HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 4 Case :- WRIT - A No. - 44281 of 2015 Petitioner :- Devendra Singh And 34 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Siddharth Khare, Ashok Khare Counsel for Respondent :- C.S.C., Ajay Kumar Hon'ble Pradeep Kumar Singh Baghel,J.
All the thirty-five petitioners are the candidates for appointment on the posts of Additional Private Secretary in Uttar Pradesh Secretariat. They are aggrieved by a notification dated 29th July, 2015 issued by the Public Service Commission, Uttar Pradesh1 whereby their names have been included among such 385 candidates whose qualification in respect of computer has not been found in terms of the advertisement, and they have been asked to submit their Certificate Course in Computing (CCC) conducted by the DOEACC Society or the equivalent qualification by the Board of High School and Intermediate Education, by 17th August, 2015.
The essential facts are that the Commission issued an advertisement dated 25th December, 2010 calling applications for appointment on 240 posts of Additional Private Secretaries as general recruitment and 10 posts of Additional Private Secretaries as special recruitment for unfilled backlog vacancies belonging to Scheduled Castes and Scheduled Tribes in U.P. Secretariat. Such examination is known as Additional Private Secretary (U.P. Secretariat) Examination-2010. Clause-5 of the advertisement requires the following educational qualifications:
"5. Educational Qualification : Essential : (1) A Graduate degree from any University recognized by Law in India or any equivalent qualification recognized equivalent by the Govt.
(2) Minimum 80 words p.m. speed in Hindi shorthand and minimum 25 words p.m. speed in Hindi Type is essential.
(3) The knowledge of computer is essential as follows (A) Syllabus for CCC by DOEACC Society, Or (B) Course conducted by U.P. Secondary Education Board or any syllabus recognized equivalent to that."
The services of the Additional Private Secretary of the Uttar Pradesh Secretariat are governed by the Uttar Pradesh Secretariat Personal Assistant Service Rules, 20012, as amended on 06th December, 2005. Rule 8 of the 2001 Rules deals with the academic qualification. Rule 8 is relevant for the issue which arises in the present case. On 06th December, 2005, Rule 8 of the 2001 Rules was amended by the Uttar Pradesh Secretariat Personal Assistant Service (First Amendment) Rules, 20053, whereby the academic qualification has been substituted by adding some qualifications. The Rules-8, as was existing in the 2001 Rules and as has been substituted by the 2005 Rules, read as under:
"Column 1 Existing rule Column 2 Rule as hereby substituted
8. Academic qualification--A candidate for direct recruitment to a post in the service must possess the following qualifications:
(i) must have passed Intermediate examination of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognised by the Government as equivalent thereto;
(ii) must have a minimum speed of eighty words per minute and twenty five words per minute in Hindi shorthand and Hindi typewriting respectively;
(iii) must have general knowledge of computer operation and must be able to work in Window-98 envioronment using MS-Office and Hindi font for typing and taking out the printed out put.
8. Academic qualification--A candidate for direct recruitment to a post in the service must possess the following qualifications:
(i) must possess Bachelor's degree from a University established by law in India or a qualification recognised by the Government as equivalent thereto;
(ii) must have a minimum speed of eighty words per minute and twenty five words per minute in Hindi shorthand and Hindi typewriting respectively;
(iii) must possess the knowledge of Computer in accordance with--
(a) the course prescribed for the Certificate Course in Computing (CCC) conducted by DOEACC Society, or
(b) the course conducted by the Board of High School and Intermediate Education, Uttar Pradesh or a course recognised by the Government as equivalent thereto."
It is stated that all the petitioners made their applications in pursuance of the said advertisement. The recruitment process for the post is comprised of following three stages:
Stage-1 : Written examination in the subjects of General Knowledge and General Hindi. Stage-2 : Hindi shorthand and Hindi typing. Stage-3 : Computer knowledge test. All the petitioners appeared in the written examination which was held on 22nd September, 2013. Thereafter, they appeared in Hindi stenography and Hindi typing tests, which were held between 23rd March, 2014 and 30th March, 2014.
On 19th June, 2015, on the basis of aggregate of the marks awarded in the first and second stages as mentioned above, a result was notified by the Controller of Examinations of the Commission in the newspapers. The actual result was also displayed on the website of the Commission by the Controller of Examinations. The petitioners have brought on record the result so declared as annexure-4 to the writ petition. It was mentioned in the result that the candidates whose roll numbers are included in the list will be called for computer test. It is stated that the roll number of the petitioners find place in the said list. Thus, they were declared successful on the basis of the aggregate of marks obtained in the first and second stages of examination. However, the Commission issued a notification dated 29th July, 2015 to the effect that out of 1244 successful candidates of the first and second stages of examination, 385 candidates do not possess the eligibility qualification pertaining to computer knowledge in terms of the advertisement. Accordingly, the Commission issued a list of such 385 candidates on 29th July, 2015. The petitioners' name figure among such 385 candidates.
Dissatisfied with the said decision/notification of the Commission, the petitioners have preferred this writ petition for the following reliefs:
"(a) a writ, order or direction in the nature of certiorari quashing the notification dated 29.7.15 (Annexure No.5) in so far as it pertains to the petitioners;
(b) a writ, order or direction of a suitable nature commanding the respondents to permit the petitioners to participate in the third and final stage of selection comprising of Computer Test for recruitment as Additional Private Secretary (U.P. Secretariat) in pursuance to the advertisement dated 25.12.10 without taking any objection pertaining to the eligibility of the petitioners with reference to Computer knowledge;
(c) a writ, order or direction of a suitable nature commanding the respondents to treat the petitioners as fully eligible and qualified for the post of Additional Private Secretary (U.P. Secretariat) and not to take any objection on such basis;
(d) any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case; and
(e) award cost of the petition to be paid to the petitioners."
The petitioners' case is that there is no requirement of possessing a certificate of Certificate Course in Computing (CCC) awarded by DOEACC Society or some equivalent qualification awarded by the Board of High School and Intermediate Education either in the 2001 Rules or in the advertisement dated 25th December, 2010. It is submitted that only requirement is the knowledge to be possessed in Hindi shorthand, Hindi typing and computer and the same are to be tested on the basis of the examinations conducted by the Commission and it does not require any certificate in stenography, typing and computer knowledge.
It is further stated that insofar as the petitioners' knowledge of Hindi shorthand and Hindi typing is concerned, the Commission has tested it and the petitioners were declared successful. As regards the requirement of knowledge of computer, it is urged by the petitioners that that can be tested on the basis of computer test, which is the third and final stage of selection, and before holding the said test, the petitioners have been stopped on the ground of lack of requisite qualification. It is lastly urged that the Commission is a selecting body and it cannot add or subtract any statutory qualification. It is bound by the statutory qualifications provided in the relevant rules. The certificate awarded by the DOEACC society which is referred as 'CCC' certificate is a course on the computer concept. In fact, the DOEACC society does not conduct any such Certificate Course in Computing. The petitioners have brought on record a communication dated 29th August, 2013 issued by the Public Information Officer of National Institute of Electronics and Information Technology (NIELIT), Department of Electronics & Information Technology (DeitY), Ministry of Communications and Information Technology, Govt. of India, New Delhi.
In support of their submission, the petitioners have also brought on record an advertisement issued by the High Court of Judicature at Allahabad notifying Personal Assistant Recruitment Examination-2013 for filling up the vacancies of the Personal Assistants. It is pointed out by the petitioners that in Clause-4 of the said advertisement issued by the High Court also the only requisite qualification regarding computer is Computer Knowledge i.e. Data Entry, Word Processing and Computer Operation. It has also been stated by the petitioners that except three petitioners (petitioner nos. 1, 19 and 26) all the petitioners have now acquired the certificate from DOEACC society also.
A counter affidavit has been filed on behalf of the Commission. The stand taken in the counter affidavit is that the Commission has conducted two stages of examination. The first stage includes the paper of General knowledge and General Hindi and the second stage includes paper of Hindi shorthand and Hindi typing. On the basis of above two stages of examination, the Commission has declared the list of 1244 candidates, who have obtained 33% of marks in General knowledge & General Hindi and minimum 80 words per minute speed in Hindi shorthand & minimum 25 words per minute speed in Hindi typing. It is stated that the candidates who have cleared the first and second stages of examination are eligible to appear in the third stage of examination i.e. examination of computer knowledge subject to the condition that they must possess the qualification regarding their knowledge of computer in terms of requirement of the advertisement.
It is further stated that the Commission has scrutinized the applications of the candidates with the help of experts and found that 385 candidates, out of 1244 candidates, have produced the certificates regarding their computer qualification awarded by the private institutions and they are not found according to the advertisement. Hence, they have been asked to submit their certificate as required in the advertisement. It is stated that the requirements mentioned in the notice dated 29th July, 2015 are according to the relevant service rules i.e. 2005 Rules and the advertisement dated 25th December, 2010. It is further averred in the counter affidavit that before conducting the first and second stages of examination, it was made clear that the candidates are provisionally allowed to appear in the examination with the condition that before appearing in the third stage of examination they must ensure that they possess the required qualification according to the advertisement, otherwise if it is found at any stage that they lack the essential qualification, their candidature will be cancelled by the Commission. Thus, the petitioners were allowed to appear in the previous two stages of examination.
I have heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddharth Khare, learned counsel for the petitioners, learned Standing Counsel for the respondent no. 1 and Sri Ajay Kumar, learned counsel appearing for the respondent no. 2-Commission.
Sri Ashok Khare, learned Senior Advocate appearing for the petitioners, submits that the Commission has misconstrued Rule-8 of the 2001 Rules and Clause-5 of the advertisement dated 25th December, 2010. Rule 8 (iii) of the 2001 Rules requires only knowledge of computer operation in accordance with the course prescribed for the computer concept and it does not require any such certificate being 'CCC' conducted by the DOEACC Society. It is contended by Sri Khare that the said qualification is not a requisite qualification in terms of the relevant rules. Learned Senior Advocate has laid much emphasis on the words "must possess the knowledge of Computer". It was further urged by him that all the petitioners have knowledge of computer from the different institutions and presently except the petitioner nos. 1, 19 and 26, all the petitioners have obtained Computer Concept Certificate issued by the DOEACC society. One such certificate of the petitioner no. 9 Rakesh Srivastava has been brought on record as annexure-11 to the writ petition.
It is lastly urged that the Commission was not justified in rejecting the candidature of the petitioners at this stage when they have already qualified two stages, out of three stages, of the examination i.e. written examination and Hindi shorthand & Hindi typing. The respondents ought to have rejected the application of the petitioners before conducting the written examination.
Learned counsel for the Commission has contended that Clause-5 of the advertisement is in consonance with Rule-8 of the 2005 Rules. The question as to whether a candidate has knowledge of computer or not, can be decided only on the basis of a certificate issued by the DOEACC society. The other option for a candidate was to have knowledge in accordance with the course conducted by the Board of High School and Intermediate Examination. The third option available to the candidate was to have a certificate held to be equivalent to the aforesaid two certificates by the Government or any other organization.
It is further submitted on behalf of the Commission that it is true that there is a slight difference in language used in Class-5(iii) of the advertisement. However, in effect, Clause 5 (iii) of the advertisement demands same qualification as is provided under Rule 8 (iii) of the 2005 Rules. It is also submitted that the writ petition is premature as the candidature of the petitioners has not yet been rejected by the Commission.
I have considered the rival submissions advanced by the learned counsel appearing for the parties and perused the record.
The recruitment of the Additional Private Secretaries (U.P. Secretariat) is governed by the statutory rules i.e. Uttar Pradesh Secretariat Personal Assistant Service Rules, 2001. The said rule has been amended in the year 2005 by the 2005 Rules. The amended rule has already been extracted in the earlier part of this judgment. However, at the cost of repetition, Rule 8 (iii) of the 2005 Rules is again extracted below:
"(iii) must possess the knowledge of Computer in accordance with--
(a) the course prescribed for the Certificate Course in Computing (CCC) conducted by DOEACC Society,..."
The DOEACC Society is an Autonomous Scientific Society of the Department of Information Technology, under the Ministry of Communications and Information Technology, Government of India. It has prescribed the courses for the different levels of computer concept. The examination in question is "CCC" examination. For the said course, the candidates are sponsored by the private societies/centers at different places of the country. A candidate who passes the examination conducted by the DOEACC Society is issued 'CCC' Certificate. The certificate also contains the name of the institution which sponsors the candidate. A candidate, according to his/her performance, is awarded different grades like Grade 'A', 'B', 'C' & 'D'.
Concededly, there is no other organization or society in the name and style of DOEACC. When Rule 8(iii) of the 2005 Rules clearly requires a course prescribed for the Certificate Course in Computing (CCC) conducted by the DOEACC society, the said certificate is an essential qualification.
From a simple reading of Rule 8 of the 2005 Rules, it instantly brings out that 'CCC' certificate issued by the DOEACC Society is an essential qualification with an alternative of a course conducted by the Board of High School and Intermediate Education, Uttar Pradesh. It is not the case of the petitioners that they have the certificates issued by the Board of High School and Intermediate Education, Uttar Pradesh. The contention of learned Senior Advocate appearing for the petitioners that Rule 8(iii) of the 2001 Rules only requires the knowledge of computer, does not carry conviction. Thus, I regret to accept the said submission.
Accordingly, I find, the Certificate Course in Computing (CCC) conducted by the DOEACC Society is a minimum qualification in case a candidate does not have the certificate in terms of Rule 8 (iii) (b) of the 2005 Rules.
Learned Senior Advocate appearing for the petitioners has drawn the attention of the Court to an advertisement issued by the High Court of Judicature at Allahabad for recruitment on the post of Personal Assistant in the establishment of the High Court, Allahabad in the Pay Scale of Rs.9,300-34,800, Grade Pay Rs.4800/-, Pay Band-2, plus usual allowances. A copy of the said advertisement is on the record as annexure-8 to the writ petition.
From a reading of Clause-4 of the said advertisement it is evident that the qualification prescribed by the High Court is completely different. Qualification in the said advertisement reads as under:
"4. ESSENTIAL QUALIFICATIONS:
1. Bachelor's Degree from a recognized University or qualification equivalent thereto.
2. Gook-Knowledge of -
(i) English Shorthand having minimum speed of 100 Words per Minute; and
(ii) English Typewriting having minimum speed of 40 Words per Minute.
3. Computer Knowledge i.e. Data Entry, Word Processing and Computer Operation.
4. Preference shall be given to the candidate possessing good knowledge of Hindi Shorthand and Typewriting with speed of 80 and 30 words per minute, respectively."
Insofar as the submission of learned Senior Counsel appearing for the petitioners that except petitioner nos. 1, 19 & 26, all the petitioners have obtained 'CCC' certificate from the DOEACC society is concerned, the said submission has not been denied by the Commission in paragraph-22 of the counter affidavit. But the stand of the Commission is that Clause-11 (14) of the advertisement has not been followed and the fact remains that all the petitioners have obtained the requisite certificate from DOEACC Society after the last date of submission of the application.
Clause 11 (14) of the advertisement clearly provides that the candidates must have the eligibility qualification upto the last date of receipt of the application. Therefore, the qualification of the petitioners which they have acquired after the last date of submission of the application form, is of no help to them. Reference may be made to the judgment of the Supreme Court in the case of Ashok Kumar Sharma and others v. Chander Shekhar and another4. In the said case, the Supreme Court had earlier taken the view that if a candidate obtained a degree after the last date of application but before the interview, he can be considered eligible. However, the Supreme Court later on took the view that a candidate who acquires the degree after the last date of submission of form, cannot be accepted to have the qualification. The Supreme Court held as under:
"6. ....The proposition that where applications are called for prescribing a particular date as the last date for filling the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. ..."
As regards the submission of learned Senior Counsel appearing for the petitioners that the Commission ought to have rejected the application of the petitioners before the written examination is concerned, I find sufficient force in the said submission. Before holding the written examination, the Commission ought to have scrutinized the qualifications of each and every candidate. After the on-line submission of form, a candidate is also required to submit hard-copies of his certificates. The Commission was obliged to scrutinize at least minimum qualifications of the candidates and only those candidates who have the essential qualification in terms of the statutory rules and the advertisement ought to have been allowed to appear in the written examination. In the present case, the Commission has not made any scrutiny and has allowed the candidates to appear in the first stage of examination i.e. written test, wherein all the petitioners were declared successful. They were also allowed to participate in the second stage of examination by permitting them to appear in Hindi shorthand and Hindi typing test. In the second stage also, all the petitioners stood qualified. However, before the third stage of examination the petitioners' name have been included in the list of ineligible candidates. The petitioners have put in hard work and they have qualified the written test and shorthand & typing tests.
Insofar as submission of learned counsel for the Commission that the Commission has issued a press-notice dated 03rd September, 2013 to the effect that the candidates are allowed to appear in the examinations provisionally and if the candidates are sure that they have the essential qualification, only then they should appear in the examination and in case at any stage the Commission finds that the candidate does not have the essential qualification, his/her candidature would be rejected, is an issue which needs to be considered from a practical perspective.
Learned counsel for the Commission further submits that the Commission adopts this practice in other examinations also.
I find that the said press-notice is arbitrary and illegal. The Commission is a Constitutional body. It has been entrusted with the task of holding examinations for different posts. It is duty of the Commission that after the last date of submission of form, it should scrutinize the qualification and other requirements of statutory rules/advertisement of each and every candidate meticulously and if it is found that a candidate does not possess the essential qualification in terms of the advertisement or statutory rule, the candidature of such candidate should be rejected at the very threshold of the recruitment process and the candidate who lacks the minimum qualification should not be allowed to participate at any stage of the examination. The decision of the Commission to leave the matter of qualification upon the candidate cannot be said to be rational and reasonable. It is common experience that the statutory qualifications and the qualifications mentioned in the advertisement are sometimes open to more than one interpretation. A candidate is not expected to properly appreciate the essential qualifications prescribed in the statutory rules and in the advertisement. It is always a duty of the examining body or the employer to find out whether a candidate possesses the essential qualification or not. It is common experience that the Commission in several cases rejects the candidature just before the interview on the ground of lack of qualification. The Commission by publishing such notice and leaving the qualification at the discretion of the candidates cannot shift its responsibility on the candidates and wait for the last stage of the examination and only then, it rejects the candidature of the candidates on the ground of lack of essential qualification. The exercise of scrutiny must be completed by the Commission before conducting the very first stage of examination.
If the submission of learned counsel for the Commission is accepted then there would be uncertainty in the mind of the candidates that his candidature can be rejected in the last stage of recruitment process. For a candidate who has successfully qualified preliminary and written examinations, it will be too harsh to confront with a decision at the time of interview that he does not possess minimum/essential qualification. The Supreme Court in Ashok Kumar Sharma (supra) has held that candidature of ineligible candidate shall be rejected at initial stage. The relevant part of the said judgment is extracted below:
"6. ....Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan5...."
Therefore, I am of the considered opinion that the press-notice dated 03rd September, 2013, annexure-CA-1 to the counter affidavit, wherein it is provided that the candidate may ensure about their essential qualification, is arbitrary and illegal.
In the written submission the Commission has stated that it has not rejected the candidature of the petitioners. The relevant part of the written submission reads as under:
"Apart from this the writ petition had been filed on a pre-mature stage. The candidature of the petitioners had not yet been rejected by the Commission."
In view of the above, the Commission may take final decision about the candidature of the petitioners within six weeks from the date of communication of this order. In case the Commission takes a decision that the petitioners have acquired their 'CCC' certificate after the last date of submission of the form and on the said ground if their candidature is rejected, the Commission shall pay a sum of Rs.5,000/- to each petitioner as compensation, as the Commission had allowed them to appear in two stages of the examination which they have successfully qualified.
In view of the above, the writ petition is disposed of.
No order as to costs.
Order Date :-09th October, 2015 SKT/-
Hon'ble Pradeep Kumar Singh Baghel, J.
The writ petition is disposed of.
For order, see my order of the date passed on the separate sheets (fourteen pages).
Dt.-09th October, 2015.
SKT/-