Punjab-Haryana High Court
Rishi Pal And Others vs Haryana State Cooperative Supply & on 30 November, 2012
Author: Rakesh Kumar Jain
Bench: A.K.Sikri, Rakesh Kumar Jain
LPA No.1458 of 2012 (O&M) [1]
LPA No.1685 of 2012 (O&M)
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) LPA No.1458 of 2012 (O&M)
Date of decision:30.11.2012
Rishi Pal and others ...Appellants
Versus
Haryana State Cooperative Supply &
Marketing Federation Limited and another ...Respondents
(2) LPA No.1685 of 2012 (O&M)
Date of decision:30.11.2012
Manish and others ...Appellants
Versus
The Haryana State Cooperative Supply and
Marketing Federation Limited and another ...Respondents
CORAM: Hon'ble Mr. Justice A.K.Sikri, Chief Justice
Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. R.K.Malik, Senior Advocate, with
Ms. Renu, Advocate, for the appellants in LPA-1458-2012.
Mr. Ashish Aggarwal, Senior Advocate, with
Mr. Kulwant Singh, Advocate, for the appellants
in LPA No.1685 of 2012.
Mr. B.S.Rana, Addl. A.G., Haryana.
Mr. Christopher D'souza, Advocate, for
Mr. G.S.Hooda, Advocate, for respondent No.1.
*****
RAKESH KUMAR JAIN, J.
This order shall dispose of two Letters Patent Appeals bearing LPA Nos.1458 and 1685 of 2012, both preferred by the appellants against the similar LPA No.1458 of 2012 (O&M) [2] LPA No.1685 of 2012 (O&M) ***** orders passed by the learned Single Judge.
The brief facts of the case are that the Haryana State Cooperative Supply & Marketing Federation Limited (hereinafter referred to as the "HAFED") sent requisition of 46 posts of Field Inspectors (Store) to the Haryana Staff Selection Commission (hereinafter referred to as the "Commission") on 15.10.2008. The Commission advertised the said posts vide advertisement No.3/2009 dated 28.02.2009. The essential qualification for the advertised posts were i) Graduate from recognized University; ii) Minimum one year diploma in computer from the recognized University/Institution; and iii) Hindi/Sanskrit upto Matric Standard. The appellants were found eligible by the Commission and it recommended 44 candidates in the selection list with 12 candidates in the waiting list to the HAFED for appointment but 14 such candidates, including the appellants, were not offered appointment on the ground that they do not fulfill the second part of the minimum qualification i.e. one year diploma in computer from the recognized University/Institution and hence, the candidates lower in merit than the appellants were offered appointments.
Aggrieved against arbitrary action of the HAFED, the appellants in LPA No.1458 of 2012 filed CWP No.16307 of 2012 in which it was alleged that appellant No.1 in the said appeal has passed Bachelor of Science in Information Technology (B.Sc. IT) in the year 2007 and also obtained Diploma in Computer Application in the year 2000. Appellant No.2 has passed Bachelor of Computer Application in the year 2007 and also possess diploma in Computer Education. Appellant No.3 has passed Bachelor of Computer LPA No.1458 of 2012 (O&M) [3] LPA No.1685 of 2012 (O&M) ***** Application in the year 2008 and also obtained diploma in Information & System Management. The main plank of the argument of the petitioners in the writ petition before the learned Single Judge was that they possess higher qualification in all respect in the same line and have been found eligible by the Commission and after having been selected, they could not have been denied the appointment by the HAFED, but the writ petition was dismissed by the learned Single Judge vide order dated 24.08.2012.
In LPA No.1685 of 2012 in CWP No.15025 of 2012, appellant No.1 has passed Bachelor of Computer Application in the year 2006 and has obtained the degree of Masters in Computer Application. Appellant No.2 has passed the Bachelor of Computer Application in the year 2005 and also obtained post graduate diploma in Computer Applications in the year 2009. Appellant No.3 passed the Bachelor of Computer Application in the year 2006 and also obtained degree of Master of Computer Application in the year 2011. Appellant No.4 has passed the Bachelor of Computer Application in the year 2006 and appellant No.5 has passed the Bachelor of Science (IT) in the year 2007 and also obtained the degree of Master of Computer Science in the year 2011. Their arguments were also similar to the arguments raised in CWP No.16307 of 2012 but their writ petition was also dismissed by the learned Single Judge vide his order dated 25.09.2012.
Learned counsel for the appellants in LPA No.1458 of 2012 has submitted that they have sought information under the Right to Information Act, 2005 from Indira Gandhi National Open University (IGNOU), New Delhi as to whether Bachelor in Computer Application (BCA) is a higher LPA No.1458 of 2012 (O&M) [4] LPA No.1685 of 2012 (O&M) ***** qualification in comparison to one year diploma in Computer (Basic Computer Course) in all respect in the same line, to which the answer has been given in affirmative. Similarly, information has been sought from the Punjab Technical University, Jalandhar as to whether B.Sc. IT (L.E.) is equivalent qualification as compared to B.C.A. in their University and B.Sc IT (L.E.) is an equivalent or higher qualification in comparison to one year diploma in Computer in all respect in the same line. Again the answer to the said two questions is in affirmative.
A similar argument has been raised by the appellants in LPA No.1685 of 2012 that even vide letter dated 25.12.2011, the Commission had informed to the HAFED that 14 candidates who have not been given appointment, including the appellants in both the appeals, possess higher qualification in the same line and are eligible for appointment. He has also drawn the attention of the Court to an advertisement No.1/2012 by the HAFED for the post of Network Supervisor in which qualification of B.C.A. has been considered to be equal to the qualification of B.S.c. Computer Science and Graduation with one year diploma in Computers.
It is argued on behalf of the appellants that since they possess higher qualification in all respect in the same line, therefore, they are eligible to be appointed against the post for which their names have been recommended by the Commission. In this regard, reliance has been placed by the appellants on a judgment of the Supreme Court in the case of Jyoti K.K. and others v. Kerala Pubic Service Commission, JT 2002 Suppl 1 SC 85 and a Full Bench judgment of this Court in the case of Manjit Singh v. State of Punjab and LPA No.1458 of 2012 (O&M) [5] LPA No.1685 of 2012 (O&M) ***** others, CWP No.451 of 2008 decided on 05.02.2010.
In reply, counsel for the HAFED has submitted that the appointments to the appellants have rightly been declined because on scrutiny, it has been found that they do not fulfill the second part of the minimum qualification. He has also submitted that earlier in the year 2007, the Commission had recommended names to HAFED against 44 posts of Field Inspectors (Store). At that time, some of the candidates did not possess the second part of the minimum qualification, out of which one candidate, namely, Karam Singh, whose name was recommended by the Commission but not offered appointment by the HAFED as he did not fulfill the minimum qualifications of one year diploma in Computer Education, filed CWP No.16593 of 2009 but the said writ petition was dismissed by the learned Single Judge of this Court on 06.1.2009. Thereafter, LPA No.410 of 2010 filed by the said Karam Singh was dismissed on 02.07.2010 and even SLP(C) No.640 of 2011 was also dismissed by the Supreme Court.
We have heard counsel for the parties and perused the record from which we have found that it is not in dispute that the appellants in both the appeals possess higher qualification in all respects in the same line which is admitted by the Commission in its letter dated 25.12.2011 (attached as Annexure P-15 in CWP No.15025 of 2012 in LPA No.1685 of 2012). The question is, thus, as to whether a candidate possessing higher qualification than the one prescribed and advertised for appointment to the posts is eligible for such selection/appointment? Similar question was before the Full Bench of this Court in Manjit Singh's case (supra) on account of a conflict between two LPA No.1458 of 2012 (O&M) [6] LPA No.1685 of 2012 (O&M) ***** Division Bench judgments and it was decided by the Full Bench in the following manner:
"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."
Similarly, in Jyoti K.K. and others' case (supra), the Supreme Court has observed as under:
"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. Under the relevant rules, for the post of assistant engineer, degree in electrical engineering of Kerala University or other equivalent qualification LPA No.1458 of 2012 (O&M) [7] LPA No.1685 of 2012 (O&M) ***** recognized or equivalent thereto has been prescribed. For a higher post when a direct recruitment has to be held, the qualification that has to be obtained, obviously gives an indication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of sub-engineer. In that view of the matter the qualification of degree in electrical engineering presupposes the acquisition of the lower qualification of diploma in that subject prescribed for the post, shall be considered to the sufficient for that post. In the event the government is of the view that only diploma holders should have applied to the 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 high er 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."
On the other hand, the judgment relied upon by counsel for the HAFED in Karam Singh's case (supra) is not applicable in the present case LPA No.1458 of 2012 (O&M) [8] LPA No.1685 of 2012 (O&M) ***** because the issue involved in that case was as to whether certificate of Computer Science issued by the Tata Infotech Limited is equivalent to the one year diploma in computer. In that case, it was held as under:
"Merely because the Tata Infotech Limited has entered into an agreement (Annexure P-2) with the Government of Haryana, for imparting computer education as an optional subject in the Government Educational Institutions (Schools, Colleges, Industrial Training Institutions and Vocational Education Institutions) for short duration of computer courses, will not make the certificates (Annexure P-3 and P-4), issued by the Tata Infotech Limited, during that training, as a valid one year Diploma in computer.
These certificates have been issued for participation in computer training for a duration of 90 and 120 hours. The students, who are studying in Government Education Institutions attended those courses as an optional subject and they were given the certificates for that. Those certificates are not equivalent to one year Diploma in computer, which itself is a separate course. During the course of arguments, learned counsel for the petitioner could not show any material/order that those certificates have been recognized by the Government as equivalent to one year Diploma course in computer. In absence of any such recognition by the Government, it cannot be held that those certificates issued by Tata Infotech Limited with counter signatures of the Principal of the College, can be considered as equivalent to one year Diploma in Computer. Similar is the position with regard to the certificate (Annexure P-5) issued by the Webs Computer Education. Therefore, in my opinion, the petitioner has been rightly held to be not entitled for appointment on the post of Field Inspector (Stores) in Hafed, as he is not possessing the LPA No.1458 of 2012 (O&M) [9] LPA No.1685 of 2012 (O&M) ***** essential minimum qualification i.e. one year Diploma in computer."
Since the controversy involved in the present case is not covered by the decision in Karam Singh's case (supra), which undoubtedly has been upheld upto the Supreme Court, and is fully covered by the decision of the Full Bench of this Court in Manjit Singh's case (supra) on the premise that the candidates possessing higher qualification in the same line cannot be excluded, the view taken by the learned Single Judge in both the appeals is not correct and deserves to be set aside.
In view of the aforesaid discussion, both the appeals are hereby allowed and the impugned orders are set aside. Consequently, the respondent- HAFED is directed to offer appointments to the appellants in both the appeals from the date their juniors have been offered appointment. It has been fairly conceded by the counsel for the appellants in both the appeals that the monetary benefits of that period may not be granted to the appellants.
(A.K.Sikri) (Rakesh Kumar Jain)
Chief Justice Judge
30.11.2012
vinod*