Supreme Court held that the Haryana Ayurvedic/Homeopathic and Unani Technical Group (C) Service Rules, 1977 do not expressly exclude the degree in Unani Medicine and Surgery for the post of Unani Dispenser and it was held that the respondent-candidate possessed the requisite qualifications from recognized University/Institution or Board and were eligible for appointment on the post of Unani Dispenser. Para 6 of the judgment reads as under:-

"6. Aggrieved against the order passed by the State, the respective respondents filed Writ Petitions in the High Court to quash the action of the State to deny the appointment to them as Unani Dispenser. The High Court by its order dated.11.04.2005 allowed the Writ Petitions filed by the respective respondents and directed the State to offer appointment to both the contesting respondents in these Civil Appeals on the posts of Unani Dispenser within a period of one month from the date of receipt of certified copy of the order. Aggrieved by the said order, the State of Haryana has preferred the above appeals in this Court."

The next case relied upon by the learned Senior Counsel for the petitioners is the Full Bench decision of the Punjab and Haryana High Court in Manjit Singh Vs State of Punjab and Others reported in 2011(1) ESC 115 (P&H)(FB). In that case also all the petitioners possessed qualifications higher than the basic and minimum qualification prescribed in the advertisement and they were denied consideration for appointment to the post of Physical Training Instructor. Paragraphs 6,10,23,25,26 and 27 of the said judgment read as under:-

"6. The grievance in all the writ petitions is that all of them possessed qualifications higher than the basic and minimum qualification prescribed in the advertisement and they all being eligible have been arbitrarily and illegally denied the right of consideration for appointment to the posts. When these matters were being heard by learned Single Judge, two Division Bench judgments of this Court were cited on behalf of the contesting parties. A Division Bench comprising Hon'ble Mr. Justice V.S. Aggarwal and Hon'ble Justice G.S. Singhvi, as their Lordships were at the relevant time vide its judgment rendered in CWP No. 5386 of 1997 titled as Samandeep Singh and others v. State of Punjab and others, decided on 14.1.1998 allowed the writ petition filed on behalf of the candidates whose candidature was rejected, despite having higher qualifications with the following observations.

10. It has been contended on behalf of the petitioners that the rejection of candidature of the petitioners who admittedly possess higher qualification is arbitrary and violative of Articles 14 and 16 of the Constitution of India. Mr. Khosla, learned Additional Advocate General appearing on behalf of the State has attempted to justify the action of the respondents rejecting the candidature of the petitioners having qualifications of M.P.Ed, B.P.Ed and D.P.Ed on the ground that the PTI Teachers are reecruited to impart physical education at the primary level. The targeted class of student being small children, specialized kind of training is required for them. The Curriculum for primary students is different than the curriculum for students of secondary classes who are mature enough and are to be trained in a different manner. He has placed before us a compilation to urge that for primary students, the curriculum includes recreation and yoga, health education and sports psychology which are part of the C.P.Ed curriculum whereas these components and curriculum are not taught at the higher level of Physical Education like B.P.Ed, D.P. Ed, B.P.E., M.P.Ed. etc.

23. The sheet anchor of the State's case is the Division Bench judgment of this Court in the case of Jagjit Singh v. State of Punjab and others, 2009 (1) SCT 744, which has ruled against the eligibility of candidates possessing higher qualification only on the ground of variation in the curriculum. We have carefully gone through the aforesaid judgment. Only one component of the curriculum is noticed by Hon'ble Division Bench i.e. "Recreation" which is said to be studied by students of C.P.Ed. And is not included in the course of studies of B.P.Ed. The Hon'ble Division Bench in the aforesaid case, while referring to courses available at Kurukshetra University, decided not to examine the same in detail. It is also pertinent to note that the judgment in the case of Multan (supra) was not brought to the notice of the Hon'ble Division Bench in the case of Jagjit Singh (supra). It is also relevant to mention that the Hon'ble Division Bench in the case of Jagjit Singh (supra) was persuaded by the judgment of the Hon'ble Supreme Court in the case of Dilip Kumar Ghosh v. Chairman, 2005(7) SCC 567. In the case of Dilip Kumar Ghosh (supra) before the Hon'ble Supreme Court, the issue was whether a person possessing higher qualification is entitled to extra weightage of marks for appointment to the post. In the aforesaid case, candidates possession higher qualification of B.Ed than the minimum prescribed for the post claimed additional weightage for the higher qualification. Rejecting the contention, the Hon'ble Supreme Court observed as under:

"13.(i) In the case of the Junior Basic Training and Primary teachers Training Cetificate the emphasis is on the development of child. The Primary Education is upto IV standard. Thereafter there is middle education and the secondary and higher secondary education. But in the primary school one has to study the physiology and development of child at tender age. The person who is trained in B.Ed degree may not necessarily equipped to teach a student of primary class because he is not equipped to understand psychology of a child at that early stage...."

24. The above observations were made in the context of awarding extra weightage to the candidates possessing higher qualification. Another judgment relied upon by the Hon'ble Division Bench in the case of Jagjit Singh (supra) is Yogesh Kumar v. Government of NC.T., (2003) 3 SCC 548. In this case again the question whether B.Ed is a higher qualification than the T.T.C. Came to be examined. The Hon'ble Supreme Court made following observations:

"10. We find absolutely no force in the argument advanced by the respondents that B.Ed qualification is a higher qualification than TTC and therefore, the B.Ed candidates should be held to be eligible to compete for the post. On behalf of the applicants, it is pointed out before us that Trained Teacher's Certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed degree, the training imparted in to teach students of classes above primary. B.Ed degree holders, therefore cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for the post of primary teachers as only TTC and not B.Ed. Whether Bed qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider Bed candidates, for the present vacancies advertised as eligible."

25. Arguing on the same line Mr Khosla has strenuously argued that the persons possessing any qualification other than C.P.Ed are not eligible. With a view to appreciate the applicability of the aforesaid judgment, it is deemed appropriate to examine the rule position as prescribed under 1955 rules for the post of P.T.I. From the rule noticed in earlier part of this judgment, it appears that educational qualification like matric or 10+2 is not prescribed therein. Though in the advertisement, Senior Secondary Certificate or Intermediate or its equivalent basic qualification is an essential component for the post. Similarly, for professional qualifications, certificate in Physical Education C.P.Ed of a duration of not less than two years or its equivalent is prescribed. However, by virtue of the Corrigendum dated 24.10.2006, even a candidate with one year duration course of C.P.Ed is made eligible for recruitment in question. Similarly, in the rule, no equivalent qualification of C.P.Ed is referred to, though in the advertisement C.P.Ed or its equivalent qualification is also recognized as professional qualification. It cannot be ignored that the qualification prescribed under the rule and the advertisement is always the minimum qualification. It is not for us to identify any course which can be termed as equivalent to C.P.Ed course. At the same time, the curriculum of B.P.Ed and other higher courses, if include almost all the components of curriculum of C.P.Ed should not be construed to be a totally different and distinct qualification. In the case of Multan (supra), a Division Bench of this Court has clearly observed that D.P.Ed, B.P.Edc and M.P.Ed are higher qualifications in the same line. From the curriculum of courses like C.P.Ed, B.P.Ed, D.P.Ed, it is found that almost all components of C.P.Ed course of one year or two years are taught in D.P.Ed course in almost all the Universities in the States of Punjab and Haryana. In sum and substance, the controversy revolves around the curriculum of two types of courses, one prescribed in the advertisement i.e. C.P.Ed and higher courses acquired by the petitioners. On facts, we are of the considered opinion that the curriculum of B.P.Ed, B.P.E, D.P.Ed includes the curriculum prescribed for C.P.Ed in major universities in the States of Punjab and Haryana. Higher qualifications being in the same subject and line cannot be ignored and candidates possessing higher qualification cannot be denied consideration for selection.

26. The distinction sought to be created to deny eligibility is arbitrary and illusory. It goes without saying that the higher qualification provides better knowledge, better sense and in sight and equip the person with better understanding of the issues and problems. It cannot be a "bane" but has to be a "boon". The Hon'ble Supreme Court in the case of Mohd. Riazul Usman Gani and others v. District & Sessions Judge, Nagpur, (2000) 2 SCC 606, had the occasion to consider whether the higher qualification than 8th Standard prescribed for the post of Peon renders a candidate ineligible. Examining the issue, it is observed as under:

"21. A criterion which has the effect of denying a candidate his right to be considered for the post on the principle that he is having a higher qualification than prescribed cannot be rational. We have not been able to appreciate as to why those candidates who possessed qualifications equivalent to SSC Examination could also not be considered. We are saying this on the facts of the case in hand and should not be understood as laying down as rule of universal application."

27. From the facts on record and dictum of above noticed judgments, it emerges that the candidate possessing higher qualification in the same line cannot be excluded from consideration for selection. It is a different matter that he/she may not be entitled to any additional weightage for higher qualification, but cannot be denied consideration at par with a candidate possessing minimum prescribed qualification. Denying consideration to a candidate having better and higher qualification in the same line and discipline would definitely result in breach of Articles 14 and 16 of the Constitution of India.

The reference is answered accordingly.

Let the writ petition be placed before the learned Single Judge for decision on merits."

The learned Senior Counsel for the petitioners next submitted that the petitioners had already appeared in the selection and if they were not eligible their candidature should have been rejected at the very outset itself. With reference to this submission reliance has been placed upon a decision of a learned Single Judge dated 9.10.2015 passed in Writ petition no.44281 of 2015 (Devendra Singh and others Vs State of U.P. and Another). In that case the selection was related to the post of Additional Private Secretary and the Court held that if some of the petitioners do not possess the CCC certificate from the DOEACC Society, the candidature of such candidates should be rejected at the very threshold of the recruitment process and the candidate who lacks the minimum qualification should not be allowed to participate at any stage of the examination. The Court however, acknowledged that the qualification possessed after the last date of submitting the application would not entitle the candidates to participate in the selection and therefore, the matter was disposed of with a direction to the Commission to verify such of the candidates who had obtained their CCC certificate after the last date of submission of the application and if their candidature is rejected on that ground, the Commission shall pay compensation to the candidates.

The Supreme Court in the case of Parvaiz Ahmad Parry Vs State of J & K and others reported in 2016 (1) ESC 54 (SC) held that the requisite qualification under the J & K Forest Service (Gazetted) Recruitment Rules, 1970 lays down the eligibility qualifications for the post of Range Officer Grade-I (Forest) which is B.Sc. Forestry or its equivalent from any University recognized by the Indian Council of Agricultural Research. The petitioner-candidate before the Supreme Court possessed the qualification of B.Sc. with Forestry as one of the major subjects and also Master's degree in Forestry but not B.Sc Forestry. The question was whether the higher qualification would render him eligible for the post of Range Officer Grade-I. The Supreme Court held that in fact acquiring higher qualification in the prescribed subject i.e. Forestry was sufficient to hold that the appellant had possessed the prescribed qualification. Paragraphs 22,23,24,25,26,27 and 28 of the said judgment read as under:-

"22. As would be clear from the undisputed facts mentioned above, the minimum qualification prescribed for applying to the post of J & K Forest Service Range Officers Grade-I was "B.Sc. (Forestry) or equivalent from any University recognized by ICAR". It is not disputed that the appellant was to his credit a qualification of B.Sc. with Forestry as one of the major subjects and Masters in Forestry, i.e. M.Sc.(Forestry), on the date when he applied for the post in question, which satisfied the eligibility criteria so far as the qualification was concerned.

23. We do not agree with the reasoning of the High Court that in order to be an eligible candidate, the appellant should have done B.Sc. in Forestry and since he had not done so, he was not considered as an eligible candidate. This reasoning, in our view, does not stand to any logic and is, therefore, not acceptable insofar as the facts of this case are concerned.

24. In our considered view, firstly, if there was any ambiguity or vagueness noticed in prescribing the qualification in the advertisement, then it should have been clarified by the authority concerned in the advertisement itself. Secondly, if it was not clarified, then benefit should have been given to the candidate rather than to the respondents. Thirdly, even assuming that there was no ambiguity or/and any vagueness yet we find that the appellant was admittedly having B.Sc. degree with Forestry as one of the major subjects in his graduation and further he was also having Masters degree in Forestry, i.e., M.Sc.(Forestry). In the light of these facts, we are of the view that the appellant was possessed of the prescribed qualification to apply for the post in question and his application could not have been rejected treating him to be an ineligible candidate for not possessing prescribed qualification.

25. In our view, if a candidate has done B.Sc. in Forestry as one of the major subjects and has also done Masters in the Forestry, i.e., M.Sc.(Forestry) then in the absence of any clarification on such issue, the candidate possessing such higher qualification has to be held to possess the required qualification to apply for the post. In fact, acquiring higher qualification in the prescribed subject i.e. Forestry was sufficient to hold that the appellant had possessed the prescribed qualification. It was coupled with the fact that Forestry was one of the appellant's major subjects in graduation, due to which he was able to do his Masters in Forestry.

26. Learned counsel for the respondents contended that if the appellant is held eligible on the basis of his qualification, the candidates alike him would be deprived of applying for the said post. The argument, in our view, has no merit.

27. In the first place, no such candidate or/and applied for the post and secondly, the argument being wholly hypothical in nature cannot be accepted.

28. In the light of foregoing discussion, we are not in agreement with the view taken by the High Court when it was held that the appellant did not possess the prescribed qualification. This finding, as held above, is unsustainable and thus cannot be upheld. The appeal thus succeeds and is accordingly allowed. Impugned order is set aside. As a consequence, the writ petition filed by the appellant succeeds and is accordingly allowed. Since the appellant has already cleared the written examination and had appeared in the interview and further one post was directed to be kept reserved for him by the orders of the High Court in the event, the appellant succeeds in this litigation, we consider it appropriate to direct the respondents to issue necessary appointment order in favour of the appellant for the said post after ensuring compliance of the procedural formalities within one month from the date of receipt of this judgment."

At this stage, certain facts relating to the petitioners must be noted. Among all the petitioners whose qualifications are already mentioned hereinabove, the petitioners no.11,15, and 24 do not possess any qualification relating to knowledge of computers and therefore, so far as these petitioners are concerned, in my opinion they neither have the requisite qualification of CCC certificate awarded by the DOEACC Society nor they have any higher qualification in the field of computers and therefore, the writ petition so far as these petitioners are concerned stands dismissed. So far as petitioner no. 17 is concerned though he is shown to have done his Diploma, the same is from a private Institution by the name of Media Institute of Information Technology. This is a registered Society under the Societies Registration Act as mentioned in the Certificate itself and is a purely private Institution not shown to be recognized either by the Central Government or the State Government. Therefore, such Diploma cannot be recognized to be a qualification higher than CCC Certificate of DOEACC Society. Therefore, the writ petition of petitioner no. 17 is also dismissed.

So far as the petitioners no. 4 and 6 are concerned, they are shown to have done their High School and Intermediate with Computer as a subject. In the case of selection for the post of Junior Assistant/Stenographer where the eligibility criteria of CCC Certificate from DOEACC Society is the requirement, the State Government in its Notification dated 26.5.2015 Annexure-4 to the writ petition, has held that a candidate having computer in his High School and Intermediate Certificate issued by the Board of Secondary Education would also be said to be a valid qualification and it further provides that the persons having done their Diploma and Degree in Computer Science would also be eligible on the basis of equivalence with CCC Certificate issued by the DOEACC Society. In my opinion the question here in the present writ petition is not with regard to fitness for the post of Gram Panchayat Adhikari but with regard to a qualification other than CCC Certificate from DOEACC Society being equivalent to the said Certificate. Once the State Government itself has held High School and Intermediate Certificate with Computer as a subject being equivalent to the CCC Certificate issued by the DOEACC Society and Diploma and Degree to be equivalent to CCC Certificate issued by the DOEACC Society for the post of Junior Assistant/Stenographer it cannot make an arbitrary distinction when it comes to the post of Gram Panchayat Adhikari. The respondents cannot adopt dual standards with regard to CCC certificate issued by the DOEACC Society when it comes to the post of Gram Panchayat Adhikari. Therefore, in my opinion for the post of Gram Panchayat Adhikari if a candidate does not have a CCC Certificate issued by the DOEACC Society but has Computer as a subject in High School or Intermediate or has a Diploma or a Degree as a higher qualification the same would have to be treated as equivalent to CCC Certificate issued by the DOEACC Society. Therefore, the petitioners no. 4 and 6 cannot be non suited only on the ground that they do not possess the Computer Concept Course (CCC) certificate issued by the DOEACC Society.

So far as the remaining petitioners no. 1,2,3,5,7,8,9,10,12,13,14,16,18,19,20,21,22,23, and 25 are concerned, it is noticed that they possess the requisite higher qualification of Diploma or Degree or even Post Graduate Diploma in computers or with computers as a subject from recognised institutions/Universities and therefore, merely because they have not done the basic CCC course from the DOEACC Society it cannot be held that they lack knowledge or essential knowledge of computer. Petitioners with such high qualifications in computers cannot be non suited only on the ground that they do not possess the Computer Concept Course (CCC) certificate issued by the DOEACC Society.

So far as the validity of paragraph 8 of the Advertisement No. 7(3)/2015 is concerned I do not find any illegality or infirmity in the same as it is always open for the Government to introduce an additional eligibility qualification not otherwise provided for in the statutory Rules so long as the additional eligibility criteria is not inconsistent with or in abrogation of the criteria laid down in the Rules and does not supplant the Rules.

In the totality of the facts and the law laid down, the writ petition no. 30313 of 2016 (Abha Tripathi and others Vs. State of U.P. and others) stands partly allowed.

So far as the writ petition no. 36165 of 2016 (Sidh Nath Yadav Vs. State of U.P. and others) is concerned, it is noticed that the petitioner therein has stated in paragraph 9 of the writ petition that he has completed CCC Course from Future Soft Technology, which is stated to be accredited to NIELIT (Government of India) but is a private Institute. It is also stated that he has done his graduation from Deen Dayal Upadhyay University. The fact, however, remains that he does not state that he has done his graduation in computer or that he had computer as subject. He also does not possess the CCC certificate awarded by the DOEACC Society. This was one of the questions which had come up before this Court in the case of Sanjay Kumar Srivastava Vs. State of U.P. and another Special Appeal No. 829 of 2015 relating to the recruitment of Additional Private Secretaries wherein the Rules provided for a CCC certificate conducted by the DOEACC Society. The case of the petitioners therein was that they possessed certificates awarded by private Institutions. This was not accepted by the Division Bench of this Court and the Court held that a candidate who has passed either the Certificate Course in Computing (CCC) conducted by the DOEACC Society or the Course conducted by the Board of High School and Intermediate or any Course equivalent thereto recognized by the Government is eligible.

In this view of the matter since the petitioner possesses a Certificate issued by a private Institution regarding CCC Certificate which has not been issued by the DOEACC Society, he cannot be said to be holding the qualification as per the advertisement no.7(3)/2015 for the post of Gram Panchayat Adhikari.

The writ petition no. 36165 of 2016 (Sidh Nath Yadav Vs. State of U.P. and others) lacks merit and is accordingly dismissed.

So far as writ petition no. 30314 of 2016 (Ajay Tiwari Vs. State of U.P. and others) is concerned, the petitioner claims that he possesses the CCC Certificate issued by the U.P. Development Systems Corporation Ltd, which is stated to be a Government of U.P. undertaking but the fact remains that the advertisement itself requires a CCC certificate awarded by the DOEACC Society. Besides there is nothing in the Rules or advertisement or Government Order stating that the CCC certificate issued by the U.P. Development Systems Corporation Ltd. is equivalent to the Certificate issued by the DOEACC Society.

This controversy is no longer res integra having been settled by a Division Bench of this Court in the case of Sanjay Kumar Srivastava (supra) wherein the CCC certificates other than that issued by the DOEACC Society has been declined to be accepted as a valid qualification.

In this view of the matter since the petitioner possesses a CCC Certificate though issued by a Government undertaking Institution but the same has not been issued by the DOEACC Society, he cannot be said to be holding the qualification as per the advertisement no.7(3)/2015 for the post of Gram Panchayat Adhikari.

The writ petition no.30314 of 2016 (Ajay Tiwari Vs. State of U.P. and others) lacks merit and is accordingly dismissed.

There shall be no order as to cost.

Order Date:- 16th Sept. 2016.

Kirti/o.k

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