Allahabad High Court

Manoj Kumar Singh & Others vs State Of ... on 17 October, 2014

Bench: Satyendra Singh Chauhan, Rakesh Srivastava




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

               -1-
 
                                                                            AFR
 
                                                       Reserved on : 26.09.2014
 
                                                       Delivered on : 17.10.2014
 
Case :- SERVICE BENCH No. - 32 of 2014
 
Petitioner :- Manoj Kumar Singh & Others
 
Respondent :- State of U.P. through Prin. Secy. (Appointment), Lucknow & Ors.
 
Counsel for Petitioner :- Nirankar Singh
 
Counsel for Respondent :- C.S.C., Amit Kr. Singh Bhadauriya, Lalit Shukla,
 
Subhash Vidhyarthi;
 
Case :- SERVICE BENCH No. - 49 of 2014
 
Petitioner :- Parnil Mishra
 
Respondent :- U.P. Power Corp. Ltd. Through Chairman Lko. & Another
 
Counsel for Petitioner :- Suresh Kumar Upadhyay,S.K.Upadhyay,Satish Chandra
 
Shukla
 
Counsel for Respondent :- Amit K.Singh Bhadauriya,Subhash Vidyarthi;
 
Case :- SERVICE BENCH No. - 83 of 2014
 
Petitioner :- Deepali Yadav
 
Respondent :- Secy. Electricity Service Commission U.P. Power Corp. Ltd.
 
Counsel for Petitioner :- Vivek Srivastava
 
Counsel for Respondent :- Amit K.Singh Bhadauriya;
 
Case :- SERVICE BENCH No. - 175 of 2014
 
Petitioner :- Vaibhav Mishra
 
Respondent :- Electricity Services Commission U.P. Power Corp. Ltd.
 
Counsel for Petitioner :- Hari Om Singh
 
Counsel for Respondent :- Amit K.Singh Bhadauriya;
 
&
 
Case :- SERVICE BENCH No. - 205 of 2014
 
Petitioner :- Ruchi Singh Raghuvanshi & 58 Ors.
 
Respondent :- State of U.P. through Prin. Secy. Appointment Lko. & Ors.
 
Counsel for Petitioner :- Dharm Raj Mishra
 
Counsel for Respondent :- C.S.C., Amit K.Singh Bhadauriya
 
Hon'ble Satyendra Singh Chauhan,J.

Hon'ble Rakesh Srivastava,J.

(Delivered by Hon. Rakesh Srivastava J.)

1. On 03.09.2013, the Electricity Service Commission, U.P. Power

Corporation Ltd., Lucknow (for short 'Commission') issued an

advertisement inviting applications for appointment to the post of Assistant

Engineer (Trainee) in Electrical, Electronics, Computer Science Engg. /

Information Technology and Civil Engineering Branches in the U.P. Power

Corporation Ltd., Lucknow (for short ''Corporation'). The last date for

submission of online applications was 10.10.2013. Condition no. 4 (c) of

the advertisement dated 02.09.2013 which provided for minimum cut off

marks in the qualifying examination as an eligibility criterion to participate

in the recruitment process was struck down by this Court at Allahabad.

Accordingly, on 15.10.2013 a corrigendum was issued whereby condition

no. 4 (c) in the advertisement dated 02.09.2013 was deleted. The last date

for submission of online applications was extended up to 02.11.2003.

2. A perusal of the advertisement dated 02.09.2013 would show that inter alia

120 posts of Assistant Engineer (Trainee) Electrical were advertised. As per

the said advertisement, only the candidates possessing a B. Tech degree in

Electrical Engineering from a University or a course recognized as

equivalent thereto by the State Government, were eligible for appointment

to the said post.

3. The petitioners who hold a B. Tech degree in Electrical & Electronics

Engineering from different Engineering Colleges also submitted their

applications online for appointment to the post of Assistant Engineer

(Trainee) Electrical, the post with which we are concerned in the present

writ petition. The petitioners were issued call letters and in pursuance

thereof, the petitioners appeared in the Computer Based Test (CBT). On

18.12.2013, the result of CBT was declared but the name of the petitioners

did not figure in the list of the successful candidates. On enquiry the

petitioners came to know that their candidature was not considered, as

according to the respondents the petitioners did not possess the degree of B.

Tech in Electrical Engineering which made them ineligible for appointment

to the post in question. After having failed to get any response to the

representations made by the petitioners to the authorities concerned, the

petitioners preferred the writ petitions mentioned above. The advertisement

dated 03.09.2013 is not under challenge. The petitioners have only prayed

for a direction to the opposite parties to treat the B. Tech degree in Electrical

& Electronics Engineering possessed by them as equivalent to the B. Tech

degree in Electrical Engineering, and to consider their candidature.

4. All the writ petitions mentioned above raise a common question of fact and

law and as such they are being disposed of by a common order.

5. Sri Nirankar Singh, learned counsel for the petitioners in Writ Petition No.

32 (S/B) of 2014 has made the following submissions :-

a. Since the online applications of the petitioners were accepted and

the petitioners were permitted to appear in the written examination,

the opposite parties were estopped from withholding their result on

the ground that the petitioners were not eligible.

b. The High Court at Delhi has held that the B. Tech degree in

Electrical & Electronics Engineering is equivalent to the B. Tech

degree in Electrical Engineering and in this view of the matter alone

the opposite parties were obliged to consider the candidature of the

petitioners for appointment to the post in question.

c. In the year 2011, the candidates possessing the B. Tech degree in

Electrical & Electronics were considered and appointed to the post

of Assistant Engineer (Trainee) Electrical even though the

qualification for appointment to the said post was the same as the

one mentioned in the advertisement dated 03.09.2013 and as such

the opposite parties should not and cannot refuse to consider the

candidature of the petitioners for appointment on the post in

question.

6. Sri Vivek Srivastava, Sri Hari Om Singh, Sri Dharm Raj Misra and Sri S. K.

Upadhyaya, learned counsels appearing on behalf of the petitioners in the

other petitions have reiterated the submissions advanced by Sri Nirankar

Singh.

7. Per contra the learned counsels appearing on behalf of the opposite parties

have controverted the arguments made on behalf of the petitioners.

According to the counsels for the opposite parties the writ petition is devoid

of merit and is liable to be dismissed as such.

8. Shri Subhash Vidhyarthi, learned counsel appearing for the opposite party

nos. 2 to 4 has inter alia submitted that the petitioners had not filled their

online application forms correctly and as such, the petitioners cannot invoke

the plea of promissory estoppel as alleged by the learned counsel for the

petitioners, that the B. Tech degree in Electrical & Electronics possessed by

the petitioners was not equivalent to the B. Tech degree in Electrical as

alleged by the petitioners, that in the facts and circumstances of the case the

petitioners do not derive any benefit from the judgment of the High Court at

Delhi, that the petitioners are admittedly not qualified for appointment to

the post of Assistant Engineer (Trainee) Electrical and merely because some

ineligible candidates were considered and appointed on the post in question

in the past, the candidature of the petitioners cannot be considered for

appointment to the post in question. The learned counsel has submitted that

the alleged illegality committed by the Corporation in the year 2011 cannot

be perpetuated.

9. Learned Standing Counsel appearing on behalf of opposite party no. 1 and

Sri Lalit Shukla, learned counsel appearing on behalf of the opposite party

nos. 5 & 6 have adopted the arguments of Sri Subhash Vidhyarthi, learned

counsel for opposite party nos. 2 to 4.

10. Heard the learned counsels for the petitioners, the learned Standing Counsel,

Sri Subhash Vidhyarthi and Shri Lalit Shukla, learned counsels appearing on

behalf of the opposite parties. Counter affidavit has been filed only on

behalf of opposite party nos. 2 to 6 in writ petition no. 32 of 2014 (S/B).

The petitioners chose not to file any rejoinder affidavit.

11. We have considered the rival submissions made by the learned counsel for

the parties and perused the records. With the consent of the learned counsel

for the parties the writ petitions are being disposed of finally.

12. We will first deal with the plea of estoppel raised on behalf of the

petitioners.

13. The qualification for appointment to the post of Assistant Engineer

(Trainee) in various branches of Engineering in the Corporation is laid

down in the U.P. State Electricity Board Engineers Service Regulations,

1970 (for short 'Regulations') as amended from time to time. The said

Regulations were notified on 08.12.1970 by the erstwhile U.P. State

Electricity Board in exercise of the power vested in it, under section 79 (c)

of the Electricity (Supply) Act, 1948. The qualification for appointment to

the post of Assistant Engineer (Trainee) Electrical prescribed under the

Regulations is a B. Tech degree in Electrical Engineering or a Degree or

Diploma recognized as equivalent thereto by the State Government. There

is no dispute that the qualification for appointment to the post in question,

mentioned in the advertisement dated 03.09.2013, is the one prescribed by

the Regulations.

14. Sri Subhash Vidhyarthi learned counsel appearing for the opposite party

nos. 2 to 4 has submitted that the petitioners were B. Tech in Electrical &

Electronics and as such, as per the advertisement, they were not eligible for

appointment to the post in question. However, the petitioners were

permitted to provisionally appear in the CBT for the reason that in their

online application forms the petitioners mentioned their educational

qualification as B. Tech in Electrical Engineering instead of clicking the

option 'others'. The counsel submitted that in case the petitioners had filled

the forms correctly their online application forms would have been rejected

automatically. Sri Vidyarthi took us through the terms and conditions given

in the advertisement, the terms and conditions mentioned in the online

application form, and also through the declaration made by the petitioners in

their online application forms and then reiterated that the candidature of the

petitioners was liable to be rejected and has rightly been rejected. The

learned counsel has submitted with vehemence that since the petitioners

were guilty of misrepresentation, they cannot be permitted to invoke the

plea of promissory estoppel.

15. A perusal of the application forms of the petitioners of writ petition no. 32

of 2014 (S/B) (jointly annexed as annexure no.CA-4 to the counter affidavit

filed on behalf of opposite party nos. 2 to 4) would show that all the

petitioners of the said writ petition against the column "Grad Course" under

the head "Graduation Details" have mentioned "Electrical Engineering".

The relevant entry is as follows:

 
      Graduation Details
 
      Institute State
 
      Institute Name
 
      Grad Course                   Electrical Engineering
 
      Grad Passing Year
 
      Grad Percentage

Sri Vidyarthi, on the basis of record, has submitted that same is the position

of all the petitioners in the connected petitions.

16. In the advertisement dated 03.09.2013, it was specifically mentioned that

the detection of incorrect information or submission of false / fake

documents would tend to cancellation of candidature / appointment at any

stage. It was further stated that if at any stage it was found that any

information furnished in the online application was false / incorrect or the

candidate did not satisfy the eligibility criteria for the post applied, his

candidature would be treated as cancelled.

17. We find that in their online application forms, the petitioners have made the

following declaration:

"DECLARATION

I hereby declare that I have carefully read the instructions and all the

particulars stated in this application form are true and correct to the

best of my knowledge and belief. If any of these information

provided is found false / incorrect, I shall abide by the action and

decisions taken by the U.P. Power Corporation Limited, Lucknow.

..................................

Candidate Signature"

18. The note, in CAPITAL LETTERS, at the top of the online admit cards

issued to the petitioners contained the following note:

"THIS ADMIT CARD PROVISIONALLY ALLOWS YOU TO

APPEAR IN THE EXAMINATION ON THE BASIS OF

PARTICULARS PROVIDED BY YOU IN THE ONLINE

APPLICATION PART-A. ISSUANCE OF THIS ADMIT CARD

DOES NOT NECESSARILY MEAN ACCEPTANCE OF

ELIGIBILITY. COMPLETE FORM WITH UPLOADED

PARTICULARS WILL BE SCRUTINIZED SUBSEQUENTLY."

Moreover, the admit cards also contained the proforma of a declaration in

the following terms:

"I ............................... Son / Daughter of ............................. hereby

declare and solemnly affirm that I have fully understood all the

details provided in the Advertisement NO. 03/VSA/2013 and

accordingly all the particulars stated in the application form

submitted by me through online, are true to the best of my

knowledge and belief. If at any stage it is found that the information

furnished in the online application form is

false/fake/misinterpreted/incorrect or myself does not satisfy the

eligibility criteria for the post applied, my candidature may be

cancelled even after appearing in the Examination in addition to any

other action as may be deemed fit. I will not claim any refund of fees

or compensation or any sort of damages.

Date : ................

Place: .................

.............. ..................................

Thumb Impression Signature of the candidate

19. As per the instructions in the admit card the candidates were required to put

their thumb impression and signature on the declaration in the presence of

invigilator and hand over the same to the test administrator / invigilator in

the examination hall. Thus, all the petitioners had appeared in the

examination after furnishing the declaration mentioned above.

20. There is no dispute that all the petitioners had a B. Tech Degree in

"Electrical & Electronics" but in their online application forms instead of

"Electrical & Electronics" the petitioners had entered "Electrical". It was on

the strength of the incorrect qualification mentioned by the petitioners in

their online application forms that the petitioners were permitted to appear

in CBT. Subsequently, when the particulars furnished by the petitioners in

their online application forms were scrutinized, it transpired that the

petitioners did not possess the minimum qualification prescribed in the

advertisement for appointment to the post in question. Accordingly, a

decision was taken to withhold the result of the petitioners and not to

consider the candidature of the petitioners any further.

21. Sri Nirankar Singh, the learned counsel for the petitioner has submitted that

there was no intention on the part of the petitioners to make a wrong entry

in their online application forms. He has tried to justify the action of the

petitioners in mentioning "Electrical Engineering" as their qualification in

their application forms. The learned counsel, by invoking the principles of

promissory estoppel, has submitted that once the petitioners have been

permitted to appear in the examination the opposite parties are estopped

from withholding their results.

22. We regret this cannot be accepted.

23. No amount of justification for their conduct would come to the rescue of the

petitioners in the present case. It is well settled that the principle of

promissory estoppel is based on equitable principles and a person who has

himself misled the authority by making a fake statement, cannot invoke this

principle, if his misrepresentation misled the authority into taking a decision

which on discovery of the misrepresentation is sought to be cancelled.

24. In paragraph 7 of the case reported in 2003 (1) SCC 152, Central Airmen

Selection Board& Anr. vs. Surendra Kumar Das the Apex Court has held

as follows:-

"7. The question, therefore, is whether in a case of this nature the

principle of promissory estoppel should be invoked. It is well known

that the principle of promissory estoppel is based on equitable

principles. A person who has himself misled the authority by making

a fake statement, cannot invoke this principle, if his

misrepresentation misled the authority into taking a decision which

on discovery of the misrepresentation is sought to be cancelled. The

High Court has proceeded on the basis that the petitioner had not

made any misrepresentation in his application to the effect that he

had passed the Intermediate examination. As we have found above,

this finding of the High Court is erroneous, contrary to record and

therefore must be set aside. In his application, the respondent had

claimed that he had passed the Secondary examination as well as the

Higher Secondary +2 examination, and it is clear from the counter

affidavit filed on behalf of the appellants that his candidature was

considered on the basis that he had passed the Higher Secondary +2

examination, as in that case he was entitled to claim relaxation in the

matter of age. However, the mark sheet annexed to the application

disclosed that the respondent had failed in the subject Chemistry and

therefore, his claim in the application, that he had passed the Higher

Secondary +2 examination, was factually incorrect and a clear

misrepresentation. In these circumstances we are satisfied that the

respondent could not be permitted to invoke the principle of

promissory estoppel, and the High Court was clearly erred in law in

invoking the said principle in the facts of this case. The judgement

and order of the High Court therefore cannot be sustained."

25. In the present case, all the petitioners had a B. Tech degree in Electrical &

Electronics but in they made a false statement in their online application

forms by entering "Electrical" instead of "Electrical & Electronics". Thus,

the petitioners misled the authorities. In case the petitioners had mentioned

their educational qualification correctly in the application form, there is no

element of doubt that their applications would have been rejected and that

they would not have been permitted to appear in the CBT. Under these

circumstances, we do not find any infirmity or illegality in the action of the

opposite parties in withholding the result of the petitioners and not

considering the case of the petitioners for appointment to the post in

question, any further. Merely because the petitioners were permitted to

appear in the CBT, the opposite parties cannot be directed to declare the

result of the petitioners and consider their candidature for appointment to

the post in question.

26. The petitioners have raised the plea of estoppel against the opposite parties.

On the contrary, in the facts and circumstances of the case, it is the

petitioners who are estopped from challenging the action of the opposite

parties in withholding the result of the petitioners.

27. The first submission made by learned counsel for the petitioners is answered

in the negative.

28. In view of the misrepresentation made by the petitioners, the terms and

conditions mentioned in the advertisement and in the online admit cards

issued to the petitioners, and more specifically the declaration made by the

petitioners, the bunch of writ petitions mentioned above are not

maintainable and are liable to be dismissed as such. However, in view of the

fact that the careers of young men and women is at stake, we proceed to

examine the other two submissions made on behalf of the petitioners.

29. This brings us to the second and core submission made on behalf of the

petitioners. The learned counsels appearing for the petitioners have

submitted that the B. Tech degree in Electrical & Electronics is equivalent

to the B. Tech degree in Electrical. The learned counsels have placed heavy

reliance upon the decision rendered by the High Court at Delhi in Writ

Petition (C) No. 6100 of 2012, Ms. Nisha vs. Union of India & Ors. The

learned counsels have submitted that since the B. Tech degree in Electrical

& Electronics is equivalent to the B. Tech degree in Electrical, the opposite

parties were obliged to consider the candidature of the petitioners for

appointment to the post in question.

30. In the case of Ms Nisha (Supra) the High Court at Delhi has held that the B.

Tech degree in Electrical & Electronics of U.P. Technical University,

Uttrakhand was equivalent to the B. Tech degree in Electrical of U.P.

Technical University, Uttrakhand. After holding that the two degrees were

equivalent to each other, the High Court at Delhi issued a mandamus to the

respondents in the said case to proceed with the selection process pertaining

to the writ petitioners, keeping in view their merit position in the selection

list against the post to which they had applied for.

31. Sri Subhash Vidhyarthi, learned counsel for the opposite parties nos. 2 to 4,

on the other hand, has tried to distinguish the case of Ms Nisha by stating

that the matter before the High Court at Delhi, related to the State of

Uttrakhand. The learned counsel has taken us through the Syllabus and

Course contents of the two degrees prescribed by the U.P. Technical

University and has submitted there was a variation of 20% to 30% in the

Syllabus and Course contents of the two degrees of the U.P. Technical

University, Lucknow and as such, according to him the two degrees are not

equivalent as alleged by the learned counsels for the petitioners. He has

submitted that the two member committee constituted by the All India

Council for Technical Education, New Delhi had opined that the B. Tech

degree in Electrical & Electronics of U.P. Technical University, Lucknow

was not equivalent to the B. Tech degree in Electrical of U.P. Technical

University, Lucknow. He has further submitted that in case the Syllabus and

Course contents of the two degrees was the same, there was no need for the

Universities to run the same course under two different names for granting

two separate degrees. Sri Vidyarthi has submitted that in a catena of

decisions, the Apex Court has held that the matter pertaining to the

equivalence of degrees being an area of expert opinion should be left to the

experts and the Courts should not readily indulge in voyagerism. He has

submitted that it is only the experts alone who could opine upon the

equivalence of the two degrees. The learned counsel has submitted that even

if the High Court at Delhi had come to the conclusion that the two member

committee appointed by the AICTE had submitted the report mechanically

and the said report was based on extraneous and irrelevant considerations,

the High Court at Delhi should have struck down the report and should have

remanded the matter to the AICTE for appropriate action. The learned

counsel has submitted that it was neither the domain of the Court nor the

Court had the expertise to declare the two degrees equivalent.

32. Be that as it may.

33. From a perusal of the judgment rendered by the High Court at Delhi in the

case of Ms. Nisha (supra) we find that though the High Court at Delhi has

held that the B. Tech degree in Electrical & Electronics was equivalent to

the B. Tech degree in Electrical but that alone was not the reason why the

petitioners in the said case were directed to be considered for appointment.

We find that apart from holding that the two degrees under consideration

were equivalent, there were a number of ''other overwhelming reasons' for

allowing the writ petitioners of the said case to be considered for

appointment. The ''other overwhelming reasons' in the case of Ms Nisha

are to be found in paragraph nos. 21-28 and 30 of the said judgment and

they are being quoted below :

"21. It assumes importance to note that advertisements issued for

employment by the Indian Navy and the Indian Air Force treat B.

Tech ELECTRICAL AND ELECTRONICS equivalent to B. Tech

ELECTRICAL. All Public Sector Undertakings which employ

personnel versed and conversant with ELECTRICAL

ENGINEERING such as Hindustan Petroleum Corporation Ltd.,

Steel Authority of India Ltd., Bharat Heavy Electrical Ltd., National

Thermal Power Corporation Ltd. and Gas Authority of India Ltd.

also treat the two degrees as equivalent.

22. Surprisingly, when it comes to males, the instant advertisements

pursuant way to the lady petitioners have applied, would reveal that

both degrees i.e. B. Tech ELECTRICAL AND ELECTRONICS as

also B. Tech ELECTRICAL are listed as the eligible educational

qualification. As a matter of fact the original advertisement

published in January 20, 2012 made no distinction between males

and females as regards the degree and only the corrigendum issued

on February 11, 2012 did so, by which time many people had

applied online.

23. A very feeble attempt was made to justify retaining B. Tech

ELECTRICAL AND ELECTRONIC and B. Tech ELECTRIC as

equivalent degrees for men and different for women, by urging that

ELECTRICAL ENGINEERING covers subjects relating to

ELECTRICAL SUB SYSTEM AND CONTROL, an area of

knowledge imparted very minimal to the students having discipline

ELECTRONICS AND ELECTRICAL and thus employability for

the latter is minimal in peace areas. The argument was advanced to

justify retention of equivalence of the two subjects for males, who as

per the respondents would be deployed in operation areas and not

the females.

24. The justification is a simple ruse inasmuch we have noted

hereinabove that the degree course B. Tech ELECTRICAL AND

ELECTROINCS subsumes the entire course B. Tech ELECTRICAL

and teaches something more.

25. Now, the Air Force uses equal number of electrical

equipment and even the Indian navy does so. There was no

justification forth coming as to why said two branches of the Armed

Forces do not draw any such distinction.

26. It was then urged by the respondents that the petitioners could

not have even applied for the post inasmuch in the advertisements it

was clearly indicated as to what degree was treated as the essential

degree. It was urged that the writ petitioners, by submitting their

applications tried to over reach the advertisement inviting

applications.

27. As regards the writ petitioners who had the degree of B. Tech

in ELECTRICAL AND ELECTRONICS, we have already noted

above that the original advertisement made eligible even said degree

holders till the corrigendum was published in Employment News on

February 11, 2012. But, the web page of the site of the Indian Army,

which we accessed in Court at the hearing held on November 22,

2012, evidenced that the corrigendum was not even put on the

website. We did so in Court inasmuch as the writ petitioners

informed that when they accessed the website pursuant to the

advertisement dated January 20, 2012, notwithstanding they did so

after February 11, 2012, the website continued display the eligibility

qualifications as originally entered. Indeed, the position is as stated

by the petitioners.

28. The position which therefore emerges is that due to complete

identity in the course curriculum of the degrees B. Tech

INFORMATION TECHNOLOGY and B. Tech COMPUTER

SCIENCE and the degrees B. Tech INSTRUMENTATION AND

CONTROL and B. Tech ELECTRONIC AND

INSTRUMENTATION, even the experts panel constituted by

AICTE has opined equivalence and as regards B. Tech

ELECTRICAL AND ELECTRONICS AND B. Tech

ELECTRICAL, though the experts have opined to the contrary, we

find equivalence. The further position which emerges is that as

regards males, the Indian Army treats B. Tech ELECTRICAL AND

ELECTRONICS and B. Tech ELECTRICAL as equivalent degrees.

Further position emerges that the Indian Navy and the Indian Air

Force treats the two degrees as equivalent and so do all other Public

Sector Undertakings. The further position which emerges that all

writ petitioners succeeded with merit, and we highlight that the

young lady writ petitioners found themselves in the select list for 35

posts from amongst 11,000 canddiates; we presume that the slection

process was to test the knowledge in the field of ELECTRIAL

ENGINEERING and the success of the lady writ petitioners holding

degree in ELECTRIC AND ELECTRONIC ENGINEERING is

proof of what we have held herein above that the degree course

undertaken by them has subsumed within, the degree course in

ELECTRIC ENGINEERING.

29. ...........................

30. We note that learned counsel for the respondents had conceded

that the number of persons issued letters of appointment exceed

more than three times the vacancies which were advertised and the

reason is a shortage of officers in the Indian Army, and for which the

young petitioners who were present in Court had drawn our attention

to the newspaper report published on November 15, 2012 in the

daily newspaper 'The Pioneer' that the shortage of officers in the

Indian Army is 12,000; indeed learned counsel for the respondents

did not refute said position; meaning thereby that the induction of

the petitioners would not adversely affect the persons who have been

issued letters of appointment notwithstanding many of them being

lower in the merit position to the writ petitioners.

........."

34. Thus, it is apparent that in case of M/s Nisha (supra) the High Court at

Delhi, after holding that the B. Tech degree in Electrical & Electronics and

B. Tech degree in Electrical were equivalent, passed an order in favour of

the lady petitioners in the said case for the following reasons:

a. The advertisement issued for employment by the Indian

Navy and Indian Air Force treated the B. Tech Electrical &

Electronics equivalent to B. Tech Electrical.

b. For the male candidates for the same post both degrees i.e.

B. Tech Electrical & Electronics and B. Tech Electrical were listed

as eligible educational qualification.

c. Advertisement published on 20.01.2012 made no

distinction between males and females as regards the degree and

only the corrigendum issued on 11.02.2012 did so, by which time

many people had applied online.

d. Respondents in the said case failed to justify retaining B.

Tech Electrical & Electronics and B. Tech Electrical as equivalent

degrees for men and different for women.

e. The Corrigendum which was published in employment

News on February, 11, 2012 was not even put on the website of the

Indian Army till the date the matter was heard by the High Court at

Delhi.

f. There was shortage of officers in the Indian Army and as

such induction of the petitioners was not going to adversely affect

the persons who had been issued the letters of appointment.

35. The ''other overwhelming reasons' in the case of Ms. Nisha (supra), as

specified above, are conspicuously absent in the present case. Even if we

were to arrive at the conclusion that the B. Tech degree in Electrical &

Electronics and B. Tech degree in Electrical are equivalent, as strongly

urged by the learned counsel for the petitioners, we are unable to persuade

ourselves to pass an order in favour of the petitioners for more than one

reason enumerated hereinafter.

36. The statutory authority is entitled to frame statutory rules, terms and

conditions of the services and also the qualifications essential for holding a

particular post. It is the concerned authority and authority alone which can

take an ultimate decision. The Courts do not and cannot direct the employer

to prescribe a qualification for holding a particular post. This precisely is

the dictum of the Apex Court. In paragraphs 25, 26 & 27 of the case

reported in (2006) 8 SCC 42, Sanjay Kumar Manjul vs. Chairman,

UPSC & Ors. the Apex Court has held as under:-

"25. The statutory authority is entitled to frame statutory rules

laying down terms and conditions of service as also the

qualifications essential for holding a particular post. It is only

the authority concerned who can take ultimate decision therefor.

26. The jurisdiction of the superior courts, it is a trite law,

would be to interpret the rule and not to supplant or supplement

the same.

27. It is well-settled that the superior courts while exercising

their jurisdiction under Articles 226 or 32 of the Constitution of

India ordinarily do not direct an employer to prescribe a

qualification for holding a particular post."

37. Thus, for the post in question the Corporation alone is empowered to lay

down the required qualifications for appointment to the post in question.

The qualification prescribed under the Regulations, for the post in question

is a B. Tech degree in Electrical Engineering and that is also the

qualification mentioned in the advertisement dated 03.09.2013. In the

present case, neither the Regulations nor the advertisement is under

challenge. In these circumstances, this Court can only ensure that the

appointments are made strictly in accordance with the terms and conditions

of the advertisement.

38. In the case reported in (1990) 3 SCC 655, District Collector & Chairman,

Viziangaram & anr. vs. M. Tripura Sundari Devi, M. Tripura Sundari

Devi was appointed as a post graduate teacher in Hindi. Subsequently, at the

time of scrutiny of certificates it was found that she was not qualified as per

the advertisement and as such she was not allowed to join the services. The

action of the petitioners before the Apex Court in not permitting M. Tripura

Sundari Devi to join was upheld by the Apex Court. It was held that the

appointment had to be made strictly as per terms of the advertisement and in

case, the candidates who did not possess the qualification as mentioned in

the advertisement were permitted to participate in the selection process, it

would be a fraud with the Public and no Court should be a party to the

perpetuation of the fraudulent practice. Paragraph no. 6 of the said report

runs as follows:

"6. It must further be realised by all concerned that when an

advertisement mentions a particular qualification and an

appointment is made in disregard of the same, it is not a matter

only between the appointing authority and the appointee

concerned. The aggrieved are all those who had similar or

even better qualifications than the appointee or appointees but

who had not applied for the post because they did not possess

the qualifications mentioned in the advertisement. It amounts

to a fraud on public to appoint persons with inferior

qualifications in such circumstances unless it is clearly stated

that the qualifications are relaxable. No court should be a party

to the perpetuation of the fraudulent practice. We are afraid

that the Tribunal lost sight of this fact."

39. In a case reported in (2003) 3 SCC 541, P.M. Latha & Anr. vs. State of

Kerala & Ors. as per the advertisement the candidates having educational

qualification of Teachers Training Certificate (for short T.T.E.) were entitled

to compete for the selection and seek appointment on the post of Teachers in

Government Primary School. However, in the select list the B.Ed.

Candidates were also included. As a result of which the candidates

possessing the qualification of T.T.C. were excluded. Repelling the

arguments advanced on behalf of the successful candidates that B.Ed.

qualification was a higher qualification than T.T.C. and therefore, the B.Ed.

Candidates should be held to be eligible to compete for the said post, the

Apex Court in paragraph no. 13 of the said report has held as follows:

"13. Equity and law are twin brothers and law should be

applied and interpreted equitably but equity cannot over-ride

written or settled law. The division bench forgot that in

extending relief on equity to B.Ed. candidates who were

unqualified and yet allowed to compete and seek appointments

contrary to the terms of the advertisement, it is not redressing

the injustice caused to the appellants who were T.T.C.

candidates and would have secured a better position in the

Rank List to get appointment against the available vacancies,

had B.Ed. candidates been excluded from the selections. The

impugned judgment of the division bench is both illegal,

inequitable and patently unjust. The T.T.C. candidates before

us as appellants have been wrongly deprived of due chance of

selection and appointment. The impugned judgment of the

division bench, therefore, deserves to be set aside and of the

learned single judge restored."

40. Similarly, in the case reported in (2009) 4 SCC 555, Mohd. Sohrab Khan

vs. Aligarh Muslim University & Ors. the submission made on behalf of

the respondents in the said case that the Masters' degree in Industrial

Chemistry was as good as Masters degree in Chemistry for the post for

which the advertisement was issued and the person having Masters degree

in Industrial Chemistry was better suited for teaching the said subject was

not accepted by the Apex Court. It was held that the advertisement which

was issued for filling up the post of Lecturer in Chemistry could not have

been filled up by a person belonging to the subject of Industrial Chemistry

when the same having been specifically not mentioned in the advertisement

that a Masters Degree holder in the said subject would also be suitable for

being considered. The Apex Court observed that there could have been

intending candidates who would have applied for becoming candidate as

against the said advertised post, had they known and were informed through

advertisement that Industrial Chemistry is also one of the qualifications for

filling up the said post. Paragraph nos. 11, 12, 23, 24 and 26 of the said case

being relevant are being reproduced below:

"11. It was also submitted that the Masters Degree in Industrial

Chemistry is as good as Masters Degree in Chemistry for the

post for which the advertisement was issued and that a person

having Masters Degree in Industrial Chemistry was better suited

for teaching the said subject.

12. Learned counsel also invited our attention to the course

contents which the teacher appointed to the said post was

required to teach. Relying on the same, he submitted that a

candidate having Masters Degree in Industrial Chemistry would

have been better suited to teach the said subjects constituting the

course contents.

23. The post advertised was meant for a person belonging to the

pure Chemistry Department for if it was otherwise, then it would

have been so mentioned in the advertisement itself that a person

holding a Masters Degree in Industrial Chemistry should only

apply or that a person holding such a degree could also apply

alongwith other persons. It was not so mentioned in the

advertisement and therefore, except for Merajuddin Ahmad, no

other degree holder in Industrial Chemistry had applied for

becoming a candidate as against the aforesaid post.

24. According to us, the Selection Committee as also the

University changed the rule in the midstream which was not

permissible. The University can always have a person as a

Lecturer in a particular discipline that it desires to have, but the

same must be specifically stated in the advertisement itself, so

that there is no confusion and all persons who could be

intending candidates, should know as to what is the subject

which the person is required to teach and what essential

qualification the person must possess to be suitable for making

application for filling up the said post.

26. The advertisement which was issued for filling up the post

of Lecturer in Chemistry could not have been filled up by a

person belonging to the subject of Industrial Chemistry when the

same having been specifically not mentioned in the

advertisement that a Masters Degree holder in the said subject

would also be suitable for being considered. There could have

been intending candidates who would have applied for

becoming candidate as against the said advertised post, had they

known and were informed through advertisement that Industrial

Chemistry is also one of the qualifications for filling up the said

post."

41. Sri Subhash Vidyarthi, has submitted that after the advertisement dated

17.12.2012 was published, a large number of candidates possessing B. Tech

degree in Electrical & Electronics approached the help desk set up by the

opposite party nos. 2 to 4 to enquire as to whether they were eligible for

appointment on the post in question. All of them were replied in the

negative. One such e-mail and the reply given by the opposite party nos. 2 to

4 (annexed along with the counter affidavit) is being reproduced herein

below:

    GMail                         UPPCL Upsec 
 
    by Google

____________________________________________________________

ELEGIBILITY CRITERIA

2 messages

____________________________________________________________

amrita shrotiya To: [email protected]

I COMPLETED MY BACHELOR IN TECHNOLOGY (B.TECH) IN

ELECTRICAL AND ELECTRONICS BRANCH. I WANT TO APPLY FOR

ASSISTANT ENGINEER (ELECTRICAL) POST PLEASE TELL ME

BEING AN ELECTRICAL AND ELECTRONICS BTECH PASSED

STUDENT, M I ELIGIBLE FOR THIS POST?

KINDLY REPLY ME AS SOON AS POSSIBLE

REGARDS

AMRITA SHROTRIA

____________________________________________________________

UPPCL Upsec Tue, Oct 22, 2013 at 2.30 PM

"amrita shrotiya

Dear candidate,

You are not eligible for the post.

[Quoted text hidden]

Regards

Admin

42. Thus, there is no element of doubt, that there were intending candidates,

possessing B. Tech degree in Electrical & Electronics, who would have

applied for appointment to the post in question, had they known or were

informed through advertisement that the candidates possessing B. Tech

degree in Electrical & Electronics were also eligible for appointment on the

post in question. In the circumstances, the post in question cannot be

ordered to be filled up by candidates having B. Tech degree in Electrical &

Electronics. In case such a direction is issued, it would not only be a fraud

on the public but it would also deprive a large number of candidates

possessing B. Tech degree in Electrical, who are candidates for appointment

on the post in question, due chance of selection and appointment. This court

cannot be a party to any fraud.

43. It is neither the case of the petitioners nor there is any evidence on record to

establish that the B. Tech degree in Electrical & Electronics possessed by

the petitioners has been recognized to be equivalent to the B. Tech degree in

Electrical by the State Government.

44. It is so well settled that the appointment has to be made strictly in

accordance with the qualification prescribed in the advertisement.

Admittedly, the petitioners do not possess the degree of B. Tech Electrical as

prescribed in the advertisement and are thus not qualified for appointment to

the post in question. Even if, it is held that the qualification of B. Tech

Electrical and Electronics is equivalent to B. Tech Electrical as has been

canvassed vehemently on behalf of the petitioners , the petitioners cannot be

permitted to participate in the selection on the simple reasoning that a large

number of the candidates possessing the degree of B. Tech Electrical and

Electronics like the petitioners must not have applied in view of the terms of

the advertisement. Merely because the petitioners have approached this

Court, the opposite parties cannot be directed to consider the candidature of

the petitioners for the post in question. In case it is done it would be fraud

on public which cannot be perpetuated by this Court.

45. The answer to the second submission of the learned counsels for the

petitioner is also in the negative.

46. This brings us to the third and the last submission made on behalf of the

petitioners.

47. Complete answer to the third and last submission made by the learned

counsel for the petitioners is to be found in paragraph 8 of a case reported in

(2003) 3 SCC 548, Yogesh Kumar & Ors. vs. Govt. of NCT, Delhi & Ors.

Paragraph 8 of the said report is reproduced below:

"8. This last argument advanced also does not impress us at all.

Recruitment to Public Services should be held strictly in

accordance with the terms of advertisement and the recruitment

rules, if any. Deviation from the Rules allows entry to ineligible

persons and deprives many others who could have competed for

the post. Merely because in the past some deviation and

departure was made in considering the B.Ed. candidates and we

are told that was so done because of the paucity of TTC

candidates, we cannot allow a patent illegality to continue. The

recruitment authorities were well aware that candidates with

qualification of TTC and B.Ed. are available yet they chose to

restrict entry for appointment only to TTC pass candidates. It is

open to the recruiting authorities to evolve a policy of

recruitment and to decide the source from which the

recruitment is to be made. So far as B.Ed. qualification is

concerned, in the connected appeals [CA No. 1726-28 of 2001]

arising from Kerala which are heard with this appeal, we have

already taken the view that B.Ed. qualification cannot be treated

as a qualification higher than TTC because the natures of

training imparted for grant of certificate and degree are totally

different and between them there is no parity whatsoever. It is

projected before us that presently more candidates available for

recruitment to primary school are from B.Ed. category and very

few from TTC category. Whether for the aforesaid reasons,

B.Ed. qualification can also be prescribed for primary teachers

is a question to be considered by the authorities concerned but

we cannot consider B.Ed. candidates for the present vacancies

advertised as eligible. In our view, the division bench of the

Delhi High Court was fully justified in coming to the

conclusion that B.Ed. candidates were rightly excluded by the

authorities from selection and appointment as primary teachers.

We make it clear that we are not called upon to express any

opinion on any B.Ed. Candidates appointed as primary teachers

pursuant to advertisements in the past and our decision is

confined only to the advertisement which was under challenge

before the High Court and in this appeal."