U.P. Rajya Vidyut Utpadan Sewa ... vs Deepak Kumar Gupta And 2 Others
2022 Latest Caselaw 1441 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 172 of 2022
 

 
Appellant :- U.P. Rajya Vidyut Utpadan Sewa Aayog Thru. Its Secy.
 
Respondent :- Deepak Kumar Gupta And 2 Others
 
Counsel for Appellant :- Vibhanshu Srivastava
 
Counsel for Respondent :- Dr. Pooja Singh,C.S.C.,Puneet Chandra
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Sri Vibhanshu Srivastava, learned counsel appearing for the appellant, Dr. Pooja Singh, learned counsel for respondent no.1, learned State Counsel representing respondent no.2 and Sri Puneet Chandra, learned counsel representing respondent no.3.

2. We have also perused the records available before us on the Special Appeal.

3. By means of this Special Appeal instituted under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 the appellant seeks to impeach the judgement and order dated 24.03.2022 passed by learned Single Judge, whereby the writ petition filed by respondent no.1, namely Writ-A No. 1610 of 2022 has been disposed off with the direction to the Selection Board to consider his candidature for recruitment on the post of  Technical Grade-II (Electrician) within a period of six weeks.

4. Submission of learned counsel appearing for the appellant is that respondent no.1 did not fulfill the requisite qualification for appointment to the post in question inasmuch as that though the requisite qualification was that the candidate must have passed High School Examination with Science and Mathematics subjects conducted by the Uttar Pradesh High School and Intermediate Education Board or any equivalent examination and further that the candidate should have CCC Certificate, whereas though the respondent no.1 has passed High School Examination conducted by the Board, however he has not passed the said examination in Mathematics as an individual subject. In this view, the submission is that the respondent no.1 was not fulfilling the eligibility for being considered for appointment to the post in question and hence the learned Single Judge while issuing direction by means of the judgement and order under appeal for consideration of the candidature of respondent no.1, has erred in law.

5. On the other hand Dr. Pooja Singh, learned counsel appearing for respondent no.1 has submitted that qualification required as per the advertisement was that the candidate should have passed High School Examination conducted by the Board with Mathematics and Science subjects and further that the eligibility conditions do not contain any such prescription that the candidate should have passed in the individual subjects of Mathematics and Science as well. It has thus been submitted that the Selection Board, in fact, misconstrued the eligibility requirements and has wrongly rejected the candidature of respondent no.1, which wrong has been corrected by learned Single Judge by passing the judgment and order under appeal and thus the same does not require any interference by this Court and the Special Appeal is liable to be dismissed as its threshold.

6. Sri Punit Chandra, learned counsel appearing for U.P. Rajya Vidyut Utpadan Nigam Limited has supported the submissions made by learned counsel representing the Selection Board-appellant and has argued that the true purport of the eligibility condition as prescribed in the advertisement is that the candidate seeking appointment to the post in question should not only have passed High School Examination overall but should have passed in Mathematics and Science individually as well.

7. We have given our thoughtful consideration to the respective submissions made by learned counsel representing the rival parties.

8. For deciding the issue which emerges before us in this case, the qualification as prescribed in the advertisement needs to be noted which is extracted hereinbelow:-

"(g) Technician Grade-II (Post code-10, 11, 12):

VsfDuf'k;u Js.kh&f}rh; ¼bysfDVªf'k;u½ in gsrq % ek/;fed f'k{kk ifj"kn] m0iz0 dh gkbZLdwy foKku ,oa xf.kr fo"k; ds lkFk ;k led{k ijh{kk mRrh.kZ rFkk bysDVªhf'k;u VªsM esa vf[ky Hkkjrh;@jkT; O;olkf;d izek.k i=A DOEACC ¼orZeku esa NIELIT½ }kjk iznRr 80 ?k.Vs dk Course On Computer Concept (CCC) dk izek.k i= vfHkys[kh; ijh{k.k ds le; izLrqr djuk vfuok;Z gksxkA

VsfDuf'k;u Js.kh&f}rh; ¼fQVj½ in gsrq % ek/;fed f'k{kk ifj"kn] m0iz0 dh gkbZ Ldwy foKku ,oa xf.kr fo"k; ds lkFk ;k led{k ijh{kk mRrh.kZ rFkk fQVj VªsM esa vf[ky Hkkjrh;@jkT; O;olkf;d izek.k i=A DOEACC ¼orZeku esa NIELIT½ }kjk iznRr 80 ?k.Vs dk Course On Computer Concept (CCC) dk izek.k i= vfHkys[kh; ijh{k.k ds le; izLrqr djuk vfuok;Z gksxkA

VsfDuf'k;u Js.kh&f}rh; ¼bUlVzwesUV½ in gsrq % ek/;fed f'k{kk ifj"kn] m0iz0 dh gkbZ Ldwy foKku ,oa xf.kr fo"k; ds lkFk ;k led{k ijh{kk mRrh.kZ rFkk [email protected]ªkfuDl VªsM esa vf[ky Hkkjrh;@jkT; O;olkf;d izek.k i=A DOEACC ¼orZeku esa NIELIT½ }kjk iznRr 80

?k.Vs dk Course On Computer Concept (CCC) dk izek.k i= vfHkys[kh; ijh{k.k ds le; izLrqr djuk vfuok;Z gksxkA

uksV % ¼i½ nwjLFk f'k{kk ek/;e ls izkIr izek.k i= ,oa vuqHko ds vk/kkj ij izkIr izek.k i= vFkok rduhdh izek.k i= ekU; ugha gksxsaA

¼ii½ vkosnu ds le; vkbZ0Vh0vkbZ0 ijh{kk mRrh.kZ gksuk pkfg, rFkk vH;FkhZ ds ikl ,[email protected],u0lh0oh0Vh0 ls fuxZr vUrfje jk"Vªh; O;olk;f;d izek.k [email protected] i= gksuk vfuok;Z gSA**

9. There is no dispute that the eligibility qualification as given in the advertisement, which has been quoted above, is the same as described in the Service Regulations governing the conditions of service of the incumbents on the post of Technician Grade-II (Electrician) in U.P. Rajya Vidyut Utpadan Nigam Limited. The bone of contention between the appellant- Selection Board  and respondent no.1 hinges around the interpretation of the phrase occurring in the eligibility condition namely, "ek/;fed f'k{kk ifj"kn mRrj izns'k dh gkbZLdwy foKku ,oa xf.kr fo"k; ds lkFk ;k led{k ijh{kk mRrh.kZ gksA**

10. If the said phrase is translated in simple words in English, in our opinion, that would mean, "the candidate should have passed High School Examination with Mathematics and Science Subjects conducted by Uttar Pradesh Board of High School and Intermediate or any equivalent examination". The interpretation sought to be given by the respondent no.1 to the said phrase is that the candidate should have passed the High School Examination conducted by the Board and should have appeared in the said Examination in the subjects including the subjects of Mathematics and Science. However, the requirement is not that along with passing the High School Examination overall, the candidate should have passed individually in the subjects of Mathematics and Science as well. On the other hand learned counsel appearing for the appellant-Selection Board submits that the correct interpretation of the eligibility condition is that the candidate should not only have passed overall in the Board Examination but should also have passed in the individual subjects of Mathematics and Science.

11. So far as the facts of the case are concerned there is no dispute that the respondent no.1 has passed his High School Examination conducted by Board of High School and Intermediate Education in the year 2011. The certificate-cum-marksheet of his High School is on record according to which he has been declared "Pass" but had secured only 006 marks out of 100 marks in the Mathematics subject. The grade awarded against the marks obtained by respondent no.1 in his High School Examination against each subject has also been shown in his certificate issued by the Board according to which he has secured "E2" grade in Mathematics. There is no indication in the marksheet that the respondent no.1 was given grace marks for the purposes of declaring him pass in the individual subject of Mathematics. In the overall result, as declared by the Board, he is passed in his High School Examination.

12. The certificate-cum-marksheet issued by the Board also contains certain instructions. Instruction 5 is extracted hereinbelow:-

"A Candidate has to acquire a minimum "D" grade in all the passed subjects, candidate acquiring grade "E1" and "E2" will be treated as failed in that particular subject."

13. The instruction 6 stipulates that a Candidate who has failed in one subject will be able to participate in the Improvement Examination. Instruction 6 is also extracted hereinbelow:-

"6. A Candidate who has failed in one subject will be eligible for the "IMPROVEMENT EXAM which will be held in the month of July. If such candidate wants to appear in IMPROVEMENT EXAM he/she will have to fill up a form in due time along with the required fees."

14. Thus as per the High School and Intermediate Education Board a candidate who secures "E1" or "E2" grade in a particular subject is to be treated to have failed in that particular subject. The mark-sheet of the respondent no.1 reveals that there can be a situation where overall result of a candidate appearing in the Board's Examination will show him to have passed the High School Examination, however, even after having passed the High School Examination overall, he can still fail in a particular subject in a situation where such a candidate acquires grade "E1" or "E2". The certificate-cum-marksheet of respondent no.1 shows that though he has been declared to have passed in the High School Examination, however, he having grade "E2" will be treated to have failed in Mathematics subject.

15. In terms of instructions 6 as extracted above, the respondent no.1 had the opportunity to have participated/ appeared in the improvement examination which opportunity, unfortunately, the respondent no.1 did not avail. Thus the factual situation is that the respondent no.1 appeared in the High School Examination conducted by the Board where he has been declared passed, however in the subject of Mathematics he is to be treated to have failed.

16. Learned counsel representing the respondent no.1 places reliance upon a Division Bench Judgement of this Court dated 12.01.2017, rendered in Special Appeal No. 9 of 2017 (Vidyut Sewa Ayog U.P. Power Corporation Ltd. Thr. Chairman & Ors Vs. Jitendra Kumar Mishra). When we consider the said judgement what we notice is that the reasoning given in the said judgement is that once a candidate has been declared passed by U.P. Board of High School and Intermediate Examination, then such a candidate has no further opportunity of improving upon his marks in the same subjects by re-appearing in the same examinations. The Division Bench in the said case further observed that certification of such a candidate of having passed the High School Examination therefore becomes final and that is also evident by the fact that the candidate thereafter pursued his studies further and passed the Intermediate Examination. We also notice that in the case of Jitendra Kumar Mishra (Supra) the candidate concerned was declared passed after having been given the grace marks, whereas in this case the respondent no.1 has not been given grace marks in Mathematics subject for being declared to have passed in Mathematics. When we further examine the judgement in the case of Jitendra Kumar Mishra (Supra) what we find is that in the said case no opportunity was available to the candidate concerned, of improving upon his marks in the subject concerned, whereas instruction no.6, quoted above, which is part of the certificate-cum-marksheet of High School Examination of respondent no.1 clearly shows that in this case such opportunity was available to respondent no.1 for improvement in his Mathematics paper. In light of this discussion we find that facts of the case of Jitendra Kumar Mishra (Supra) are distinguishable from the facts of the present case. 

17. Learned counsel representing respondent no.1 further relies upon a very elaborate judgement of this Court, dated 07.10.2017, rendered by learned Single Judge in a bunch of Writ Petitions, leading writ petition being Writ A No. 58918 of 2016 (Suneel Kumar and Ors Vs. State of U.P. and Ors.).

18. The facts of the said case are also distinguishable as is apparent from a perusal of the said judgement wherein it has been observed that it is also an undisputed fact that petitioners had been declared passed in the High School Examination after appearing in six subjects and further that each petitioner was declared passed in that examination with clear pass marks in five subjects and with grace marks either in Mathematics or in Science, which is the sixth subject in the examination. Thus in the case of Suneel Kumar and Ors. (Supra) also the facts were that candidates were asserting that they were eligible having been declared to have passed even in Mathematics subject albeit with grant of grace marks. As discussed above in the instant case no grace marks were given to respondent no.1 for treating him to have passed in the Mathematics subject individually. As per the instruction no.5 accompanying the certificate-cum-marksheet of the respondent no.1 of his High School Examination issued by the Board, a candidate is to be treated as failed in a particular subject whereas he acquires grade "E1" or "E2". Admittedly, so far as Mathematics subject is concerned, the respondent no.1 was awarded "E2" grade as is apparent from a perusal of his mark-sheet. Thus in terms of the instructions of the Board the respondent no.1 is to be treated to have failed in Mathematics. 

19. As to the actual purport of the stipulation made in eligibility qualification for the post in question as published in the advertisement we may only observe that it is the Employer or the Selection Board which have the competence to clearly interpret such provisions which prescribe eligibility conditions in the form of educational qualification or otherwise. Reference in this context may be made to a judgement rendered by Hon'ble Supreme Court on 03.05.2019 in Civil Appeal No. 4597 of 2019 (The Maharastra Public Service Commission Through Its Secretary Vs. Sandeep Shriram Warade and Ors). In the said judgement Hon'ble Supreme Court has clearly held that qualification for appointment to a post are for the Employer to decide. It has further been observed that it is the Employer who may prescribe additional or desirable qualification including any grant of preference. Further observation in the said judgement is that Employer is the best suited to decide requirements that a candidate should possess according to its needs and nature of work. The relevant portion of the judgement of the said case is extracted hereinbelow:-

"10. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re­writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. 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."

20. While we are called upon to interpret the actual puport of the educational qualification required for fulfilling the eligibility for appointment to the post  in question what we need in bear in mind is that the said prescriptions as mentioned in the advertisement are the same which are available in the Service Regulations governing the conditions of the service for the incumbents holding the post of Technician Grade-II (Electrician). What we also need to bear in mind is that the Regulations have been framed by the U.P. Rajya Vidyut Utpadan Nigam Limited which is the Employer in this case. The appellant is the Selection Body created for the purposes of undertaking the task of making selection etc. As to what exact meaning is to be derived from or given to the stipulation of eligibility condition would primarily depend on the intention of the Employer or thereafter of the Selection Board which comprise of experts. The Employer in fact is the author in this case of the eligibility condition and according to U.P. Rajya Vidyut Utpadan Nigam Limited the eligibility condition prescribed would mean that the candidate should have not only passed his High School Examination overall but should have passed the Mathematics and Science subjects individually as well.

21. Having regard to the law laid down by Hon'ble Supreme Court in the case of Sandeep Shriram Warade (Supra) and also taking into account the submissions made by learned counsels for the parties , we do not have any reason not to accept the submissions made by learned counsel representing Uttar Pradesh Vidyut Vitran Nigam Limited as also by learned counsel for the appellant- Selection Board so far as interpretation of the eligibility condition is concerned. We thus hold that the eligibility condition as prescribed in the advertisement for the appointment to the post in question would mean that a candidate would be eligible to participate in the selection only once he has not only passed his High School Examination overall but has also passed in the Mathematics and Science subjection individually as well.

22. At this juncture, learned counsel for respondent no.1 has attempted to make submission that after passing his High School Examination the respondent no.1 had even passed his Intermediate Examination with Mathematics and has even been declared successful in the written examination conducted by the Selection Board and hence his eligibility-cum-suitability has been tested and in such such a situation his candidature ought not have been cancelled. The said submission appears very attractive but only to be rejected for the reasons that the eligibility condition has to be construed strictly as per the stipulation made in the advertisement and accordingly, as to whether a particular candidate fulfils the eligibility condition or not has to be seen in terms of the requirement of the advertisement and not on the basis of the fact that a particular candidate has passed any higher examination or has even been declare successful in the written examination for selection held for appointment to the post in question. If a candidate lacks the basic eligibility, his candidature cannot be considered in any circumstance unless the Employer or the Selection Board has been vested with some power or authority to waive such eligibility condition in case of any specific case. 

23. For the reasons aforesaid, we do not find ourselves in agreement of the judgement and order passed by learned Single Judge dated 24.03.2022 in Writ A No. 1610 of 2022. The Special Appeal is thus allowed and judgement and order dated 24.03.2022 passed in Writ A No. 1610 of 2022 is hereby set aside.

24. There is no order as to costs.

Order Date :- 26.4.2022

Abhishek Singh