Allahabad High Court
Khushaboo Kumari Gupta vs State Of U.P. Through Its Principal ... on 24 August, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 10.08.2022 Delivered on 24.08.2022 Court No. - 82 Case :- WRIT - A No. - 13847 of 2021 Petitioner :- Khushaboo Kumari Gupta Respondent :- State Of U.P. Through Its Principal Secretary Of Village Development Department And 2 Others Counsel for Petitioner :- In Person Counsel for Respondent :- C.S.C.,Siddharth Singhal Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Ms. Khushboo Kumari Gupta, petitioner, in person, and Sri Sudhanshu Srivastava, Additional Chief Standing Counsel for State-Respondents.
2. Petitioner participated in recruitment process for the post of Village Development Officer (VDO) in pursuance of Advertisement No. 03/Exam-2016. She qualified written examination as well as physical examination, however, she was not permitted to participate in interview in absence of CCC Certificate from DOAECC Society though she had a certificate from one, Shift Computer Centre, being registered from DOAECC.
3. Under above circumstances, petitioner approached this Court by means of Writ-A No. 14181 of 2018 with the prayer to allow her to participate in interview. Said writ petition was dismissed vide order dated 27.06.2018. Thereafter petitioner filed Special Appeal No. 1165 of 2018, where a Division Bench on 27.02.2019 has passed following order:
"This special appeal is directed against the order dated 27.6.2018 passed by the writ Court whereby the writ petition of the petitioner has been dismissed.
The petitioner appellant is a candidate for the post of Village Development Officer (VDO). She qualified the written examination as well as physical examination which was held in the year 2016 pursuant to the advertisement no. 3. However, she was not permitted to participate in the interview as she was not possessing CCC certificate from the DOAECC Society.
Learned Standing counsel as well as Sri K.S. Kushwaha appearing for the respondents accepts that the service Rules no where prescribe CCC certificate as a necessary qualification for the above post rather only Intermediate in Science or Agriculture of the Madhyamic Shiksha Parisad, U.P., or equivalent thereto.
The advertisement indicates that in addition to the above qualification the CCC certificate was also demanded but without disclosing its source or that it should be from DOAECC Society.
In view of the above, prima-facie we are of the view that the petitioner appellant has been incorrectly stopped from participating in the interview and the writ petition has incorrectly been dismissed relying upon certain other decisions which are not applicable to the facts and circumstances of the case.
In view of the aforesaid facts and circumstances of the case, we issue an ad-interim mandamus directing the respondents to hold the interview of the petitioner appellant within a period of one month from today or to show cause within the same time by filing affidavit of the Secretary (Personnel and Appointment), U.P., Lucknow as well as that of the Secretary, U.P. Sub-ordinate Service Selection Commission, Lucknow as to the number of posts if still available on which the petitioner can be accommodated and as to quantum of damages which the respondents would be willing to offer to the petitioner appellant for illegally stopping her from participating in the interview.
List on 27th March 2019 and the result of the interview be placed before the Court on the next occasion." (Emphasis added)
4. Thereafter petitioner was allowed to participate in interview and above referred special appeal was finally disposed of by following order dated 29.04.2019:
"1. Sri K.S.Kushwaha, learned counsel for respondent 2 produced mark-sheet of interview awarding marks to petitioner and also handed over a photocopy thereof to petitioner. He also informed the Court that within a week, on the basis of marks secured by petitioner in interview, her position in merit list shall be examined viz-a-viz last selected candidates and final result shall be communicated to petitioner within a week thereafter.
2. In view thereof, appeal stands disposed of." (Emphasis added)
5. State-Respondents filed a recall application to recall the above referred order dated 29.04.2019 which was dismissed with cost vide order dated 11.11.2019. The order is reproduced as under:
1. Heard Sri Sudhanshu Srivastava, Advocate, for applicant and petitioner-appellant appearing in person.
2. This is thoroughly misconceived and ill-advised application seeking recall of our judgment and order dated 29.04.2019.
3. In respect of selection of petitioner, which was conducted admittedly by respondent-2, writ petition was filed which was dismissed. Thereagainst intra-Court Appeal was filed by appellant and therein learned counsel appearing for respondent-2 made a statement and on that statement appeal was disposed of passing following order:
"1. Sri K.S.Kushwaha, learned counsel for respondent 2 produced mark-sheet of interview awarding marks to petitioner and also handed over a photocopy thereof to petitioner. He also informed the Court that within a week, on the basis of marks secured by petitioner in interview, her position in merit list shall be examined viz-a-viz last selected candidates and final result shall be communicated to petitioner within a week thereafter.
2. In view thereof, appeal stands disposed of."
4. The order clearly says that on the basis of mark-sheet of interview awarding marks to petitioner, Km. Khushboo Kumari Gupta, copy whereof was handed over to her in the Court itself, Commission shall re-examine merit list qua last selected candidate and communicate final result of petitioner within a week. Therefore the entire exercise virtually was to be conducted by respondent-2, whose counsel made statement and thereupon matter was decided.
5. Now this application has been filed on behalf of Commissioner, Rural Development, U.P. Lucknow, who was not a party since he was not conducting selection at all, on the ground that he was not party in the proceedings and whatever statement was made by Sri K.S. Kushwaha, counsel for respondent-2, would not bind him.
6. Sri Kushwaha made statement as to what was to be done by Commission and it had nothing to be done with applicant. Counsel for review-applicant could not show as to how he was a necessary and proper party in the aforesaid proceedings. Even if that be so, why nothing was said by learned Standing Counsel who was present on behalf of Government representing respondent-1.
7. We have not gone into the merits of the matter while deciding appeal since on the statement made by learned counsel appearing for respondent-2, who was the body making recruitment/selection in the matter, order was passed. Therefore this application is thoroughly misconceived.
8. Dismissed with cost of Rs. 2,000/- which shall be paid to petitioner within two weeks." (Emphasis added)
6. In the meantime, Secretary, Uttar Pradesh Subordinate Selection Commission (hereafter referred to as "Secretary, UPSSC") vide letter dated 19.07.2019 communicated Commissioner, Village Development Department, U.P. declaring petitioner a selected candidate and requested to issue appointment letter. It was reiterated by another letter dated 06.09.2019.
7. Commissioner, Village Development Department by letter dated 26.09.2019 communicated to Special Secretary, Village Development Department that petitioner does not possess the requisite qualification of CCC Certificate from NIELIT/ DOAECC.
8. Under above referred background, petitioner, in person, approached this Court by way of filing Contempt Application (Civil) No. 4144 of 2019 wherein a direction was passed on 18.11.2019 and relevant part is mentioned hereainafter:
"In the counter affidavit filed by the opposite party no. 2, Commissioner Rural Development, U.P. Lucknow, a stand has been taken that since the applicant does not have CCC from NIELIT, therefore, the appointment cannot be granted.
On specific query, learned Additional Advocate General admits that the select list has been given effect to and all candidates recommended by the Subordinate Selection Board having CCC from NIELIT have been granted appointment. He further admits that after the decision in Pramod Kumar (supra) the opposite party no. 2 is bound to issue the appointment letter to the remaining candidates including the applicant.
In view thereof, the opposite party no. 2, Commissioner Rural Development, U.P. Lucknow, is prima facie held guilty of contempt of Court for not complying the writ Court order. He may show cause, as to why, charge may not be framed against him under the Contempt of Courts Act, 1971." (Emphasis added)
9. The above referred order passed in Contempt Application was challenged by way of Special Appeal No. 1211 of 2019 which was interfered to some extent by order dated 06.01.2021 passed by Division Bench and relevant part is mentioned hereinafter:
"We are convinced with the argument raised by learned counsel for the appellant and unable to accept the objection raised by the non-appellant (present-in-person) to hold that appeal is not maintainable because other than aforesaid, no issue was raised, thus, order dated 18.11.2019 is set aside and with the aforesaid appeal is allowed.
It is however made clear that acceptance of appeal would not preclude or restrain the petitioner (non-appellant herein) to seek review of the original judgment or to file a fresh writ petition to seek appointment. The liberty aforesaid has been given so that the petitioner (non-appellant herein) may not remain remediless.
The order under challenge has been interfered only for the reason that when the Division Bench in the appeal did not direct for appointment of the appellant (non-appellant herein), then, direction aforesaid could not have been given in the contempt and not for any other reason." (Emphasis added)
10. During above proceedings the petitioner successfully passed CCC Certificate from NIELIT and accordingly certificate dated 28.03.2018 was issued, which is placed on record also.
11. In the above background petitioner has approached this Court by way of filing present writ petition on 22.09.2021 seeking following reliefs:
"(a) Issue a writ, order or direction in the nature of mandamus directing direct the respondents to appoint of the petitioner for the post of VDO in reference of letter dated 19.07.2019 & 06.09.2019 and please dispose the case only after the appointment of the applicant.
(b) Issue any other suitable writ, order or direction as this Hon'ble Court, may deem just and proper under the circumstances of the present case.
(c) To award the cost of the writ petition in favour of the petitioner."
12. In between a development took place that Commissioner, Village Development Department by an office order dated 02.12.2020 rejected representation of petitioner on the ground that she did not possess requisite CCC Certificate before the date of advertisement and subsequent certificate could not be accepted. The said order was not communicated to petitioner and for the first time it was placed alongwith counter affidavit filed by State-Respondents and petitioner by way of an amendment application has challenged the same also and for that the Court has granted permission.
13. Petitioner, in person, has pleaded her case vehemently on facts as well as on merit. She submitted that since Secretary, UPSSC vide letters dated 19.07.2019 and 06.09.2019 has declared petitioner to be a selected candidate and requested the Department to issue appointment letter, the State-Respondents have no other option but to issue appointment letter in favour of petitioner. They could not object or ignore the said letters on frivolous ground that petitioner was not qualified in absence of a CCC Certificate issued by NIELIT. The State-Respondents have not approached this Court to quash the letters issued by Secretary, UPSSC and due to an illegal stand taken by them she has to approach this Court by way of second round of litigation. Petitioner, in person, vehemently relied on a categorical statement made on behalf of State during hearing of Special Appeal No. 1165 of 2018, which is mentioned in its order dated 27.02.2019 that, "service Rules no where prescribe CCC Certificate as a necessary qualification for the above post rather only Intermediate in Science or Agriculture of the Madhyamic Shiksha Parishad, U.P., or equivalent thereto." The State-Respondents cannot sit over the specific statement made before Division Bench and it is nothing but unnecessary harassment of petitioner-in person.
14. Sri Sudhanshu Srivastava, learned Additional Chief Standing Counsel appearing for State-Respondents, has opposed the above submissions tooth and nail. He submitted that it was specifically mentioned in the advertisement that a candidate for the post of Village Development Officer shall possess before the date of advertisement two essential qualifications, i.e., (I) Intermediate in Science or Agriculture of Madhyamik Shiksha Parishad U.P. or equivalent thereto; and, (ii) CCC Certificate. He also drew attention of this Court on prescribed proforma of the form to show that therein it was specifically mentioned that CCC Certificate has to be issued from DOAECC Society or equivalent thereto. Petitioner had participated in the recruitment process and there was no challenge to essential qualifications prescribed in the advertisement, therefore, CCC Certificate possessed by petitioner which was not issued by DOAECC Society, was rightly rejected by State-Respondents.
15. Learned Additional Chief Standing Counsel has placed reliance on The Maharashtra Public Service Commission through its Secretary vs. Sandeep Shriram Warade and others, (2019)6 SCC 362, para 10, which is reproduced as under:
"10. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive rewriting of the advertisement. Questions of equivalence will also fall outside the domain of judicial review....."
16. Further reliance was placed on this Court's judgment in Deepak Singh and others vs. State of U.P. and others (Writ-A No. 24273 of 2018) decided on 23.07.2019, wherein Larger Bench has held as under:
"In view of the facts in the case, it is clear that there was no clarification/notification by the State Government providing for equivalence of any other qualification as equal to 'O' level Diploma in Computer Application. There being no material on record either before the learned Single Judge or before us to show that qualification possessed by the petitioners was in the same line of progression and also there being no material on record to show that the entire syllabus as is prescribed for grant of 'O' level Diploma in Computer Application was also the syllabus studied by the students for grant of Post Graduate Diploma in Computer Application (hereinafter referred to 'PGDCA'). In view of the said facts, we record that the degree PGDCA does not pre-suppose the qualification of 'O' level Computer Operation as is awarded by NIELIT.
Coupled with the said fact, we have already held that it is the State Government which has the powers to prescribe the requisite qualification required for the efficient discharge of duties for the post for which the advertisement is issued and that being outside domain of judicial review as held by the Hon'ble Supreme Court in the case of Zahoor Ahmad (supra) and Maharashtra Public Service Commission vs. Sandeep Shriram Warade and others (supra). We hold that the persons having PGDCA cannot be presumed to be having the qualification of 'O' level Diploma in Computer Application."
17. The next judgment relied was Mukul Kumar Tyagi vs. The State of U.P. and others, (2020)4 SCC 86, that, "51. We, thus, are of the considered opinion that CCC certificate as mentioned in the advertisement dated 14.09.2014 was CCC certificate as granted by NIELIT/DOEACC."
18. Sri Siddharth Singhal, Advocate appearing on behalf of Respondent-UPSSC, has supported the letters written by Secretary, UPSSC and submitted that petitioner was found selected on merit and said letters were communicated in furtherance of the orders passed by this Court.
19. I have heard Ms. Khushboo Kumari Gupta-petitioner-in person, and learned counsel for respondents and perused the material available on record.
20. The service rules for the post of Village Development Officer are governed by Uttar Pradesh Gram Panchayat Vikar Adhikari Niyamwali, 1999 wherein as per Rule 3 the minimum qualification required for the post is Intermediate or any other equivalent examination recognized by State Government and CCC Certificate is not an essential qualification prescribed in said Rules.
21. Learned counsel for State-Respondents has rightly made a statement before Division Bench in Special Appeal No. 1165 of 2018 that CCC Certificate is not an essential qualification prescribed in Rules and it was mentioned only in the advertisement. However, the advertisement is not under challenge. It is also not in dispute that otherwise the petitioner has found place in merit list and she has been declared selected by UPSSC and accordingly letters dated 19.07.2019 and 06.09.2019 are communicated to State. The Division Bench after taking note of the categorical statement made on behalf of State that CCC Certificate is not an essential qualification, has passed an ad interim mandamus directing respondents to hold interview of appellant (petitioner herein) by order dated 27.02.2019 and in pursuance of said interim mandamus, interview of petitioner was conducted and thereafter result was also communicated. The said order was not under challenge, therefore, has attained finality. An attempt to recall the said order was rejected with cost vide ordar dated 11.11.2019.
22. Petitioner, in person, has also approached the Contempt Court wherein Commissioner, Rural Development, U.P., Lucknow has prima facie held guilty of contempt of Court vide order dated 18.11.2019. The said order was challenged before Division Bench wherein it was interfered to the extent that, as the Division Bench (order under contempt) did not direct for appointment of petitioner, therefore, such direction could not have been given in contempt proceedings. It is to note here that in contempt proceedings the learned Additional Advocate General has admitted that State-Respondents are bound to issue appointment letter to petitioner also.
23. On the basis of rival submission and material on record, it would be appropriate to conclude that:
(I) It is a categorical stand of State-Respondents that CCC Certificate was not an essential qualification prescribed in service rules, which is not in dispute.
(II) The direction of Division Bench in special appeal filed by petitioner to allow the petitioner to participate in interview has attained finality as it was not challenged by State-Respondents.
(III) In pursuance of order passed by Division Bench, interview of petitioner was conducted and according to document issued by Secretary, UPSSC she found place in merit list.
(IV) It is a specific stand of UPSSC, corroborated from letters dated 19.07.2019 and 06.09.2019 that since the petitioner got place in merit list, therefore, she is entitled for appointment and absence of CCC Certificate from NIELIT could not be a ground not to comply request of UPSSC.
(V) The contrary stand taken by Stare-Respondents by way of subsequent letters and also by letter dated 02.12.2020 whereby the representation of petitioner was rejected, was only on the ground that petitioner does not possess requisite CCC Certificate before the last date of advertisement. It appears to be contrary to their stand taken before this Court.
(VI) State-Respondents have not approached this Court for any clarification or to challenge the communications of Secretary, UPSSC with regard to appointment of petitioner.
24. Learned Additional Chief Standing Counsel has placed above referred judgments in order to support the stand that CCC Certificate has to be issued by DOAECC Society or NIELIT and none other institute was recognized to issue such certificate.
25. The judgments cited by learned Additional Chief Standing Counsel have categorically supported the stand of State-Respondents. Admittedly, petitioner does not possess CCC Certificate as required to be issued by DOAECC Society or NIELIT, however, the factual position is different in the present case. The Division Bench in Special Appeal No. 1165 of 2018 has proceeded on basis of a categorical statement made by counsel for State at Bar that CCC Certificate was not an essential qualification under the service rules, therefore, the argument that CCC Certificate has to be issued by NIELIT or DOAECC has no consequence in the facts and circumstances of present case. Any attempt on behalf of State-Respondents now to have a contradictory approach has to be rejected since they have not taken any step to get modification in the categorical statement made in special appeal.
26. It is also very strange that a recruitment body has declared the result that petitioner is qualified and got place in merit list and requested for her appointment but that has not been followed or accepted by State-Respondents on the ground of non possession of requisite CCC Certificate which is not only contrary to their stand before this Court in the earlier round of litigation as well as there is no provision which supports the stand of State-Respondents to sit over the recommendation made by UPSSC.
27. The outcome of above discussion is only that since State-Respondents have made a categorical statement in earlier round of litigation before Division Bench that CCC Certificate is not an essential qualification, which is clear from relevant rules also, and nothing has been placed on record contrary to that stand and, that, the said order has attained finality and in pursuance thereof petitioner was allowed to participate in interview and thereafter her result was declared, wherein she found place in merit list and in pursuance thereof Secretary, UPSSC has communicated State-Respondents to appoint petitioner, therefore, at this stage, any contrary stand of State-Respondents is illegal and liable to be rejected.
28. In the result, the writ petition is allowed. Order dated 02.12.2020 is hereby set aside. A mandamus is issued to State-Respondents to issue appointment letter in favour of petitioner for the post of Gram Vikas Adhikari within a period of two weeks from the date a certified copy of this order is placed before concerned respondent authority.
29. Due to apathy of State-Respondents, the petitioner has been forced to approach this Court again by way of filing present writ petition. Therefore, a further direction is issued to pay a cost of Rs. 10,000/- to petitioner within two weeks by State-Respondents.
Order Date :-24.08.2022 AK