Allahabad High Court
Vikas And 80 Others vs State Of U.P. And 2 Others on 17 September, 2021
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on: 03 September 2021 Delivered on: 17 September 2021 Court No. - 34 1. Case :- WRIT - A No. - 656 of 2020 Petitioner :- Vikas And 80 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Tarun Agrawal,Prashant Mishra,Tarun Agrawal Counsel for Respondent :- F.A. Ansari, G.K. Singh,Ashish Kumar Singh,Avneesh Tripathi,C.S.C,Greesh Kumar Malviya,Hritudhwaj Pratap Sahi,M.N. Singh,Shailendra Srivastava With 2. Case :- WRIT - A No. - 693 of 2020 Petitioner :- Kavita Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Yogendra Singh Bohra Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 3. Case :- WRIT - A No. - 758 of 2020 Petitioner :- Surenda Kumar Singh And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shri Ram Pandey,Kaushal Kumar Ojha Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 4. Case :- WRIT - A No. - 771 of 2020 Petitioner :- Swati Sharma Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sharad Chand Rai,Shri Krishna Mishra Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh,Manu Saxena With 5. Case :- WRIT - A No. - 801 of 2020 Petitioner :- Jitendra Kumar Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rajjan Singh Yadav,Ranjeet Yadav,Satyawan Yadav Counsel for Respondent :- C.S.C.,Avneesh Tripathi,Fuzail Ahmad Ansari,M.N. Singh With 6. Case :- WRIT - A No. - 823 of 2020 Petitioner :- Mohammad Imran Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ziya Uddin Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 7. Case :- WRIT - A No. - 836 of 2020 Petitioner :- Sachchida Nand Verma Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Chandra Prakash,Syed Mohammad Abbas Abdy Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh,Rohit Pandey With 8. Case :- WRIT - A No. - 917 of 2020 Petitioner :- Sandeep Kuamr Tripathi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sanjay Kumar Dubey Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh,A/A1626 With 9. Case :- WRIT - A No. - 925 of 2020 Petitioner :- Satya Prakash Singh And 63 Others Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Tarun Agrawal,Prashant Mishra Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 10. Case :- WRIT - A No. - 937 of 2020 Petitioner :- Arvind Kumar Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Seemant Singh,Santosh Kumar Upadhyay Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh,Avneesh With 11. Case :- WRIT - A No. - 942 of 2020 Petitioner :- Shailesh Mishra And 12 Others Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Saurabh Kumar Tiwari,Atul Kumar Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 12. Case :- WRIT - A No. - 943 of 2020 Petitioner :- Kamlesh Kumar Beldar Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Jitendra Rana,Dharmendra Kumar Srivastava,Gautam,Manoj Kumar Singh,Mohd. Shamim Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 13. Case :- WRIT - A No. - 944 of 2020 Petitioner :- Saurabh Mishra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Parvesh Kumar Pandey,Sarvesh Kumar Pandey Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh,Avneesh Tripathi With 14. Case :- WRIT - A No. - 945 of 2020 Petitioner :- Jai Shankar Chaubey And 60 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kaushal Kumar Ojha,Piyush Pandey,Radha Kant Ojha (Senior Adv) Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 15. Case :- WRIT - A No. - 969 of 2020 Petitioner :- Dilip Kumar Maurya Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ashok Kumar Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 16. Case :- WRIT - A No. - 1006 of 2020 Petitioner :- Rajnish Chandra Dwivedi Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Prabha Shanker Pandey Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 17. Case :- WRIT - A No. - 1029 of 2020 Petitioner :- Girish Kumar Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 18. Case :- WRIT - A No. - 1271 of 2020 Petitioner :- Sameeksha Pandey And 4 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shri Krishna Mishra,Sharad Chand Rai Counsel for Respondent :- C.S.C.,Avneesh Tripathi,Fuzail Ahmad Ansari,M.N. Singh With 19. Case :- WRIT - A No. - 1357 of 2020 Petitioner :- Vikash Yadav And 12 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Abhishek Goswami,Shiv Pujan Bharti Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 20. Case :- WRIT - A No. - 1523 of 2020 Petitioner :- Ramesh Chandra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Babu Lal Ram Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 21. Case :- WRIT - A No. - 1548 of 2020 Petitioner :- Sonam Mishra And 73 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Saurabh Kumar Tiwari,Atul Kumar Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 22. Case :- WRIT - A No. - 1550 of 2020 Petitioner :- Pushpendra Singh And 12 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shashank Kumar Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 23. Case :- WRIT - A No. - 1568 of 2020 Petitioner :- Aditya Pratap Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kuldeep Singh Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 24. Case :- WRIT - A No. - 1598 of 2020 Petitioner :- Ankur Kumar Singh And 21 Others Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Tarun Agrawal,Prashant Mishra Counsel for Respondent :- C.S.C.,A.S.G.I.,Avneesh Tripathi,Kuldeep Singh Chauhan,M.N. Singh With 25. Case :- WRIT - A No. - 1604 of 2020 Petitioner :- Nand Kishor Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Lavlesh Kumar Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 26. Case :- WRIT - A No. - 1658 of 2020 Petitioner :- Praveen Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ramesh Chandra Upadhyay Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 27. Case :- WRIT - A No. - 1776 of 2020 Petitioner :- Abhijit Dwivedi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pusp Raj Singh Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 28. Case :- WRIT - A No. - 2310 of 2020 Petitioner :- Pooja Devi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Anubhav Dwivedi,Satyendra Nath Tripathi Counsel for Respondent :- C.S.C.,Avanish Tripathi,M.N. Singh With 29. Case :- WRIT - A No. - 2666 of 2020 Petitioner :- Ameer Javed Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Brijesh Narayan Srivastava Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 30. Case :- WRIT - A No. - 2670 of 2020 Petitioner :- Amit Kumar Verma And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Brijesh Narayan Srivastava,M.N. Singh Counsel for Respondent :- C.S.C.,Avneesh Tripathi With 31. Case :- WRIT - A No. - 2690 of 2020 Petitioner :- Dharmendra Pratap Singh And 5 Others Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Ram Bachan Yadav Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 32. Case :- WRIT - A No. - 3999 of 2020 Petitioner :- Alok Ranjan Mishra And 4 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ankesh Kumar Dubey,Ravindra Kumar Tripathi Counsel for Respondent :- C.S.C.,Avanish Tripathi,M.N. Singh With 33. Case :- WRIT - A No. - 4028 of 2020 Petitioner :- Mohammad Tanvir Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ram Chandra Srivastava,Manoj Kumar Singh Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 34. Case :- WRIT - A No. - 4159 of 2020 Petitioner :- Shalini Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- R.P.S. Chauhan Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 35. Case :- WRIT - A No. - 4542 of 2020 Petitioner :- Ratnakar Mishra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Neeraj Shukla Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 36. Case :- WRIT - A No. - 4840 of 2020 Petitioner :- Prince Jaiswal And 2 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pankaj Kumar Gupta,Mannu Ram Counsel for Respondent :- C.S.C.,A.S.G.I.,Avneesh Tripathi,M.N. Singh With 37. Case :- WRIT - A No. - 9558 of 2020 Petitioner :- Madan Lal Mali Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Santosh Kumar Tiwari Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh With 38. Case :- WRIT - A No. - 3353 of 2021 Petitioner :- Nripendra Bhaskar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Jayanti Vikram Singh,Satyendra Bhaskar Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh Hon'ble Yashwant Varma,J.
Heard Sri Shashi Nandan, learned Senior Counsel assisted by Sri Tarun Agarwal, and Prashant Mishra, learned counsels in Writ -A No. - 656 of 2020 [Vikas And 80 Others Vs. State Of U.P. And 2 Others], Sri R.K. Ojha, learned Senior Counsel in Writ - A No. -945 of 2020 [Jai Shankar Chaubey And 60 Others Vs. State Of U.P. And 2 Others], Sri Y.S. Bohra, learned counsel who appears in Writ - A No. - 693 of 2020 [Kavita Singh Vs. State of U.P. And 2 Others]. All other learned counsels appearing for the petitioners have adopted the submissions advanced by learned Senior Counsels noticed above. Sri Neeraj Tripathi, the learned Additional Advocate General assisted by Sri Shashank Shekhar Singh, learned Additional Chief Standing Counsel has addressed submissions for the State-respondents, Sri G.K. Singh, learned Senior Counsel assisted by Sri Avneesh Tripathi has been heard on behalf of the Commission while Sri M.D. Singh, 'Shekhar' and Sri V.K. Singh, learned Senior Counsels assisted by Sri G.K. Malviya, have appeared for the impleaded parties.
A. INTRODUCTION This batch of writ petitions challenge a selection process undertaken by the U.P. Public Service Commission1 for appointment of Assistant Review Officers and Review Officers in different departments of the State Government. Admittedly, all the writ petitioners had successfully cleared the written examination. They were, however, not permitted to participate in the typing test leading to the filing of the present writ petitions. The writ petitioners approached this Court stating that the respondents had not permitted them to participate further in the selection process on the ground that they did not possess the ''O' Level certificate as prescribed by NIELIT. The writ petitioners appearing in the lead matter being Writ A No. 656 of 2020 have classified the various petitioners as falling in the following groups: -
Group Petitioners Academic Qualification Group 1 Petitioner Nos. 1 to 14 B. Tech. (IT) Group 2 Petitioner Nos. 15 to 44 B. Tech. (CS) Group 3 Petitioner Nos. 45 to 48 B.Sc. (CS) Group 4 Petitioner Nos. 49 to 52 B.Sc. (CA) Group 5 Petitioner Nos. 53 M.Sc. (CS) Group 6 Petitioner Nos. 54-63 BCA Group 7 Petitioner Nos. 64 to 71 MCA Group 8 Petitioner Nos. 72 to 77 B.A./M.A. + "O" Level Course from Kanpur University Group 9 Petitioner No. 78 Electronics & Communication Engg.
Group 10 Petitioner No. 79 Diploma in Computer Application from NIELIT Group 11 Petitioner No. 80 Diploma in Computer Science Group 12 Petitioner No. 81 PGDCA Undisputedly, the rules which govern the appointment of Review Officers and Assistant Review Officers prescribed the following qualifications: -
(A) Bachelor's degree from a University established by law in India or a qualification recognized by the Government as equivalent thereto;
(B) "O" Level certificate awarded by the DOEACC Society or a qualification equivalent thereto;
(C) Must possess a minimum typing speed of 25 words per minute in Hindi typing;
All the writ petitioners contend that they hold degrees and diplomas which are either equivalent to an ''O' Level certificate or are liable to be viewed as a higher or superior qualification to that of an ''O' Level certificate. It was also their contention that in the previous recruitment exercises which had been undertaken, candidates holding qualifications identical to that of the petitioners, had been permitted to participate in the selection process and had also been appointed subsequently. In view of the aforesaid, it was contended that the exclusion of the petitioners was clearly arbitrary and illegal. When the leading writ petition came up for consideration before a learned Judge on 17 January 2020, rival submissions were noted and upon consideration thereof and as an interim measure it was provided that in case the petitioners here ultimately succeed, the Commission would hold a special typing rest for them and appointments if any made would be subject to the result of the writ petition. On 29 July 2020, the Court took note of a supplementary affidavit filed in connected petition being Writ-A No.945 of 2020 and the reliance placed on behalf of the petitioners on a Government Order of 09 June 2020. The State respondents as well as the Commission were directed to file their counter affidavits. Pursuant to those directions, affidavits have since been exchanged between parties. The Commission along with its counter affidavit of 17 February 2020 placed on the record a decision taken by a 3 member Expert Committee dealing with the question of equivalence of degrees and diplomas submitted by candidates to the ''O' Level certificate as issued by NIELIT. Taking note of the course content of the ''O' Level certificate, the Committee held that certificates of higher levels would not be considered. It further decided that certificates issued by Institutes, Centers and Schools accredited by NIELIT for running courses other than the ''O' Level would also not be considered. The Committee further resolved that higher degrees/diplomas certificates in IT/Computer Science submitted in lieu of the ''O' Level Certificate would also not be considered. It also excluded from consideration any certificate issued by a private school, training center, institution or a body. It lastly decided that a Post Graduate Diploma in Computer Application (PGDCA) as well as a Diploma in Computer Application (DCA) awarded by universities or other organizations would also not be considered as equivalent to the ''O' Level certificate.
Upon that disclosure being made, the petitioners amended the writ petitions laying challenge to the decision of the Expert Committee. Those amendments as proposed were allowed by the Court on 17 November 2020. On 16 July 2021, the Court was apprised by the learned Additional Advocate General that during the pendency of the writ petitions various appointments had come to be made and such appointees had not been impleaded as party to these proceedings. The Court, in view of the aforesaid, directed the State respondents to serve notices upon all selected candidates informing them of the pendency of these petitions. Pursuant to the aforesaid direction, the State took requisite steps and various impleadment applications on behalf of the appointed candidates came to be filed. The batch came to be placed before this Court on 11 August 2021 pursuant to an order of nomination made by the Hon'ble Chief Justice. When this batch was taken up on 31 August 2021, Sri Shashi Nandan, learned Senior Counsel appearing in the lead writ petition, drew the attention of the Court to what was described to be a Government Order of 22 April 2021. A copy of that document was provided to the learned Additional Advocate General to enable him to verify the same and obtain necessary instructions. The petitioners by way of a supplementary affidavit of 01 September 2021 placed on the record the document which had been referred to the Court during the course of proceedings taken on 31 August 2021. The document which stands appended with that supplementary affidavit is concededly not a Government Order but merely a communication by the Special Secretary to the Commission. Along with the aforesaid affidavit, the petitioners also brought on record the communication dated 09 June 2020 addressed by the Joint Secretary in the Government of U.P. to the Deputy Director General of Police (Personnel).
Learned counsels for parties were thereafter heard at length by the Court on 02 September 2021. All the impleadment applications were allowed and learned Senior Counsels appearing on their behalf were also heard. During hearing, the parties prayed for time to place on the record a chart indicating the categories in which the degrees and other testimonials held by various petitioners would fall in terms of the communication of 09 June 2020. Those charts were thereafter placed on the record on 03 September 2021. The Court in the course of hearing of this batch on 02 September 2021 placed the learned Additional Advocate General as well as Sri G.K. Singh learned Senior Counsel appearing for the Commission on notice of a perceived need to ensure that in future recruitments the employer as well as the selecting body predetermine the issue of equivalence in order to ensure a fair and transparent selection being undertaken and unnecessary litigation which may derail the recruitment exercise itself being avoided. The learned Additional Advocate General on instructions of the Additional Chief Secretary (Personnel) has stated that henceforth the said Department of the State would ensure that the issue of which qualifications would be liable to be treated as equivalent would be settled before the commencement of the selection process. Insofar as the Commission is concerned, although learned Senior Counsel was requested to obtain instructions and apprise the Court of its stand on the aforesaid aspect, it was stated that the Commission needed further time for consideration. The matter was thereafter closed for judgment.
B. PRINCIPAL CHALLENGE The writ petition as originally framed essentially challenged the exclusion of the petitioners on the ground that all of them held degrees and testimonials which were either equivalent or superior to the 'O' Level certificate as issued by the NIELIT. The challenge in this batch essentially rests on this plank with the petitioners contending that they have been wrongly excluded from the selection process. The core question which therefore stands posited is whether the qualifications possessed by the petitioners renders them eligible to participate in the selection process which restricted the zone of consideration to those who held either an O level certificate issued by NEILIT or any other qualification equivalent thereto.
It was also contended that since in the past the respondents had accepted those degrees and diplomas as being in compliance with the essential qualifications prescribed for appointment of Assistant Review Officers, it was not open for them to deny the right to participate in the present recruitment exercise. Although in the writ petition it was also asserted that the syllabus and course content of the degrees and diplomas held by the petitioners would establish that the petitioners had been sufficiently instructed in all topics which form part of the 'O' Level course, that issue was neither pressed nor argued by learned counsels appearing for the petitioners. The two principal submissions which were ultimately urged for the consideration of the Court are noted hereinafter.
Elaborating upon the aforesaid contentions learned senior counsels submitted that the degree and diploma courses which the petitioners had undergone were liable to be considered as being in sufficient compliance with the requirements of the rules. According to the petitioners, the degrees held by them were clearly liable to be viewed as qualifications which were higher and superior to the 'O' Level certificate which was an elementary course administered by NIELIT. It was further contended that since the degrees and diplomas held by them included the study of Computers and Computer Applications, those were liable to be treated as superior and higher qualifications in the same line of progression. Learned Senior Counsels then assailing the decision of the Expert Committee as constituted by the Commission, submitted that the aforesaid decision was clearly without jurisdiction since the issue of equivalence was liable to be decided by the appointing authority and in any case was not an issue which could have been left for the determination of the Commission which was merely a selecting body. In support of the aforesaid contention, Sri Nandan, learned Senior Counsel placed reliance upon the following passages from the judgment of the Supreme Court in Dr. Krushna Chand Sahu Vs. State of Orissa2:
"31. Now, power to make rules regulating the conditions of service of persons appointed on Govt. Posts is available to the Governor of the State under the Proviso to Article 309 and it was in exercise of this power that the present rules were made. If the statutory Rules, in a given case, have not been made, either by the Parliament or the State Legislature, or, for that matter, by the Governor of the State, it would be open to the appropriate Government (the Central Government) under Article 73 and the State Government under Article 162) to issue executive instructions. However, if the Rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions. (See: Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910: (1968)1 SCR 111: (1968) 2 LLJ 830]).
32. In the instant case, the Government did neither issue any administrative instruction nor did it supply the omission with regard to the criteria on the basis of which suitability of the candidates was to be determined. The members of the Selection Board, of their own, decided to adopt the confidential character rolls of the candidates who were already employed as Homoeopathic Medical Officers, as the basis for determining their suitability.
33. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Article 309. It is basically the function of the rule-making authority to provide the basis for selection. This Court in State of A.P. v. V. Sadanandam: [1989 Supp (1) SCC 574 : 1989 SCC (L&S) 511: (1989)11 ATC 391] observed as under : (SCC pp. 583-84, para 17) "We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old rule and for personnel belonging to other zones being transferred on promotion to offices in other zones. In drawing such conclusion, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment of the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive."
(Emphasis supplied) Dealing with the question of a higher or superior qualification being liable to be viewed as being in compliance with the essential qualifications prescribed under the relevant rules, Sri Nandan, firstly drew the attention of the Court to the judgment of the Supreme Court in Chandrakala Trivedi Vs. State of Rajasthan and others3 which interpreting the word "equivalent" held thus:
"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."
Sri Nandan then placed reliance upon the judgment of the Supreme Court in Parvaiz Ahmad Parry Vs. State of Jammu and Kashmir and others4 and more particularly paragraphs 15 and 16 of the report which are extracted hereunder:
"15. 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.
16. 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."
Reliance was placed by learned Senior Counsel also on the decision of the Supreme Court in State of Uttarakhand and Others Vs. Deep Chandra Tewari and Another5 to submit that the candidature of a candidate possessing a higher qualification cannot be rejected on that basis. Reliance was placed on the following observations as made by the Court in that decision:
"11. We are conscious of the principle that when particular qualifications are prescribed for a post, the candidature of a candidate possessing higher qualification cannot be rejected on that basis. No doubt, normal rule would be that candidate with higher qualification is deemed to fulfill the lower qualification prescribed for a post. But that higher qualification has to be in the same channel. Further, this rule will be subject to an exception. Where the prescription of a particular qualification is found to be relevant for discharging the functions of that post and at the same time, the Government is able to demonstrate that for want of said qualification a candidate may not be suitable for the post, even if he possesses a "better" qualification but that "better" qualification has no relevance with the functions attached with the post."
It was then urged that the communication of 22 July 2021 read along with the letter of 09 June 2020 established beyond a measure of doubt that the qualifications possessed by all the petitioners had been duly accepted by the State as being equivalent to the 'O' Level Certificate and that consequently the objections as taken by the respondents here clearly pale into insignificance. Sri Nandan submitted that the comparative chart submitted on behalf of the writ petitioners establishes that all their testimonials have been accepted by the State respondents as being in compliance with the requirement of the rules and in any case being sufficient evidence of being equivalent to the 'O' Level certificate issued by NIELIT. In view of the aforesaid it was submitted that the candidature of the petitioners has been wrongly rejected by the respondents.
The communication of 22 July 2021 is in the following terms:-
"voxr djkuk gS fd orZeku esa vf/kdka'k lsok fu;ekofy;ksa esa dEI;wVj ^*vks^* ysoy vFkok led{k vgZrk HkrhZ ds fy, U;wure 'kSf{kd vgZrk ds fu/kkZfjr dh xbZ gSA fdUrq ^*vks^* ysoy ds led{k vgZrk dkSu&dkSu lh gksxh ;g Li"V ugha gSA 2& mYys[kuh; gS fd x`g foHkkx }kjk iqfyl foHkkx esa fyfid] ys[kk ,oa xksiuh; lgk;d laoxZ esa HkrhZ ds fy, ^*vks^* ysoy dh led{k vgZrk ds fu/kkZj.k gsrq Jh Mh0,l0;kno] izks0 okbZ pkalyj@izks0 dEI;wVj lkbal] ;w0ih0Vh0;w0 dh v/;{krk esa ,d lfefr dk xBu fd;k x;k Fkk] ftlesa Mk0 j?kqjkt flag izks0 ,oa foHkkxk/;{k] ,p0ch0Vh0vkbZ0dkuiqj rFkk Jh v'kjQ vyh iz/kkukpk;Z jktdh; ikyhVsfDud vkneiqj xksaMk lfEefyr FksA mDr lfefr dh laLrqfr;ksa ds vk/kkj ij x`g foHkkx ds 'kklukkns'k la[;k&889@6 iq&1&20&650&59@2002 Vh0lh0 fnukad 09&06&2020 ¼izfr layXu½] }kjk ^*vks^* ysoy dh led{krk ds lEcU/k esa vkns'k fuxZr fd;s x;s gSa tks x`g foHkkx ij ykxw gSA 3& vr% lE;d fopkjksijkUr x`g foHkkx }kjk ^*vks^* ysoy ds led{k fu/kkZfjr vgZrkvksa ij vkbZ0Vh0foHkkx dk vfHker izkIr fd;k x;kA vkbZ0Vh0 foHkkx ds ijke'kZuqlkj x`g foHkkx }kjk ^*vks^* ysoy ds led{k fu/kkZfjr dh xbZ vgZrkvksa ij vkbZ0Vh0foHkkx }kjk lgefr O;Dr dh xbZ gSA bl izdkj x`g foHkkx ds 'kklukns'k ,oa vkbZ0Vh0foHkkx ds ijke'kZ ds vuqlkj fuEufyf[kr vgZrk,a ^*vks^* ysoy ds led{k fu/kkZfjr fd;s tkus ;ksX; gS%& ....
4- vr% bl lEcU/k esa eq>s dgus dk funs'k gqvk gS fd d`i~;k mi;qZDr izLrj&3 esa of.kZr vgZrkvksa dks ^*vks^* ysoy ds led{k fu/kkZfjr fd;s tkus ds lEcU/k esa vk;ksx dk vfHker@lq>ko 'kh?kz miyC/k djkus dk d"V djsaA"
The relevant parts of the order of 9 June 2020 are extracted hereinbelow:-
"x`g ¼iqfyl½] vuqHkkx&1 y[kuÅ% fnukad% 09 twu] 2020 fo"k; %& m0iz0 iqfyl fyfid] ys[kk ,oa xksiuh; lgk;d laoxZ ¼r`rh; la'kks/ku½ fu;ekoyh] 2020 ds iz[;kiu djk;s tkus ds dze eas dEI;wVj esa ^*vks^* Lrj izek.k i= dh led{krk dk fu/kkZj.k ds lEcU/k easA egksn;] mi;qZDr fo"k;d vius i= la[;k% Mhth&pkj&115 ¼172½@98 ¼v½ fnukad 19-05-2020 dk d`i~;k lanHkZ xzg.k djus dk d"V djsa] ftlds }kjk mRrj izns'k iqfyl fyfid] ys[kk ,oa xksiuh; lgk;d laoxZ ¼r`rh; la'kks/ku½ fu;ekoyh] 2020 esa nh x;h O;oLFkk ds ifjisz{; esa dEI;wVj esa ^*vks^* Lrj izek.k i= dh led{krk dk fu/kkZj.k] dEI;wVj vkijsVj xzsM&, ds inksa ij lh/kh HkrhZ] 2013 dh 'kSf{kd vgZrk esa rduhdh f'k{kk dh led{krk gsrq fnukad 03-03-2014 dks vk;ksftr cSBd dh desVh esa lnL; ¼1½ Jh Mh0,l0;kno] izks0 okbl pkalyj@izks0 dEI;wVj lkabl] ;w0ih0Vh0;w0 y[kuÅ] ¼2½ Mk0 j?kqjkt flag] izks0 ,oa foHkkxk/;{k dEI;wVj lkabl ,p0ch0Vh0vkbZ0 dkuiqj m0iz0 rFkk ¼3½ Jh vljQ vyh] iz/kkukpk;Z] jktdh; ikyhVsfDud] vkneiqj xks.Mk }kjk fd;s x;s fu/kkZj.k ds vuqlkj iqfyl fyfid] ys[kk ,oa xksiuh; lgk;d laoxZ esa ^*vks^* Lrj izek.k i= dh led{krk dk fu/kkZj.k dk izLrko fd;k x;k gS] tks fuEuor~ gS%& ..........
3& bl lEcU/k esa eq>s ;g dgus dk funs'k gqvk gS fd mRrj izns'k iqfyl fyfid] ys[kk ,oa xksiuh; lgk;d laoxZ lsok ¼r`rh; la'kks/ku½ fu;ekoyh] 2020 ds dze esa mjksDrkuqlkj ^*vks^* ysosy dh led{krk fu/kkZj.k fd;s tkus gsrq miyC/k djk;s x;s izLrko ij lgefr iznku dh tkrh gS] lkFk gh ;g Hkh lqfuf'pr fd;k tk;s fd vU; dksbZ dkslZ@lVhZfQdsV mDr vgZrk gsrq NwV rks ugha jgk gSA"
Sri Nandan lastly submitted that the benefit of the decision as embodied in the communications of 9 July 2021 and 9 June 2020 must stand extended to the petitioners also since they were merely clarificatory. In support of this submission Sri Nandan placed reliance upon the following passage from the decision of the Supreme Court in Praveen Kumar C.P. Vs. Kerala Public Service Commission6: -
"26. Note (v) of Clause 7 of the employment notification in the case PK and Note (vi) of Clause 7 of the employment notification in the case of AD required disclosure of the equivalency orders. A plain reading of the two GOs clearly reflect that their degrees were equivalent to the requisite qualifications contained in the eligibility criteria. In the case of Aarya K. Babu (supra), the disputed subject was recognized subsequently and introduced as part of the eligibility criteria. The principle of equivalency was not the main reasoning on the basis of which the said case was decided. The word "equivalence" in its plain meaning implies something which is equal to another. In the field of academics, application of the principle of equivalency in relation to degrees in two subjects would mean that they had the same standing or status all along, unless the official instrument according equivalency specifies a date from which the respective subjects would be treated as such, in express terms or by implication.
27. Whether a GO would have prospective effect or relate back to an earlier date is a question which would have to be decided on the basis of text and tenor of the respective orders. The GOs which declared appellants' degrees to be equivalent to those required as per the applicable notifications were not general orders but these two orders were person specific, relating to the two appellants. Once the GOs specifically declared that their B.Ed. degrees were equivalent to the designated subject which formed part of the employment notification, the GOs in substance have to be interpreted as clarificatory in nature and these cannot be construed to have had elevated the status or position of the degree they already had after the declaration was made in the GOs. The subject GOs only recognised an existing state of affairs so far as the nature of the degrees were concerned and did not create fresh value for the degrees which the appellants possessed. Though these equivalent orders were not in existence on the dates of issue of employment notifications, the GOs in substance recognize such status from the dates of obtaining such degrees. The GOs do not reveal any intervening circumstances which could be construed to imply that the respective degrees acquired the equivalent status because of such circumstances occurring subsequent to grant of their B.Ed. degrees. The aforesaid Notes to Clause 7 of the employment notifications postulated disclosure of the number and date of the orders on equivalence. But the GOs to which we have referred treat the equivalency to be operating on the dates of obtaining such degrees. Thus, the defect, if any, on disclosure requirement, shall stand cured on issue of the University orders followed by the GOs. The GOs also specify the context in which these were issued and refer to the appellants being included in the list of KPSC. This being the case, we do not think treating the appellants' degrees as equivalent to those required under the applicable notifications by the GOs issued in the year 2019 would result in change in the rules of the game midway. At best, it can be termed as interpreting the rules when the game was on, figuratively speaking. Such a course would, in our opinion, be permissible. For this reason, we do not consider it necessary to deal with the different authorities cited on the principle of "change in the rule of the game midway". We have opined that the appellants' degrees in B.Ed. were equivalent to those required by the employment notifications and the equivalency orders were merely clarificatory in nature. For this reason, we do not think there was any fundamental breach of Notes (v) and (vi) of Clause 7 of the respective employment notifications in the cases of the appellants."
Learned senior counsel assailing the stand of the State in light of the aforesaid communications lastly submitted that in any case it would be wholly illegal and arbitrary for one Department of the State to accept the qualifications of the petitioners to be equivalent and the other taking a stand to the contrary. The writ petitioners also placed reliance upon the judgment rendered by a learned Judge of the Court at its Lucknow Bench in Aakash Verma and others vs. State of U.P. and others7. Aakash Verma was dealing with the recruitment of Sub Inspectors and Assistant Sub Inspectors. The rules which applied and governed that selection also prescribed the possession of an 'O' Level Certificate as an essential qualification. That writ petition too had been preferred by candidates who asserted that although they held qualifications which were superior and higher to the 'O' Level, they had been wrongly excluded from the selection process. The learned Judge proceeded to hold that upon the consideration of the comparative chart of all courses undergone by the petitioners there with the syllabus 'O' Level Courses, established that the topics and subject of study comprised in the 'O' Level Course stood included in the degrees and diplomas possessed by the petitioners. The learned Judge then proceeded to observe that the 'O' Level Certificate was a foundational course in Computers and that insistence of the respondents there on allowing only such candidates who have been appointed after training from a particular institute gives rise to the issue of "institutional exclusivity" which would be wholly unreasonable. The learned Judge further proceeded to observe that the insistence on candidates possessing an 'O' Level Certificate issued by NIELIT was wholly unreasonable.
C. SUBMISSIONS OF THE RESPONDENTS Sri Neeraj Tripathi, the learned Additional Advocate General, on the other hand, submitted that the challenge raised in these writ petitions must necessarily fail in light of the judgment of the Full Bench of the Court in Deepak Singh and Others Vs. State of U.P. And Others8. It was contended that the issue of a higher qualification being accepted does not arise at all considering the rules governing the recruitment process. It was submitted that the State had taken a conscious decision to restrict the field of eligibility only to those who possessed the O level certificate. The learned Additional Advocate General contended that the said decision was based on a fair assessment by the State of the nature of duties assigned and functions to be performed by Assistant Review Officers. Sri Tripathi submitted that for an Assistant Review Officer to efficiently discharge his duties, elementary knowledge of computers as may be obtained upon completion of an O level course was found to be sufficient and that it is not open for the petitioners to compel the State to employ persons who may hold qualifications which may be asserted to be recognised as superior to or better than the O level certificate. The State in essence asserted that the prescription of a qualification fell within the exclusive domain of the employer and that the decision taken in respect of the present recruitment cannot be said to be arbitrary or unfair.
Turning then to the decision of the learned Judge in Aakash Verma, the learned Additional Advocate General invited the attention of the Court to the judgment of the Division Bench of the Court in State of U.P. Vs. Aakash Verma9 reversing that judgment and in light of which it was submitted that the submissions as urged were not liable to be accepted.
Sri Tripathi then proceeded to take the Court through the communication of 20 July 2021 to submit that the same did not represent or embody a principled decision taken by the respondents on the question of equivalence. In fact, Sri Tripathi contended that a careful perusal of that communication indicates that the respondents had merely sought the advice of the Commission in that respect. Insofar as the communication of 9 June 2020 is concerned, it was the submission of the learned Additional Advocate General that the same can have no application since the concerned Department in this batch has not adopted the decision embodied in that order. It was pointed out that the aforesaid communication related to the Police Ministerial, Accounts and Confidential cadre and cannot be applied to recruitment to the post of Assistant Review Officers.
Sri G.K. Singh learned senior counsel appearing for the Commission submitted that it was constrained and bound to undertake the exercise of evaluating equivalence since it had received numerous applications from candidates who did not possess the O level certificate and relied upon degrees and diplomas which were asserted to be either an equivalent or a better qualification. Learned senior counsel submitted that in the absence of any guidance or predetermined criteria formulated by the appointing authority, it was left to the Commission to undertake the aforesaid exercise. Sri Singh submitted that the decision of this Court in Prashant Kumar Jaiswal Vs. State of U.P.10 since affirmed by the Supreme Court in Mukul Kumar Tyagi Vs. State of U.P.11 recognise the right of the recruiting agency to undertake that evaluation.
D. THE CORE PRINCIPLES Before embarking upon the exercise to answer the principal question which arises for determination and dealing with the rival submissions noticed above, it would be relevant to recognize the basic principles which must guide the Court while considering challenges like the present. The challenge raised in this batch of writ petitions of candidates asserting right of consideration by virtue of possessing a qualification liable to be treated as equivalent or higher is not novel. The question of whether a qualification is liable to be recognized as equivalent or one which is higher or superior to that stipulated, has fallen for consideration before the Court on numerous occasions in the past. However, from the body of precedent which has evolved around the subject, certain well accepted and recognised first principles can be culled out.
The first well recognized principle is that the prescription of a particular qualification must be recognized as being reserved for the employer who must be recognised to have the right to adjudge which qualifications would suitably equip an incumbent to discharge the duties and responsibilities attached to a particular post or office. The prescription of a qualification is a matter of recruitment policy which stands reserved for the employer to formulate bearing in mind the nature of functions and duties attached to a particular post. Courts must recognise the secondary function that they are expected to perform in this regard restricting the scrutiny of review to whether the qualifications as prescribed can be said to be arbitrary or irrational.
The second well settled precept which must be reiterated is that it is not the function of the Court to adjudge or evaluate the suitability or desirability of a particular qualification that may be prescribed. Here too the Courts must exercise due restraint and desist from treading down this path since these issues must be left to the fair judgment and assessment of the employer and the experts in the field.
These principles as repeatedly enunciated by this Court as well as the Supreme Court were noticed in Asheesh Kumar And 6 Others Vs. State of U.P. And 2 Others12 in the following terms:
"16. The correctness of the submission advanced would essentially have to be tested bearing in mind the following cardinal principles. The prescription of a qualification is essentially and primarily a role reserved for the employer. It is not for this Court while exercising its jurisdiction under Article 226 of the Constitution to arrogate to itself that function. Similarly, it is neither the function nor the role of the Court to adjudge or assess the suitability or desirability of a particular qualification that may be stipulated. Lastly, it is not for Courts to assume upon themselves the authority to delve into questions of equivalence of degrees and educational qualifications. That function must necessarily stand reserved for the experts in the field namely the academicians.
17. The Supreme Court in Zahoor Ahmad Rather Vs. Imtiyaz Ahmad, (2019) 2 SCC 404, reiterated these settled principles holding: -
"26. ...... The prescription of qualifications for a post is a matter of recruitment policy. The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on a specific statutory rule under which the holding of a higher qualification could presuppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the High Court was justified in reversing the judgment [Zahoor Ahmad Rather v. State of J&K, 2017 SCC OnLine J&K 936] of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the Division Bench."
A similar note of restraint was entered in Maharashtra Public Service Commission Vs. Sandeep Shriram Warade, (2019) 6 SCC 362:
9. 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 on a par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same."
More recently three learned Judges of the Supreme Court in Punjab National Bank Vs. Anit Kumar Das, 2020 SCC Online SC 897, observed:-
"21. Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications......"
This Court while deciding Asheesh Kumar also noticed the significant restraint which must be brought to bear with the precedents holding in unambiguous terms that it would be incorrect for Courts to assume the duty, function or authority to delve into questions of equivalence of degrees and educational qualifications. As this Court noted that functions must necessarily be recognized as being reserved for experts in the field. That well recognized restraint stands echoed in the judgment of the Supreme Court in Zahoor Ahmad Rather and Others Vs. Sheikh Imtiyaz Ahmad and Others13 with the Court observing that equivalence of qualifications is not a matter which could be determined in exercise of the power of judicial review. The Supreme Court went on to observe that the question of whether a particular qualification is to be regarded as equivalent is a matter for the recruiting authority to determine. Significantly, in Sandeep Shriram Warade the Supreme Court in more categorical terms observed that questions of equivalence would fall outside the domain of judicial review. The principles and restraints noted above were reiterated and re-emphasized in the decision of the Supreme Court in Anit Kumar Das.
Dealing with the aforesaid aspect, this Court in Prashant Kumar Jaiswal observed: -
"39. While dealing with this issue, the Court before proceeding further notes and has to necessarily bear in mind that the power to prescribe a particular qualification vests exclusively in the employer. It is the employer who is the best judge to assess what qualifications must be necessarily possessed by an incumbent to a particular post. While exercising its powers of judicial review, this Court cannot step into the shoes of the employer and judge as to what would be an appropriate qualification. The narrow window within the contours of which the Court would interfere with such a decision is only where the qualifications prescribed are found to be ultra vires a legislative enactment or where it is demonstrated that the qualification prescribed is wholly extraneous to the duties and functions attached to a post. The Court under Article 226 of the Constitution also cannot determine the equivalence between two qualifications since such an exercise would clearly fall within the domain of experts. In view of the above, this Court comes to the conclusion that there was no inherent illegality when the respondents proceeded to prescribe the eligibility qualification to be the possession of a CCC Certificate or a certificate equivalent thereto. The Court also as noted above does not find any illegality attached to the ratification by the Board of Directors to the decision of the Managing Director as embodied in his order dated 5 July 2013."
The Full Bench of the Court in Deepak Singh had an occasion to extensively review the decisions rendered on the question of prescription of a particular qualification and the oft-repeated claims by candidates asserting that their degrees or testimonials are liable to be treated as equivalent. The Full Bench proceeded to hold that the prescription of a qualification is a subject which must necessarily be left to the wisdom and discretion of the employer.
E. THE PIVOTAL ROLE OF RULES OF SELECTION The other important aspect which must be borne in mind when Courts are faced with challenges like the present is of the pivotal impact which the rules governing selection have in order to answer the question which stands posited. Firstly, the issue of an equivalent qualification being accepted would only arise where the particular rules do envisage and provide that an equivalent qualification would also be liable to be considered. This Court in the decision of the Asheesh Kumar noticed the position of a rule which did not envisage an equivalent degree as being recognized to hold a candidate eligible for selection. Noticing the aforesaid aspect, the Court observed:
"13. At the very outset it becomes pertinent to note that the relevant stipulation in the advertisement extracted above, specifically required candidates to possess a degree in either English Literature or Language alone. It nowhere prescribed that any other degree equivalent thereto would also be acceptable. This the Court notices in addition to the admitted position that the respondents are not shown to have taken any decision holding a degree in General English to be equivalent to the qualifications prescribed in the advertisement. The advertisement viewed in that sense did not contemplate the inclusion of candidates who did not possess the twin essential qualifications stipulated or for the selecting body delving into the issue of "equivalence" of degrees."
The Court notes this particular aspect since the petitioners had initially placed heavy reliance upon the judgment rendered by a learned Judge at the Lucknow Bench of this Court in Aakash Verma. While the judgment of the learned Judge in Aakash Verma has since then come to be set aside by a Division Bench of the Court in an intra court appeal referred to above, the Court notes that the learned Judge there proceeded to delve into the question of equivalence even though the rules which applied did not provide for the same. Those rules as they stood at the relevant time required all candidates to possess a certificate of 'O' Level from DOEACC/NIELIT alone. In view of the aforesaid, the Court reiterates the position as enunciated in Asheesh Kumar that a contention with respect to equivalence can only arise where the rules in question do permit an equivalent degree as conferring eligibility upon a candidate to participate in the selection process.
F. A HIGHER OR SUPERIOR QUALIFICATION The third aspect of significance which flows from the rival submissions which have been addressed is the issue of a "higher" or a "superior" qualification. Firstly, and on pure etymological principles, it may be noted that the words "equivalence" or "equivalent" are not synonymous with "higher" or "better". The Oxford English Dictionary [Second Edition] defines the word "equivalence" as under: -
"3.a Equal in value. Now only in more restricted uses:(a) of things regarded as mutually compensating each other or as exchangeable;
5.a That is virtually the same thing: identical in effect; tantamount;
6. Having the same relative position or function" corresponding;"
The word "equivalent" is defined as: -
"1.a Something equal in value or worth;
2. A word expression or sign etc. of equivalent meaning or import;"
Thus, judged purely on a grammatical plane, it is manifest that a higher or better qualification cannot be recognised as being synonymous with the expression "equivalent qualification". Undisputedly, the rules which govern the present recruitment do not make any provision for a higher or superior qualification being recognized as enabling a candidate to be held to be eligible. To put it in other words, those rules do not in any express terms provide for a higher or superior qualification being relevant for the purposes of adjudging the eligibility of a candidate.
It becomes relevant to note that the issue of higher or superior qualification essentially stems from the decisions of the Supreme Court in Jyoti K.K. v. Kerala Public Service Commission14, Chandrakala Trivedi Vs. State of Rajasthan and others, State of Uttarakhand and Others Vs. Deep Chandra Tewari and Another and Parvaiz Ahmad Parry Vs. State of Jammu and Kashmir and others. As was noticed by the Supreme Court in Zahoor Ahmad Rather Vs. Imtiyaz Ahmad, Jyoti K.K. was a decision which turned essentially on the language of Rule 10(a)(ii) of the Kerala State and Subordinate Services Rules, 1958. That rule specifically provided those higher qualifications which presupposed the acquisition of the lower qualification prescribed for the post to be sufficient. It was the specific and explicit inclusion of higher qualifications rendering a candidate eligible to apply for selection that formed the basis for the judgment in Jyoti K.K. It becomes apposite to note at the cost of repetition that undisputedly the rules which govern the present selection do not make any provision akin to that which was found as existing in Rule 10 noticed above. In Zahoor Ahmad Rather, the Supreme Court noticed and held that it was this distinguishing feature in the light of which the judgment of the Supreme Court in Jyoti K.K. is liable to be appreciated. Significantly, it was further observed that absent such a rule it would not be permissible to draw an inference that a higher qualification would either presuppose the acquisition of another or lower qualification or for that matter clothe the candidate with eligibility to apply and participate in the selection process. It would be pertinent to advert to the following observations as entered in paragraph 26 of the report:
"26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti KK in the subsequent decision in Anita [(2015) 2 SCC 170]. The decision in Jyoti KK turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily pre-supposes the acquisition of another, albeit lower, qualification. ...."
Turning then to the judgment of Chandrakala Trivedi, the Court notes upon a careful reading of that decision that the same turned significantly on the appellant there having been provisionally selected and appointed. While noticing that aspect the Supreme Court observed that the High Court had erred in not considering the higher qualification as equivalent to the Senior Secondary School Certificate Examination. The Court deems it apposite to extract the following observations as made in Chandrakala Trivedi:
"7. In the impugned judgment, the High Court has given a finding that the higher qualification is not the substitute for the qualification of Senior Secondary or Intermediate. In the instant case, we fail to appreciate the reasoning of the High Court to the extent that it does not consider higher qualification as equivalent to the qualification of passing Senior Secondary examination even in respect of a candidate who was provisionally selected.
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."
While Deep Chandra Tewari has been noticed and explained by the Full Bench of the Court in Deepak Singh, it may be noted that even there the Supreme Court observed and recognized an exception to the basic principle of a candidate possessing a higher qualification being eligible to apply. In paragraph 11 of the report, the Supreme Court held as follows:
"11. We are conscious of the principle that when particular qualifications are prescribed for a post, the candidature of a candidate possessing higher qualification cannot be rejected on that basis. No doubt, normal rule would be that candidate with higher qualification is deemed to fulfill the lower qualification prescribed for a post. But that higher qualification has to be in the same channel. Further, this rule will be subject to an exception. Where the prescription of a particular qualification is found to be relevant for discharging the functions of that post and at the same time, the Government is able to demonstrate that for want of said qualification a candidate may not be suitable for the post, even if he possession "better" qualification but that "better" qualification has no relevance with the functions attached with the post."
Explaining the exception which would operate even where a candidate asserts holding a better qualification, the Supreme Court held that the same would not suffice if the government or the recruiting agency were able to demonstrate that the better qualification may not be suitable or relevant for the post in question. The Court bears in mind the submission of the learned Additional Advocate General that the State Government has consciously restricted the field of eligibility to only those who possess an 'O' Level certificate cognizant of the fact that the recruitment was being made for appointment of Assistant Review Officers. Sri Tripathi had submitted that in light of the nature of duties and tasks which Assistant Review Officers are to perform, the State justifiably opined that a certificate of 'O' Level would sufficiently empower a candidate to discharge functions attached to that post.
The State as the employer undisputedly has the authority to rule on the prescription of qualifications. It discharges that obligation bearing in mind a variety of factors such as:
(A) Nature of the post to which an appointment is to be made;
(B) The duties and responsibilities attached to such a post; and (C) the hierarchy of that post in the cadre structure.
Apart from the above, the employer must also bear in mind the factors of redundancy, office attrition and the creation of job opportunities for different sets of constituents of the State. The Court cannot shut its eyes to the limited opportunities of employment which are available under the State. It is thus imperative to recognize the burden and obligation of the State as an employer to balance the interests of certificate, diploma and degree holders. The State would be acting within its authority as the author of a recruitment policy when it takes into consideration the nature of opportunities which may otherwise be available to diploma and degree holders and thus restricting the field of eligibility to those with an O level certificate. It was these "societal concerns" which were emphasized and underlined by the Supreme Court in Zahoor Ahmad Rather where while enunciating the factors which the State may possibly take into consideration while prescribing qualifications, it observed thus:
"27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The state is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti KK must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti KK turned."
Parvaiz Ahmad Parry rested on the Supreme Court finding that the candidate there had Forestry as one of the major subjects at the graduation level and one who had gone on to obtain a Master's Degree in the same field. It was in the aforesaid backdrop that the Supreme Court found that the appellant must be recognized as possessing the prescribed qualification.
The Full Bench of our Court in Deepak Singh while evaluating contentions urged on similar lines framed the following questions for consideration:
"5. .....
A. Whether a Degree in the field in question is entitled to be viewed as a higher qualification when compared to a Diploma in that field?
B. Whether the decisions in Alok Kumar Mishra and Kartikey lay down the correct position in law when they hold that a Degree holder is excluded from the zone of consideration for appointment as a Junior Engineer?
C. Whether a degree holder can be held to be ineligible to participate in a selection process for Junior Engineer in light of the relevant statutory rules?
D. Whether the exclusion of degree holders from the zone of consideration would meet the tests as propounded by the Supreme Court in State of Uttarakhand Vs. Deep Chandra Tewari?"
After noticing the judgments of the Supreme Court noted above and while answering question of whether a degree holder could be held to be entitled to be considered as eligible to apply for a post which stood restricted to diploma holders, observed thus:
"15. A diploma in engineering essentially is designed to impart practical aspect of the engineering and the mere perusal of the syllabus reveals that the Diploma in Engineering is aimed to equip the candidates, who can cater to the practical requirement of engineering with emphasis on the practical works. In short, it aims to train persons for execution of the works and handling of equipments, etc. whereas the graduates in Engineering are taught with syllabus which provides theoretical training in the field of Engineering with low emphasis on the practical part of the engineering.
.....
19. We are afraid that the said Judgement has no application to the facts of the present case inasmuch as in the present case the specified required qualification was "Diploma in Engineering" and Degree Holders were specifically excluded.
...
24. The next case relied upon by Sri Ashok Khare in Parvaiz Ahmad Parry vs. State of Jammu & Kashmir and others, [2016 (1) ESC 54 (SC)]. In the said case, the matter related to appointment to the post of J & K Forest Service Range Officers, Grade-I, wherein the prescribed qualification was B.Sc. (Forestry) or its equivalent from any University recognised by the Indian Council of Agricultural Research (hereinafter referred to as the 'ICAR'). The appellants, in the said case, had a qualification of B.Sc. with Forestry as one of the major subjects and Master in Forestry i.e. M.Sc. (Forestry) on the date when he applied for the post in question, the Apex Court allowed the appeal holding as under:
"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.
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."
The said case has no applicability to the facts of the present case inasmuch as Diploma in Engineering and B.Tech in Engineering are two different courses and thus the ratio of the judgement in the case of Parvaiz Ahmad Parry vs. State of Jammu & Kashmir and others has no applicability to the facts of the present case.
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39. Sri Khare, in support of his submissions made earlier, has contended that in some of the statutory Rules, Diploma in Engineering is specified as the minimum qualification while with regard to some of the Departments, Diploma in Engineering is specified as required qualification. Be that as it may we have already held that Diploma in Engineering being distinct from Graduate in Engineering, no benefit flows from the advertisement whether the Diploma in Engineering is prescribed as a 'minimum qualification' or 'required qualification'.
40. Testing the said arguments as raised by Sri Khare although on record no Rules have been placed, however, in view of the finding recorded by us that Diploma in Engineering is not the same as Bachelor in Engineering and also the finding recorded by us that the State is well equipped to prescribe the requisite required qualification keeping in view the requirement of posts for which the advertisements are issued, we hold that whether Diploma in Engineering is specified as a minimum qualification or a required qualification, Graduates in Engineering would not be entitled to be considered and will be out of zone of consideration unless a candidate possess both the qualifications to explain it further suppose a candidate after acquiring Diploma in Engineering also passes Graduation in Engineering he would be eligible, in view of the fact that he has Diploma in Engineering which is the required qualification for applying to the post and cannot be denied to participate only because he has any qualification additional to the prescribed qualification. However, the State Government is free to provide for equivalence as was done by the Kerala State while incorporating Rule 10(a)(ii). Since there is nothing on record in the present case to show that there was any Rule or Directive of the State Government to provide equivalence, it is only logical to conclude that degree holders are ineligible to participate in the selection process for Junior Engineer in the light of the specific provisions incorporated under the advertisement in question."
Deepak Singh, thus, lays emphasis on the fact that the qualifications which are specifically provided for alone would determine the eligibility of a particular candidate. It further held that where the rules do not envisage or permit candidates holding a better qualification specifically, they must be viewed as being excluded from consideration. The Court in Deepak Singh further pertinently observed that since a Diploma in Engineering is distinct from a Graduate degree in the same field, no benefit could flow to a candidate holding a higher or better qualification merely because the diploma in the subject was prescribed as a minimum or required qualification. Deepak Singh thus eloquently explains and clarifies the legal position that merely because a candidate perceives that a qualification held by him is superior or better that alone would not entitle him to be considered as eligible unless the rules of selection themselves permit and envisage the acceptance of such an assertion. In any case the decisions pressed in aid of the submission that a higher qualification must be accepted as conferring a right on a candidate to participate in the selection process must give way in light of the subsequent pronouncement by three learned Judges of the Supreme Court in Punjab National Bank. The Supreme Court in that decision in unequivocal terms upheld the exclusion of graduates from the field of eligibility and the restriction of the selection zone to those who had studied up to class XII.
Before closing this chapter, it would be relevant to also advert to the decision of the Division Bench of the Court in Aakash Verma. While reversing the decision rendered by the learned Judge and which was relied upon by the petitioner, the Court held: -
"29. Respondents have neither challenged the statutory rules i.e Rules, 2016 prescribing 'O' Level certificate in Computer Application from DOEACC/NIELIT as an essential qualification nor they had challenged the advertisement dated 26.12.2016 in pursuance of which the recruitment for three posts have been completed. In absence of challenge to the Rules and the advertisement and having applied in pursuance of the advertisement, it was not open for the respondents to come before the Court with the prayer to hold them eligible for the aforesaid three posts as they possessed the preferential qualification, but not the essential qualification. Prayers in the writ petitions would clearly show that there was no challenge to the statutory prescription and the advertisement. At the threshold, the candidate must possess essential qualification and, if he/she possesses the essential qualification, then only the preferential qualification would be considered in case there are two or more candidates having essential qualification and have secured equal marks in examination/interview etc. When a candidate does not possess the essential qualification, but has only preferential qualification, it cannot be said that he/she is to be held eligible for appointment on the post for which a qualification is prescribed as an essential qualification. There is nothing in Rules, 2016 which stipulates that possession of higher qualification would presuppose acquisition of the essential qualification of possessing 'O' Level certificate from DOEACC/NIELIT. In absence of such a stipulation, the hypothesis that the higher qualification presupposes the acquisition of lower essential qualification cannot be accepted.
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31. The prescription of qualification for a post, is a matter of recruitment policy. The State or the employer is empowered to prescribe the qualification as a condition of eligibility. The Court while exercising the function of judicial review, cannot expand upon ambit of prescribed qualification.
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35. Once the statutory Rules prescribe for having 'O' Level certificate from this particular institute, by exercising judicial review, the Court cannot substitute its own view to hold that the higher qualification would certainly include the 'O' Level certificate issued by DOEACC/NIELIT. We, therefore, hold that the learned Single Judge has wrongly held that higher qualification held by the respondents would be inclusive of 'O' Level certificate and, therefore, the finding of the learned Single Judge that the respondents meet the essential eligibility condition, is not correct."
The aforesaid decision reiterates the settled limitations on the extent of judicial review in such matters with the Court emphasizing that it would neither be permissible to expand upon the prescribed qualification nor should the Court substitute its own view to hold a higher qualification to be equivalent to that which has been prescribed.
In view of the aforesaid discussion, the Court is of the considered view that in light of the provisions made in the Rules which govern the selection in question, it would be impermissible to recognise the petitioners as being eligible to apply or participate in the selection process. Those Rules do not envisage equivalence being accorded to what may be perceived to be a "higher" or "better" qualification. Absent such a stipulation being statutorily engrafted, the Court finds no justification to expand the field of eligibility in the exercise of its powers of judicial review.
Turning then to the challenge to the decision of the Expert Committee formed by the Commission, this Court is of the considered view that in light of the aforesaid conclusions, no occasion arises to evaluate the merits of the opinion formed by that Committee. Additionally, and for completeness of the record, it may be again noted that while the writ petition did append voluminous material on the strength of which the petitioners may have desired to establish that the fields and topics studied in the O level course stand subsumed in the programs that they have pursued, no submissions with respect to course content were addressed or urged. This perhaps since the petitioners placed heavy reliance upon the communications of 22 July 2021 and 9 June 2020 on the basis of which it was contended that once the State itself had accepted the qualifications held by the petitioners as being equivalent, the petitioners were entitled to succeed.
G. THE COMMUNICATIONS OF 22 JULY 2021 AND 9 JUNE 2020 In order to appreciate and evaluate the merits of that submission the Court firstly adverts to the order of 22 July 2021. As is manifest from a close reading of that communication, while it does refer to the consultations on the issue of equivalence between various departments, including the Department of Information Technology in the State Government, it does not represent a categorical or principled decision of the State since in essence, it merely communicates its views for the consideration of the Commission. In fact, as is evident from a careful reading of the concluding part of that communication the State had forwarded its views to elicit the "advise" and "suggestions" of the Commission only. That communication neither represents nor is it capable of being interpreted as constituting a definitive opinion of the State and its desire for the same being accepted and acted upon by the Commission.
The second communication of 9 June 2020 was sought to be explained by the learned Additional Advocate General as being the view of a particular Department of the State alone and thus not binding on the Department of Personnel which was overseeing the present recruitment. This submission was countered by the petitioners who submitted that departments of the State cannot be permitted to have individual views on the subject and that the acceptance of such a submission would be clearly discriminatory and violative of Articles 14 and 16 of the Constitution. The objection of the petitioners commends acceptance on first blush since departments of the State Government are merely sinews and strands created for the purposes of implementation of the policies of the Government covering myriad subjects and fields. Departments are merely individual facets of the State. However, that objection would not merit further evaluation for the following reasons.
What the State has failed to point out while dealing with the communication of 9 June 2020 is the statutory framework against which it is liable to be viewed. The Court deems it apposite to refer to Rule 11 of the U.P. Police Ministerial, Accounts and Confidential Assistant Cadre Service Rules, 2015 which while dealing with the question of "Preferential Qualifications" provides as under: -
"11. Other things being equal, a candidate shall be given preference who has-
1. higher certification from the DOEACC@NIELIT Society or Bachelors Degree in Computer Application/Technology or higher recognized by the Government;
2. graduation in Law from any institute or college or University recognised by University Grants Commission;
3. has served in the Territorial Army for at least two years;
4. possesses "B" Certificate of the National Cadet Corps.
The exact modality for giving preference shall be decided by the Board in consultation with the Head of Department."
Rule 11 as is evident does envisage a qualification higher or superior to the O level certificate being considered relevant for the purposes of selection, albeit under the head of preferential qualifications. Those Rules while prescribing essential qualifications had originally provided for an O level certificate alone. However, in terms of the Third Amendment to those Rules published on 15 April 2020, Rule 10(1) has now been amended to provide for a qualification recognised as equivalent to the O level certificate also being considered for the purposes of adjudging eligibility of candidates. However, on a conjoint reading of Rules 10 and 11 of those Rules, it is manifest that the communication of 9 June 2020 must be understood in light of the fact that they did permit the inclusion of qualifications higher than the O level also being relevant for the purposes of selection. The Rules which apply to the present recruitment, do not embody any provision akin to Rule 11. In view of the aforesaid, the Court is of the considered opinion that the aforesaid communication also does not advance the case of the petitioners here.
H. OBLIGATIONS OF THE RECRUITING BODY AND COMMISSION In Prashant Kumar Jaiswal, this Court recognized the obligation of the recruiting body as well as the entity which is in charge of undertaking the selection process, to fairly disclose qualifications which are liable to be considered as equivalent where the rule so prescribes and permits. It was further held that a decision on this aspect must necessarily be taken at the outset in order to ensure fairness of the selection process. It must be stated that candidates must be made aware of the qualifications which would govern the zone of eligibility from the inception so as to eschew allegations of arbitrariness being levelled and selections being assailed on the pedestal of the "rules of the game" having been changed. The obligation to lay down an unambiguous selection criterion which flows from and forms the essence of the rights conferred by Articles 14 and 16 of the Constitution would necessarily include a duty being recognised as bearing upon the selecting and recruiting body the legal obligation to predetermine and formulate a well-defined criterion of eligibility. This facet which forms an integral part of any selection process cannot be postponed for determination after the selection process has commenced. If this procedural safeguard is not ordained to be mandatory, it may also lead to situations where various individuals who may not have initially applied raising the objection that the state of ambiguity which prevailed deprived them of the right to participate in the recruitment. The Court also bears in mind the imperatives of ensuring that large scale recruitment exercises which are undertaken do not come to be derailed on account of litigation which would necessarily ensue once such decisions are taken mid-way or after the selection process has commenced. This is a phenomenon which the Court has been compelled to face and grapple with on numerous occasions in the recent past.
Emphasizing the importance of this aspect, the Court in Prashant Kumar Jaiswal observed: -
"43. In essence, the ''rules of the game'' must be clearly defined and pre determined so as to eschew any allegation of a lack of fair and transparent procedure having been adopted in the selection process. When the advertisement prescribes or confers the authority upon the selecting body to recognise candidates as eligible to participate on the basis of an ''equivalent'' qualification, it necessarily presupposes the determination and formulation of criteria which would guide and govern the question of equivalence. It would entail the recognition of certain predetermined qualifications which would be treated or recognised as equivalent. At its lowest, at least the criteria to confer or recognise equivalence would have to be formulated in advance.
44. The series of decisions taken by the Board of Directors can only be described as evidence of their vacillating views on the subject. This Court deems it appropriate to enter a note of caution that in matters pertaining to the prescription of an eligibility qualification, it is not only appropriate but also imperative that the employer exercises its powers so as to confer a degree of certainty with respect to the eligibility criteria as also to ensure that such conflicting decisions do not result in the creation of doubts and uncertainty with respect to the qualification required for a post in a public service."
The decision of the Court in Prashant Kumar Jaiswal was affirmed by the Supreme Court in Mukul Kumar Tyagi. Dealing with this aspect, the Supreme Court in that decision held as follows:
"59. The equivalence of qualification as claimed by a candidate is matter of scrutiny by the recruiting agency/employer. It is the recruiting agency which has to be satisfied as to whether the claim of equivalence of qualification by a candidate is sustainable or not. The purpose and object of qualification is fixed by employer to suit or fulfil the objective of recruiting the best candidates for the job. It is the recruiting agency who is under obligation to scrutinise the qualifications of a candidate as to whether a candidate is eligible and entitled to participate in the selection. More so when the advertisement clearly contemplates that certificate concerning the qualification shall be scrutinised, it was the duty and obligation of the recruiting agency to scrutinise the qualification to find out the eligibility of the candidates. The self-certification or self-declaration by a candidate that his computer qualification is equivalent to CCC has neither been envisaged in the advertisement nor can be said to be fulfilling the eligibility condition.
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61. We are unable to concur with the above view taken by the Division Bench. Scrutiny of Computer qualification claimed by candidate to be equivalent to CCC certificate is the obligation and duty of the recruiting agency/employer as per the advertisement itself as noted above. The recruiting agency or the employer cannot abdicate their obligation to scrutinise the eligibility of candidate pertaining to computer qualification and reliance on self-certification by the candidate is wholly inappropriate and may lead to participation of candidates who do not fulfil the mandatory qualification as per the advertisement.
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64. It is relevant to note that in the earlier recruitment, which was held in 2011 for the post of Technician Grade-II only CCC certificate issued by DOEACC was part of mandatory qualification and it was for the 2014 recruitment that CCC certificate or equivalent computer qualification was provided for. When equivalent qualification to CCC was provided for as a mandatory qualification, it was incumbent on the Corporation as well as on the recruitment agency to reflect on the said issue and to lay down criteria or guidelines to declare equivalence of the CCC certificate. It is, thus, clearly proved from the record that no criteria or guidelines were framed or determined either by the Corporation or the Commission before completion of the recruitment process. The employer, who had issued advertisement and required fulfilling of qualification as prescribed ought to be keenly interested in selecting candidates, who fulfil the qualification and serve the post as per requirement of employer. Preparation of the select list without scrutiny of the computer qualification of the candidates, who do not possess CCC certificates is abdication of duty and obligation, both by Corporation and the Commission. It has been noted by learned Single Judge in his judgment that it was only after direction by the Court in the writ petition, the Corporation and Commission became alive to the obligation, which was on them to find out equivalence.
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66. When issue is of the equivalence of a qualification, which is mandatory qualification for a post, there should be yardsticks declaring equivalent or equivalence, which has to be declared by any body entrusted with such jurisdiction and who is competent to declare equivalence of a qualification. In absence of any such declaration, it is for the employer to provide for the methodology for determining the equivalent qualification. The CCC certificate is issued by DOEACC/NIELIT, which is on a particular syllabus. Syllabus of the CCC certificate is placed before us at pp. 225 to 230 of the paper book. For declaring any other certificate as equivalent to CCC, the syllabus on which CCC certificate has been granted is most material factor, which has to be looked into. In the present case, no exercise has been done by the Corporation or the Commission to determine the equivalence of the qualification claimed by the candidates, who had not passed CCC certificate from DOEACC/NIELIT. Learned Single Judge has, after consideration of materials on record, made following observations:-
"As is evident from the above discussion, the question of equivalence was left to hinge solely upon a self-declaration of the candidate. Neither the Corporation nor the Commission had any list of recognised equivalent certificates to guide them on the subject. The policy on equivalence which came about on 27 January, 2015 was a decision taken not only too late but as noted above suffered from fundamental flaws. There was a complete and evident lack of enquiry on course content. Leaving these issues to be decided solely on the basis of a self-declaration of candidates is unequivocal evidence of a failure to exercise powers and an abject abdication of functions vesting in the Commission. More fundamentally, none of the certificates other than CCC were shown or established to be a legally recognised equivalent."
The aforesaid statement of the law in Prashant Kumar Jaiswal and Mukul Tyagi clearly warrants the recordal of the conclusion that the issue of equivalence must necessarily be predetermined and cannot be left to the vagaries of the recruiting or selecting body taking a decision in that regard either after the commencement of the selection or not taking a view on that question at all. A failure to rule on this issue may in fact be liable to be viewed as an abdication to discharge an obligation which is integral to a fair and transparent selection process. Permitting such a recourse would raise the specter of innumerable future recruitment exercises falling into a quagmire of litigation. The Court appreciates the positive stand as taken by the Department of Personnel in this regard and evidenced by the statement of the learned Additional Advocate General recorded above. The Commission, however, has remained non-committal on this aspect for reasons unknown and inscrutable. It becomes pertinent to note that learned senior counsel appearing on its behalf feebly submitted that the exercise to approach the question of equivalence was initiated only once the number of applicants came to be known. That cannot possibly constitute a constitutionally valid reason for not attempting to take up the aforesaid issue at the inception itself so as to ensure the selection process being recognised as fair and compliant with Articles 14 and 16 of the Constitution. This Court fails to discern any logic that may justify the issue of equivalence not being considered or predetermined at the conceptual stage of the selection process. Regard must also be had to the fact that it was always open to the Commission to have sought necessary clarification from the recruiting department even before commencing the recruitment process. In any case, the reasons recorded above clearly warrant directions being framed on the aforesaid lines which would bind both the State as well as the Commission in respect of future selection proceedings are concerned.
I. ANCILLARY ISSUES The Court finds no compelling reason to deal with the submission of Sri Nandan based on the decision of the Supreme Court in Praveen Kumar C.P. in light of its conclusions recorded in respect of the communications of 21 July 2021 and 09 June 2020. The Court also finds no necessity to individually deal with the question of equivalence and acceptance of the various qualifications possessed by the petitioners and asserted to have been recognised in the two communications referred to above. The Court in the preceding parts of this decision has already explained the ambit and operation of those two communications. It has also found that they do not aid or assist the case of the petitioners.
The Court also reiterates the findings recorded in Prashant Kumar Jaiswal that certificates of courses conducted by NEILIT or its accredited centers alone are liable to be recognised as having the authority to award the "CCC" or the "O" level certificates. It had clearly found in that decision that NEILIT had not authorised any other agency or entity to conduct such courses or issue certificates which are connected with courses that are specifically tailored and formulated by it. In view of the above, only such O level certificates are liable to be recognised as may have been issued either by NEILIT or its accredited center or agency. Consequently, certificates issued by other entities bearing similar titles or nomenclatures would also not enure to the benefit of the petitioners here.
The Court also notes that the contention of a Post Graduate Diploma in Computer Applications [PGDCA] being treated as equivalent to the O level certificate was specifically noticed and rejected by the Full Bench in Deepak Singh. In view of the aforesaid, candidates asserting eligibility on the strength of a PGDCA also cannot be accorded any relief.
The Court also fails to find any merit in the submission of the petitioners that the Commission had no authority to examine the issue of equivalence. As noted above, it became imperative for the Commission to visit this issue in light of the numerous applications received by it from applicants claiming either parity with the O level or asserting that they held superior or higher qualifications. It becomes pertinent to observe that attempting to ascertain a claim of parity with the qualifications prescribed or a situation where a candidate claims that he holds a qualification better than that prescribed, is not the same as evolving a criterion for selection. It also cannot be equated with the selecting agency formulating the "basis for selection". The decision in Dr. Krushna Sahu was dealing with a case where the selection committee proceeded to determine suitability based upon an assessment of character rolls. That decision is thus clearly distinguishable. In any case, both Prashant Kumar Jaiswal as well as Mukul Kumar Tyagi have recognised the right of the recruiting agency to rule on the question of equivalence.
J. SUMMATION In view of the aforesaid discussion the Court records the following conclusions:-
A. The prescription of a qualification is a matter of recruitment policy which stands reserved for the employer to formulate bearing in mind the nature of functions and duties attached to a particular post. Courts must recognise the secondary function that they are expected to perform in this regard restricting the scrutiny of review to whether the qualifications as prescribed can be said to be arbitrary or irrational.
B. It is not the function of the Court to adjudge or evaluate the suitability or desirability of a particular qualification that may be prescribed. Here too, the Courts must exercise due restraint and desist from treading down this path since these issues must be left to the fair judgment and assessment of the employer and the experts in the field.
C. The issue of an equivalent qualification being accepted would only arise where the rules do envisage and provide that such a qualification would also be liable to be considered. In the absence of an express stipulation in that respect being provisioned for in the relevant rules, no occasion would arise for the Court to examine that question.
D. The Court reiterates the position as enunciated in Asheesh Kumar that a contention with respect to equivalence can only arise where the rules in question do permit an equivalent degree as conferring eligibility upon a candidate to participate in the selection process.
E. Zahoor Ahmad Rather is a binding authority for the proposition that equivalence of qualifications is not a matter which should be determined in exercise of the power of judicial review. The Supreme Court went on to observe that the question of whether a particular qualification is to be regarded as equivalent is a matter for the recruiting authority to determine. The Court also bears in mind the decision in Sandeep Shriram Warade where the Supreme Court in more categorical terms held that questions of equivalence would fall outside the domain of judicial review.
F. Deepak Singh lays emphasis on the fact that the qualifications which are specifically provided for alone would determine the eligibility of a particular candidate. It further held that where the rules do not envisage or permit candidates holding a better qualification specifically, they must be viewed as being excluded from consideration. Deepak Singh thus clarifies the legal position that merely because a candidate perceives that a qualification held by him is superior or better, that alone would not entitle him to be considered as eligible unless the rules of selection so ordain or provide for a higher qualification being accepted.
G. It would neither be permissible to expand upon the prescribed qualification nor should the Court substitute its own view to hold a higher qualification to be equivalent to that which has been prescribed.
H. Absent a stipulation in the Rules which govern the selection in question, it would be impermissible to recognise the petitioners as being eligible to apply or participate in the selection process. Those Rules do not envisage equivalence being accorded to what may be perceived to be a "higher" or "better" qualification. Absent such a provision being statutorily engrafted, the Court finds no justification to expand the field of eligibility in the exercise of its powers of judicial review.
I. The letter of 20 July 2021 merely elicits the views of the respondents for the consideration of the Commission. In fact, as is evident from a careful reading of the concluding part of that communication, the State had forwarded its views solely for the purposes of inviting the "advise" and "suggestions" of the Commission. That communication neither represents nor is it capable of being interpreted as constituting a definitive opinion of the State and its desire for the same being accepted and acted upon by the Commission.
J. The communication of 9 June 2020 must be understood and appreciated in the backdrop of the relevant Rules which envisaged preference being accorded to qualifications higher or better than the O level certificate. The aforesaid position is evident from a conjoint reading of Rules 10 and 11 thereof. The Rules which apply to the present recruitment carry no provision like Rule 11. In view of the aforesaid, the Court is of the considered opinion that the aforesaid communication also does not advance the case of the petitioners here.
K. The obligation to lay down an unambiguous selection criterion which flows from and forms the essence of the rights conferred by Articles 14 and 16 of the Constitution, would necessarily include a duty being recognised as bearing upon the selecting and recruiting body to predetermine and formulate a well-defined criterion of eligibility. This facet which forms an integral part of any selection process cannot be postponed for determination after the selection process has commenced.
L. The statement of the law in Prashant Kumar Jaiswal and Mukul Kumar Tyagi clearly warrants the recordal of the conclusion that the issue of equivalence must necessarily be predetermined and cannot be left to the vagaries of the recruiting or selecting body taking a decision in that regard either after the commencement of the selection or not taking a view on that question at all.
K. DIRECTIONS Accordingly and for the reasons aforenoted all these writ petitions fail and shall stand dismissed.
In light of the conclusions recorded above, a direction is hereby issued to the respondent Department as well as the Commission that henceforth the issue of equivalence of qualifications, if sanctioned and envisaged under the relevant rules, shall be determined and made known prior to the commencement of the selection process.
The stand of the Department of Personnel has already been noticed and recorded in these proceedings. The Court finds no justification for other departments and constituents of the State not following and adopting an identical practice. In view of the above, let a copy of this judgment be placed before the Chief Secretary of the Government of U.P. to instruct all other departments, agencies and entities of the State to henceforth ensure that the question of equivalence of qualifications, where the rules of recruitment so envisage as conferring eligibility, shall be determined prior to the commencement of any recruitment exercise. The Chief Secretary shall place an affidavit of compliance in this respect on the record of this writ petition within a period of 1 month from today.
The U.P. Public Service Commission is also directed to ensure that where the recruitment rules contemplate the acceptance of a higher qualification for the purposes of determining eligibility, that issue shall be decided and settled in consultation with the recruiting agency before the commencement of any recruitment exercise that may be initiated henceforth. The Secretary of the Commission shall place an affidavit of compliance in this respect on the record of this writ petition within a period of 1 month from today.
Order Date :- 17.9.2021 Rakesh/Arun K. Singh (Yashwant Varma, J.)