Sanapala V.L.N. Uday Kumar, vs State Of Andhra Pradesh
2021 Latest Caselaw 1136 AP

      IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI


                      W.P.No.4259 OF 2021

Between:

  1. Sanapala VLN Uday Kumar
  2. Bonu Manjula
                                                    ... Petitioners
                                and
The State of Andhra Pradesh rep by
Its Principal Secretary
Higher Education Department and another.
                                                   ... Respondents

JUDGMENT PRONOUNCED ON: 25th February, 2021.

THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY :

 1    Whether Reporters of Local newspapers    :
      may be allowed to see the Judgment?



 2    Whether the copies of judgment may be    :
      marked to Law Reports/Journals?



 3    Whether Their Lordship wish to see the   :
      fair copy of the Judgment?

_________________________________________ JUSTICE M.SATYANARAYANA MURTHY

* THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

+ WRIT PETITION No.4259 OF 2021

% 25-02-2021

# Sanapala VLN Uday Kumar and another

... Petitioners vs.

$ 1. The State of Andhra Pradesh Rep by its Principal Secretary Higher Education Department, and another.

                                             ...       Respondents



!Counsel for the Petitioner              : Sri Ravi Kondaveeti

^Counsel for the Respondents : G.P. for Higher Education

<Gist :

>Head Note :

? Cases referred :

1. (2009) 7 Supreme Court Cases 647

2. (2018) 3 Supreme Court Cases 55

3. (2007) 9 Supreme Court Cases 337

4. 2020 LawSuit (SC) 639

5. 2001 LawSuit (AP) 403

6. Civil Appeal No(s). 4597 of 2019

7. Civil Appeal Nos.2250-2252 of 2020

8. Civil Appeal No.4384 of 2009 dt 16.07.2009

9. 1999(3)SLR372

10. AIR 1959 SC 896

11. AIR 1991 SC 1933

12. AIR 1989 SC 989

13. AIR 1981 SC 411

14. (1967)ILLJ698SC

15. [1977]2SCR28

16. AIR 1989 SC 1133

17. 1961CriLJ773

18. [1981]2SCR742

19. AIR 1988 SC 2255

20. [2001]2SCR927

21. [2001]3SCR641

22. AIR1997SC1446

23. [2001]252ITR1(SC)

24. 2016 (1) SCC 454

25. (2019) 8 Supreme Court Cases 67

26. (2016) 1 Supreme Court Cases 454

27. (2017) 11 Supreme Court Cases 521

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION No.4259 OF 2021

ORDER:-

This writ petition is filed under Article 226 of the

Constitution of India seeking the following relief:

"......pleased to issue a writ, order or direction, more particularly one in the nature of writ of Mandamus, declaring the action of the Respondents in not conducting interview to the petitioners and not considering their cases for appointment to the post of Lecturer in Political Science in pursuance of Notification No 26/2018 dated 31.12.2018 issued by the 2nd Respondent on the ground that they do not possess undergraduate degree in the relevant subject is wholly illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India and consequently declare that the petitioners are entitled for consideration of their candidature for appointment to the post of Lecturer in Political Science without insisting undergraduate degree certificate in the relevant subject and pass such other order or orders ....."

2. The facts of the case in brief are that the 1st petitioner

completed his post graduate and joined in Andhra University to

pursue Ph.D (Full time). The 1st petitioner obtained Ph.D degree in

Public Administration from Department of Political Science and

Public Administration, Andhra University. The 2nd petitioner

acquired Post graduation in M.A. Public Administration from

Andhra University. She also completed M.A in Political Science

from IGNOU in the year 2016. Presently she is pursuing Ph.D in

Political Science in Andhra University.

The 2nd respondent issued a notification calling for

applications from the interested candidates for the post of Lecturer

in Degree colleges in A.P. Collegiate Education Service and in

response to the notification, the petitioners submitted their

applications for appointment to the post of Lecturer in Political

Science. The 2nd respondent on 11.01.2019 issued Web Note

informing that the candidates who possess higher qualification

than the prescribed qualification shall also be considered for

selection along with the candidates who possessed prescribed

qualifications. In pursuance of the above Web Note, the petitioners

applied for the post of Lecturer in Political Science and also for the

post of Lecturer in Commerce. The 2nd petitioner applied for the

post of Lecturer in Political Science. Both are qualified for

interview for the post of Lecturer in Political Science and call

letters were also issued calling these petitioners for interview on

12.02.2021 along with relevant certificates. Accordingly, both the

petitioners attended to interview on 12.02.2021 and produced

relevant certificates pertaining to the qualification in the office of

the 2nd respondent. The 2nd respondent verified all the original

certificates submitted by these petitioners and after verification of

their certificates they orally informed the petitioners that they are

not qualified to appear for interview as they did not possess under

graduate degree in the relevant subject i.e., Political Science or in

Public Administration and therefore they were not allowed to

participate in the interview process.

The specific contention of the petitioners is that as per Rule

8 of A.P. Collegiate Education Service Rules issued in

G.O.Ms.No.47, Higher Education (C.E.I.1) Department, dated

14.05.2007 for appointment to the post of Lecturer in Degree

college by direct recruitment (i) one should have good academic

record with a minimum 55% marks or an equivalent grade of B in

the 7 point scale with letter grades O, A, B, C, D, E & F at Master's

Degree level, in the relevant subject obtained from the Universities

recognized in India and (ii) should have passed National Eligibility

Test (NET) for Lecturer conducted by UGC, CSIR, or similar tests

accredited by the UGC or SLET conducted by APPSC.

It is also further contended that similar qualifications as

prescribed by the above said rules as incorporated in the above

said Notification dated 31.12.2018 issued by the 2nd respondent,

as the petitioners were qualified possessing Master Degree in

relevant subject have applied to the posts in relevant subjects but

the candidature of these petitioners was not considered for

interview on the ground that they did not possess under graduate

degree in the relevant subject i.e., Political Science/Public

Administration and thereby they are disqualified for consideration

is contrary to the statutory rules.

It is also further contended that the respondents insisting

the petitioners to produce under graduate degree certificates in

relevant subject is contrary to the rules prescribed in

G.O.Ms.No.47 Higher Education Department dated 14.05.2007

and thereby notification issued by the 2nd respondent incorporated

a new clause through Lr.No.APSCHE/ums-1035/Clarification-

equiv-Qualifications/2018, dated 03.07.2018 by which they have

prescribed qualification in Under Graduate Level also. However,

Rules framed under Article 309 of the Constitution of India

prescribed the qualification only at Master's Degree Level. The

respondents cannot issue circulars contrary to the rules passed

under Article 309. The said circular said to have been issued by

the 2nd respondent is only executive instructions. It is well settled

law that executive instructions cannot override the statutory rules.

Similarly situated persons who have not studied relevant subjects

at graduation level were given appointments by duly considering

their post graduation degree in the relevant subject. But in the

case of the petitioners, the 2nd respondent did not permit the

petitioners to participate in the interview as the petitioners did not

possess qualification in under graduate degree in the relevant

subject and refusal to interview these petitioners, on the said

ground is illegal and in violation of Rules farmed under Article 309

of Constitution of India and thereby requested to issue a direction

to the respondents to declare the notification to the extent of

amending portion, as illegal, arbitrary and consequently direct the

respondents to permit the petitioners to appear for the interview

and consider for appointment to the post in relevant subject.

3. The respondents did not file their counter, but submitted

their arguments at length.

4. During hearing, Mr Ravi Kondaveeti, learned counsel for

the petitioners mainly demonstrated that the rules prescribed

certain qualifications for appointment of Lecturer in relevant

subject. Issue of any circular, more particularly, prescribing

qualification in under graduate level in the relevant subject is

invalid and it will not override the statutory rule vide G.O.Ms.No.47

Higher Education Department dated 14.05.2007. On this ground

alone, the notification to the extent of prescribing qualification in

the under graduate level in the relevant subject is illegal.

5. In support of his contention, he placed reliance on the

judgment of the Hon'ble Apex Court reported in State of

Uttaranchal Versus Alok Sharma and others1, so also Ashish

(2009) 7 Supreme Court Cases 647

Kumar Versus State of Uttar Pradesh and others2 and Punjab

State Warehousing Corporation, Chandigarh Versus Manmohan

Singh and another3.

6. On the strength of the principles laid down in the above

three judgments, requested to declare new clause dated

30.07.2018 while declaring the action of the respondents in not

permitting these petitioners to appear for interview as illegal and

arbitrary and consequently direct the 2nd respondent to permit

these petitioners to appear for the interview for the selection for the

post of Lecturers in relevant subject.

7. Sri Addanki Ramachandra Murthy, learned Standing

counsel for APPSC contended that the petitioners accepted the

terms and conditions of notifications and appeared for the

examination, cannot now contend that the notification is legal and

they waived their right to question the validity of condition in the

notification and thereby the petitioners are not entitled to claim

any relief in the writ petition, that apart the petitioners did not

possess requisite qualification at the under graduate level in the

relevant subject as incorporated in terms of Lr.No.APSCHE/ums-

1035/Clarification-equiv-Qualifications/2018, dated 03.07.2018.

Consequently, denial of opportunity to participate in the interview

to these petitioners is not legal or arbitrary and thereby the

petition is liable to be dismissed at the stage of admission itself

and requested to dismiss this writ petition.

8. Whereas, the learned Government Pleader for Services-III

while supporting the action of the respondents placed reliance on

(2018) 3 Supreme Court Cases 55

(2007) 9 Supreme Court Cases 337

the judgment of Hon'ble Apex Court in Anand Yadav & Ors V/s

State of Uttar Pradesh & Others4 and in District Collector,

Anantapur v/s K Sujatha5 and also judgment of Hon'ble Apex

Court in The Maharashtra Public Service Commission through

its Secretary Versus Sandeep Shriram Warade and others6 and

also the judgment in Dr Thingujam Achouba Singh & Ors.,

Versus Dr H.Nabachandra Singh & Ors. etc.,7. On the strength

of these principles, he requested to dismiss the writ petition filed

by the petitioners.

9. Considering the rival contentions and perusing the

material available on record, the point that arisen for consideration

in this writ petition is:

Whether incorporation of clause as prescribed qualification that the candidate must possess a degree in relevant subject by Lr.No.APSCHE/ums-1035/Clarification- equiv-Qualifications/2018, dated 03.07.2018 and in the notification as annexure-III without amending the Rules vide G.O.Ms.No.47 Higher Education (CEI1) Department dated 14.05.2007 for appointment to the post of Lecturer in degree college by direct recruitment is legal and valid? if not liable to be set aside ?

POINT :

10. Admittedly, the notification was issued by the 2nd

respondent for recruiting the candidates for the post of Lecturers

specified vide Notification No.26/2018, dated 31.12.2018 in

different fields. As per notification, the prescribed qualification for

appointment to the post of Lecturer is prescribed in para-3 of the

2020 LawSuit (SC) 639

2001 LawSuit (AP) 403

Civil Appeal No(s). 4597 of 2019

Civil Appeal Nos.2250-2252 of 2020

notification in the present writ petition, which is extracted

hereunder:

Para-3 : EDUCATIONAL QUALFIICATIONS:

A candidate should possess the academic qualifications and

experience including practical experience prescribed, if any, for the

post on the date of the notification for direct recruitment issued by

the concerned recruiting agency.

Name     of   the Educational qualifications
post
                   i) Good academic record with a minimum of 55%

marks or an equivalent Grade of B in the 7 point scale with letter grades O, A, B, C, D, E & F at the Masters Degree level, in the relevant subject, obtained from the Universities recognized in India.

ii) Should have passed National Eligibility Test (NET) for lecturers conducted by UGC, CSIR or similar tests accredited by the UGC or SLET conducted by the Osmania University in terms of G.O.ms.No.19, Higher Education (CE.I-1) Department, dated 24.02.2011 and by Andhra University, Visakhapatnam in terms of G.O.ms.No.57, Higher Education (CE.I-1) department dated 19.12.2014.

Lecturer in N.B.: 1. A relaxation of 5% marks may be provided Government (from 55% to 50% of marks) at the Master's Level for Degree colleges the SC/ST/PH (as per G.O.Ms.No.91, Higher in A.P. Collegiate Education (CE.I.1) Department dated 08.09.2004) education service category.

2. A relaxation of 5% marks may be provided (from 55% to 50% of marks) to the Ph.D., Degree holders who have passed their Master's Degree prior to 19.09.1991.

3. "NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in government Degree Colleges".

Provided, however, that candidates who are or have been awarded Ph.D degree in compliance of the University Grants Commission (minimum standards and procedure for award of Ph.D Degree) Regulations, 2009 shall be exempted from the requirements of the minimum eligibility condition of NET/SLET for recruitments and appointment of Lecturers in Government Degree Colleges. (As per G.O.Ms.No.47 Higher Education (CE.I-1) Department, dated 14.05.2007 read with G.O.Ms.No.128 Higher Education (CE.I-1) Department, dated 24.08.2010.

11. At the end and below the table in Notification, a specific

note is mentioned as follows:

"Note : Please see Annexure-III for subject equivalency particulars."

12. In Annexure-III, the subject equivalent particulars are

mentioned in Sl.No.8 - Lecturers in Political Science, the

qualification at PG level is mentioned as "M.A. (Political Science),

M.A. Public Administration" in Column No.3. However, in the

Column No.4 - Qualification in Under Graduate Level is mentioned

as "same subject in Under Graduate Level as clarified by

APSCHE vide Lr.No.APSCHE/ums-1035/Clarification-equiv-

Qualifications/ 2018, dated 03.07.2018."

13. Thus, as seen from the notification along with its

annexure, candidates who have applied for the post of Lecturer

must also possess a degree in the same subject. But as per the

rules notified by the State for recruitment of Lecturers in degree

colleges by direct recruitment vide G.O.Ms.No.47 Higher Education

(CE.I-1) Department dated 14.05.2007, the qualification is as

follows:

" The posts of Lecturers in the subjects under restructured courses like computer Sciences, Computer Applications, Biotechnology, Genetics, Tourism, and Travel Management, Medical Lab Technician, Dairying etc., and in any other subject where no junior Lecturer in the same subject is available in Government Junior College, such posts shall be filled by direct recruitment only."

14. Undisputedly the petitioners did not possess any degree

in the same subject in graduation and they did not comply with

the requirement as per Lr.No.APSCHE/ums-1035/Clarification-

equiv-Qualifications/ 2018, dated 03.07.2018. Whether failure to

possess degree in the same subject or relevant subject disqualified

the petitioners for being appointed as Lecturer is to be decided by

this Court at this stage.

15. Admittedly, the letter referred to above prescribing

qualification at the under graduate level in the same subject is

only by administrative instructions, whereas rules vide

G.O.Ms.No.47 Higher Education (CE.I-1) Department dated

14.05.2007 were issued by exercising power by State legislature

under Article 309 of Constitution of India. Therefore, letter

prescribing additional requirement i.e., possessing degree in the

same subject or relevant subject is in the nature of administrative

or executive instructions.

16. Administrative/executive directions/ instructions/

regulations will be issued by the higher authorities to the lower

authorities in the absence of a rule or enactment pertaining to a

specific issue or to compensate or fill the lacunas in the existing

laws and thereby constructing better standards or platform to

tackle the issues. The administrative direction is otherwise

designated as administrative quasi law, or administrative quasi

legislations. Thus the directions can be specific that is formulated

and applied to a particular purpose or, particular case, or it may

be general in nature, laid down general principles, practices or

procedures to be followed in similar cases and further these

directions executive or administrative issued in the form of letters,

orders published in Gazette.

17. In contemporary India, the Government enjoys indefinite

or boundless administrative powers, therefore, the areas of issuing

administrative directions are quite ample. The concept of

administrative/executive direction has its roots in Article 73 and

Article 162 of the Constitution, they serve as the substratum.

These articles deal with administrative powers of the Government

and such directions are generally issued under Rules.

18. According to Article 73 of the Constitution of India, the

executive power of the Union shall extend to the matters with

respect of which Parliament has power to make laws. Similarly,

according to Article 162 of Constitution of India, executive power of

State extends to the matters with respect to which the Legislature

of the State has power to make laws. These provisions are

exclusively deal with executive power of the Government and do

not confer any kind of legislative power. At times, statutory powers

are granted to issue directions. A direction issued under statutory

power prevails over a direction issued under general administrative

power.

19. In the case of the Secretary to the Government of

Haryana & Others Versus Vidya Sagar8, wherein two circulars

were issued on the same subject and the former was general and

the latter was specific. The Apex Court held that the latter will

prevail. A direction does not confer any enforceable right on an

individual or impose an obligation on the administrative or

individual.

20. In "Suresh Chandra Singh v Fertilizers Corporation

Civil Appeal No.4384 of 2009 dt 16.07.2009

of India9", the High Court of Allahabad held that administrative

instructions are only advisory and no writ can be issued to enforce

them. The principle was upheld in the case of "Abdulla Rowther

v STA Tribunal10", while holding that the validity of an

administrative action taken in breach of an administrative

direction is not challengeable and the court will refuse to issue

any writ even when there is a patent breach of an administrative

direction.

21. This so-called privilege granted to administrative bodies

to formulate quintessential or circumstantially relevant notions or

instructions is not absolute. It is a well channelled privilege to be

used in the right way at circumstances for a right cause, should

be compatible and in accord with the said limitations. Let us now

consider the situations under which a direction can be rendered

invalid or void. Like any other rule or law or principle, an

administrative direction will be held void if it is against this

principle of Natural Justice, the said principle being the heart and

soul or bedrock of administrative law, no direction can survive if it

tries to override the principles of natural justice. That direction

should be in accordance with the established principles and laws,

and should be reasonable and relevant, a direction should not be

the fruit of unreasonable, ulterior discretion of concerned

authorities, if so, such a direction will be held invalid.

22. As discussed previously, a direction should not be

inconsistent with other existing rules or laws. In legal hierarchy,

directions occupy a place subordinate to other statues, or rules,

and it is settled in the case of "State of Sikkim v Dorjee

1999(3)SLR372

AIR 1959 SC 896

Tshering Bhutia11", that any order, instruction, direction, or

notification issued in exercise of the executive power of the state

which is contrary to any statutory provisions, is without

jurisdiction and is a nullity.

23. A direction should not encroach into or adversely affect

individual rights. Any restriction prejudicial to individual interest

can be placed only by law, cannot be done through administrative

directions. In the case of "District Collector, Chittoor v Chittoor

Groundnut Traders Association12", the State Government

issued a circular to its officer not to permit transport of groundnut

seeds and oil outside the state by millers and traders unless they

agreed to supply certain quantities of these products to the state

at the price fixed by it. The circular thus placed restrictions on the

right of traders. Supreme Court quashed the circular as illegal

and void as the state government had no power to impose such

restriction.

24. Similarly, a direction can stand only if it in congruence

with Article 14 of the Constitution of India. Equality is one of the

imperative element of a democracy, any kind of divergence from

this principle will result in arbitrariness and definitely steer down

the essence of democracy. Therefore, administrative directions will

be held invalid if it violated Article 14. In the case of "S.L.Sachdev

v Union of India13", an administrative direction regarding the

promotion of the upper division clerks to higher grades was

quashed as it was unreasonable, arbitrary, illogical and violative

of Article 14 of the Constitution of India.

25. Thus, from the law laid down by the other High Courts

AIR 1991 SC 1933

AIR 1989 SC 989

AIR 1981 SC 411

and the Apex Court in the judgments (referred supra), the

administrative or executive instructions shall not be inconsistent

with the statutory rules or provisions and not in violation of

principles of natural justice or outcome of arbitrary power.

26. It is settled legal proposition that executive instructions

cannot override the statutory provisions (Vide: "B.N. Nagarajan v.

State of Mysore14" "Union of India v. Majji Jangammyya15"

"State of Maharashtra v. Jagannath Achyut Karandikar16")

27. Executive instructions cannot amend or supersede the

statutory rules or add something therein, nor the orders be issued

in contravention of the statutory rules for the reason that an

administrative instruction is not a statutory Rule nor does it have

any force of law; while statutory rules have full force of law

provided the same are not in conflict with the provisions of the

Act. (Vide: "State of U. P. and Ors. v. Babu Ram Upadhyaya17"

and "State of Tamil Nadu v. M/s. Hind Stone18").

28. In "Union of India v. Sri Somasundaram

Vishwanath19", the Hon'ble Apex Court observed that if there is a

conflict between the executive instruction and the Rules framed

under the proviso to Article 309 of the Constitution, the Rules will

prevail. Similarly, if there is a conflict in the Rules made under the

proviso to Article 309 of the Constitution and the law, the law will

prevail.

29. Similar view has been reiterated in "Union of India v.

(1967)ILLJ698SC

[1977]2SCR28

AIR 1989 SC 1133

1961CriLJ773

[1981]2SCR742

AIR 1988 SC 2255

Rakesh Kumar20" "Swapan Kumar Pal and Ors. v.

Samitabhar Chakraborty21" observing that statutory rules

create enforceable rights which cannot be taken away by issuing

executive instructions.

30. In "Ram Ganesh Tripathi v. State of U.P.22", the Apex

Court considered a similar controversy and held that any

executive instruction/order which runs counter to or is

inconsistent with the statutory rules cannot be enforced, rather

deserves to be quashed as having no force of law. The Apex Court

observed as under :-

"They (respondents) relied upon the order passed by the State. This order also deserves to be quashed as it is not consistent with the statutory rules. It appears to have been passed by the Government to oblique the respondents and similarly situated ad hoc appointees."

31. Thus, in view of the above, it is evident that executive

instructions cannot be issued in contravention of the Rules

framed under the proviso to Article 309 of the Constitution and

statutory rules cannot be set at naught by the executive fiat.

32. In "Commissioner of Income Tax, Mumbai v. Anjum

M.H. Ghaswala23", the Apex Court held that circulars issued by

the Central Board of Direct Taxes under the provisions of Section

119 of the Income Tax Act, 1961 have statutory force and any

other instruction/circular not issued under the said provision, will

not be of any assistance to anybody as the same would not have

statutory force.

33. In view of the law declared in the above judgments by

[2001]2SCR927

[2001]3SCR641

AIR1997SC1446

[2001]252ITR1(SC)

Hon'ble Apex Court and followed by Full Bench of Allahabad High

Court in Vijay's case referred supra executive/ administrative

instructions issued while exercising power under Article 162 of

the Constitution of India will not prevail or override the statutory

rules framed by exercising power under Article 309 of the

Constitution of India. Therefore in the absence of any lacuna or

gap in the statutory rules regarding appointment of Lecturer in

the college by direct recruitment and these executive instructions

vide Lr.No.APSCHE/ums-1035/Clarification-equiv-Qualifications/

2018, dated 03.07.201 is illegal and contrary to the rules.

34. Learned counsel for the petitioner Sri Ravi Kondaveeti

contended that when statutory rules can be enforced and issuing

executive instructions are contrary to the statutory rules, such

executive instructions are invalid and will not prevail or override

the statutory rules framed under Article 309 of Constitution of

India.

35. In support of his contention, he placed reliance on the

judgment of Hon'ble Apex Court in State of Uttaranchal v Alok

Sharma (supra 1), in para -15 and 22, it was held that :

"15. The relationship between the respondents herein and the said Government companies was that of employee and employer. The companies under liquidation although were incorporated and registered under the Companies Act 1956, they are "State", within the meaning of Article 12 of the Constitution fo India. As "State", therefore, they were bound to comply with the equality clause contained in Articles 14 and 16 of the Constitution of India; in terms whereof cases of all the eligible candidates for appointment were required to be considered. Recruitment in government service must be carried out in terms of the rules framed under a statute or the proviso appended to Article 309 of the Constitution of India.

Further the court observed by relying in State of Karnataka v Umadevi reported in 2006 (8) SCC 671, the Hon'ble Apex Court observed that :

22. Keeping in view the principles laid down by the Constitution Bench of this Court in Umadevi (3)1 there cannot be any doubt whatsoever that any condition laid down in any rules which is in derogation of the recruitment rules framed by the State, should receive strict construction."

36. In another judgment of Hon'ble Apex Court in Ashih

kumar's case (supra 2), in para-27, held that :

"27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in statutory rules, the appellant fulfils the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence. In this context, reference is made in the judgment of this Court in Malik Mazhar Sultan v U.P Public Service Commission (2006) 9 SCC 507, in para-21 of the judgment lays down the above proposition which is to the following effect.

"21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 01.7.2001 and 1.7.2002 shall be treated within age for the examination. Undoubtedly the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on the basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules."

37. Finally in Punjab State Warehousing Corporation's

case (supra 3), in para-12, it was held that :

"12. Furthermore, when the terms and conditions of the services of an employee are governed by the rules made under a statute or the proviso appended to Article 309 of the Constitution of India laying down the mode and manner in which the recruitment would be given effect to, even no order under Article 162 of the Constitution of India can be made by way of alterations or amendments of the said rules. A fortiori if the recruitment rules could not be amended even by issuing a notification under Article 162 of the Constitution of India the same cannot be done by way of a circular letter."

38. In view of the above proposition of law consistently laid

down in the above judgments, made it clear abundantly the

statutory rules issued under Article 309 of the constitution of India

cannot be changed by issuing either circular or

administrative/executive instructions exercising power under

Article 162 of the Constitution of India. Apart from that, though

there is a condition in the advertisement, based on executive

instructions vide Lr.No.APSCHE/ums-1035/Clarification-equiv-

Qualifications/2018, dated 03.07.2018, such condition will not

prevail or override the statutory rule contained G.O.Ms.No.47,

Higher Education (C.E.I.1) Department, dated 14.05.2007.

Therefore, incorporation of such condition that, "he must possess

qualification in the relevant subject at the under graduate level"

issued by circular, is invalid and contrary to the Rules vide

G.O.Ms.No.47, Higher Education (C.E.I.1) Department, dated

14.05.2007.

39. Learned Standing Counsel for APPSC Sri Rama Chandra

Murthy mainly contended that when the petitioners participated in

the process of selection appearing for the examination, they are not

entitled to question the clause contained in the advertisement as

they waived such right and cannot raise such objection.

40. In support of his contention, he placed reliance on a

judgment of the Hon'ble Apex Court in Madras Inst.Of Dev.

Studies & Anr vs K. Sivasubramaniyan & Ors24, wherein it was

held that when a candidate, who consciously takes part in the

process of selection, he subsequently can turn around and

question the very method of selection process. Moreover, even on

merits, the condition that the selection process be based on

regulations was not correct. Academic Authorities about the

suitability of a candidate to be appointed as Associate Professor in

a research institute cannot normally be examined by the High

Court under its writ jurisdiction. Having regard to the fact that the

candidates so selected possessed all requisite qualifications and

experience and, therefore, their appointment cannot be questioned

on the ground of lack of qualification and experience.

41. Similarly the issue came up before the Hon'ble Apex

Court in another judgment in Municipal Corporation of Delhi

versus Surender Singh and others25.

42. In another judgment in State of Uttar Pradesh versus

Vijay Kumar Misra26 , wherein , in para-6, it was held as follows:

"6. The position is fairly well settled that when a set of eligibility qualifications are prescribed under the rules and an applicant who does not possess the prescribed qualification for the post at the time of submission of application or by the cut off date, if any, described under the rules or stated in the advertisement, is not eligible to be considered for such post. It is relevant to note here that in the rules or in the advertisement no power was vested in

2016 (1) SCC 454

(2019) 8 Supreme Court Cases 67

(2017) 11 Supreme Court Cases 521

any authority to make any relaxation relating to the prescribed qualifications for the post. Therefore, the case of a candidate who did not come within the zone of consideration for the post could not be compared with a candidate who possess the prescribed qualifications and was considered and appointed to the post.

Therefore, the so-called confession made by the officer in the Court that persons haying lower merit than the respondent have been appointed as SDI (Basic), having been based on misconception is wholly irrelevant. The learned single Judge clearly erred in relying on such a statement for issuing the direction for appointment of the respondent. The Division Bench was equally in error in confirming the judgment of the learned single Judge. Thus the judgment of the learned single Judge as confirmed by the Division Bench is unsustainable and has to be set aside."

43. Law laid down by the Apex Court regarding the right to

question the validity of notification having participated in the

selection process, appearance for the examination is not in

controversy.

44. But in the present case, the petitioners appeared for the

examination as part of selection process and when they were called

for interview and on verification of the certificates they were found

not eligible for their failure to possess the degree in the relevant

subject in under graduate level in view of Lr.No.APSCHE/ums-

1035/Clarification-equiv-Qualifications/2018, dated 03.07.2018.

But that was not the requirement as per G.O.Ms.No.47, Higher

Education (C.E.I.1) Department, dated 14.05.2007, which was

issued by exercising power under Article 309 of the Constitution of

India.

45. As discussed above, when the advertisement itself is

irregular, illegal or contrary to the statutory rules, mere

participation in the selection process appearing for the

examination will not deprive the petitioners to raise such objection

when they were not allowed to participate in the process of

selection for the interview. If such principle is accepted the same

would apply to the 2nd respondent also, because the 2nd

respondent allowed the petitioners to appear for the examination in

the selection process.

46. Therefore the contention of the learned Standing

Counsel for APPSC would not stand to any legal scrutiny and the

same is hereby rejected.

47. Learned Government Pleader for Services-III appearing

for the 2nd respondent, while supporting the case of these

petitioners, placed reliance on the judgment of Apex Court in

Ananad Yadav case (supra 4), wherein it was held in para-13 and

14, as follows:

"13. The Division Bench of the Allahabad High Court, in the impugned order dated 14.5.2018, opined after looking at the judgment in the Dr Prit Singh (supra) case the issue was no more res integra. That is , while M.A. (Education) is a Master's degree in the subject concerned, M.Ed., is not so, as it is only a training qualification. The conclusion reached was that an M.Ed., qualified person could not be appointed to the post of Assistant Professor in Education, and consequently the corrigendum dated 11.7.2016 was quashed.

14. respondent No.2 in compliance with the aforesaid decision, in its meeting held on 05.09.2018 decided to change the qualifications prescribed for the post of Assistant Professor in Education so as to only treat candidates with M.A Education) as eligible for the said post."

48. In another judgment in Maharashtra's case (supra 6),

wherein the Apex Court held in para-10 and 11 as follows:

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.

11. The fact that an expert committee may have been constituted and which examined the documents before calling the candidates for interview cannot operate as an estoppel against the clear terms of the advertisement to render an ineligible candidate eligible for appointment. According to the principle laid down in the above judgment it is clear that if there is an ambiguity in the advertisement or it is contrary to the rules or law the matter has to go back to the appointing authority after appropriate orders."

49. In the present case, the incorporation of condition of

possessing a degree in the relevant field by Lr.No.APSCHE/ums-

1035/Clarification-equiv-Qualifications/2018, dated 03.07.2018 is

against the statutory rules framed under G.O.Ms.No.47, Higher

Education (C.E.I.1) Department, dated 14.05.2007 issued by

exercising power under Article 309 of the Constitution of India.

Therefore the advertisement fixing qualification at the graduate

level in the relevant subject is contrary to the statutory rules. In

such case, the Court can interfere with such process and denial of

an opportunity to participate in the interview to these petitioners

can be held to be illegal. In the same judgment, the Court at the

end held that the Court cannot interpret the terms of the

advertisement. But here, it is not question of interpretation of

terms of advertisement, it is only an illegality committed by the

respondents in incorporating such condition contrary to the

statutory rules.

50. In another judgment the apex Court in Dr

Thingujam (supra 7) expressed its view candidly that "At the

outset, it is to be noticed that though, in none of the writ

petitions, rules governing appointment to the post of Director

was under challenge, the High Court has gone into the validity

of the Rules, as amended, and held that amendments to the

Rules were not carried out by following the Rules, Regulations

and Bye-Laws of the Society. The specific plea of the

respondent authorities in the writ petitions, that there is no

challenge to validity of the rules but same has been brushed

aside by the High Court by merely stating that such an

objection is of technical in nature. At this stage, it is relevant to

note that such objection raised should not have been brushed

aside by the High Court by holding that such objection is of a

technical nature. In all these writ petitions in which common

order is passed by the High Court, validity of advertisement

dated 16.08.2016 alone was under challenge. We are of the

view that the High Court has committed, an error in going into

the validity of the Rules, in absence of any challenge to the

same. In any event, it was the case of the respondent

authorities that the rules governing appointment were amended

by following the rules and such amendment was also [email protected]

S.L.P.(C)Nos.15093-15095 of 2017 etc. approved by the

competent authority, of Ministry of Health & Family Welfare.

Further, the fact of not notifying the amended rules has also

been made basis for grant of relief by the High Court. In this

regard, the High Court has held that not notifying the amended

rules would strike at the root of the amendment process of the

recruitment rules, as such, unless such rules are notified, the

same cannot be enforced. It appears from the impugned order

itself that it was the specific plea in the counter affidavit filed

before the High Court that the said rules were not framed

under Article 309 of the Constitution of India and further there

is no specific provision in the Rules, Regulations and Bye-Laws

of RIMS for notifying the same. It is true that in a public

institution, rules are required to be made available, but at the

same time not notifying to public at large cannot be the ground

to invalidate the notification, in the absence of any provision to

that effect in the Bye-Laws of the Society or the Rules and

Regulations framed for recruitment to the post of Director.

The High Court has also noticed that the experience for

eligibility notified in the advertisement dated 16.08.2016 was

not in conformity with the Medical Council of India Regulations.

In reply affidavit filed before the High Court, while denying such

allegation, it was pleaded that the qualifications and

experience, as notified in the advertisement dated 16.08.2016,

was in accordance with the "Minimum Qualifications for

Teachers in Medical Institutions Regulations, 1998" (as

amended from time to time), framed by the Medical Council of

India. It was the specific contention of the respondent

authorities that as the RIMS is affiliated to C.A. @S.L.P. (C)

Nos.15093-15095 of 2017 etc. Manipur University, the

requirement as prescribed by Medical Council of India for

Director of affiliated hospital should be applied. Such plea is

not accepted by the High Court on the ground that there is no

proper pleading in this regard. A copy of the Regulations titled

as, "Minimum Qualifications for Teachers in Medical

Institutions Regulations, 1998" (as amended upto 11th March

2017) issued by the Medical Council of India is placed before

us. As notified in the said Regulations, the academic

qualifications and experience applicable for the post of Director

of medical institutions differ from those applicable for the post

of Director/Medical Superintendent of affiliated teaching

hospital. For the post of Director in a medical institution, apart

from the academic qualifications, ten years' experience as

Professor/Associate Professor/Reader in a medical college, out

of which at least five years should be as Professor in a

department, is prescribed. However, for the post of

Director/Medical Superintendent of the affiliated teaching

hospital the required experience is ten years only. It is the

specific case of the respondents that the RIMS is an affiliated

teaching hospital. In view of such stand of the respondents it

cannot be said that the experience for eligibility notified in the

advertisement dated 16.08.2016 is contrary to the Regulations

of Medical Council of India. So far as relaxation of upper age

limit, as sought by the petitioners in one of the writ petitions is

concerned, High Court has directed the competent authority

and Executive Council of the Society to consider for providing

such relaxation clause. We fail to understand as to how such

direction can be [email protected] S.L.P.(C)Nos.15093-15095 of 2017 etc.

given by the High Court for providing a relaxation which is not

notified in the advertisement. While it is open for the employer

to notify such criteria for relaxation when sufficient candidates

are not available, at the same time nobody can claim such

relaxation as a matter of right. The eligibility criteria will be

within the domain of the employer and no candidate can seek

as a matter of right, to provide relaxation clause.

For the aforesaid reasons, we allow these appeals and set

aside the impugned common judgment and order dated

27.03.2017 passed in W.P.(C) No.676 of 2016; W.P.(C)No.722 of

2016; and W.P.(C)No.766 of 2016 by the High Court of Manipur

at Imphal. Consequently, the above said writ petitions stand

dismissed.

These civil appeals are filed by the Union of India and

RIMS challenging the very same order of the High Court by

which the advertisement dated 16.08.2016 has been quashed.

For the reasons recorded while dealing with the appeals arising

out of S.L.P. (C)Nos.15093-15095 of 2017, these appeals also

stand allowed and the abovementioned impugned order of the

High Court is set aside."

51. In another judgment of Apex Court in District Collector

case (supra 5) wherein in para-3, it was held that :

3. Learned Government Pleader appearing on behalf of the petitioners would urge that keeping in view the fact that a particular qualification was notified as minimum qualification, the respondent herein cannot be said to have fulfilled the criteria laid down in the recruitment notification. We are afraid, having regard to the provisions of Articles 14 and 16 of the Constitution of India, the contention of the learned Counsel cannot be accepted. The State is considered to be a model employer, as has been held by the apex Court in H.D.Singh v. Reserve Bank of India. It is really curious that the State has taken such an unreasonable stand. Person having a better qualification cannot be denied appointment on the ground that the minimum qualification required is something else. Prescription of a minimum qualification is necessary so that all candidates must hold atleast that qualification. But the same does not mean that a person with a higher qualification would not meet the requirement. In Y.Srinivasa Rao v. J. Veeraiah. the Apex Court, while dealing with a case of allotment of Fair-Price Shop, held that preference to an uneducated man over an educated man would amount to allowing premium of ignorance, incompetence and consequent inefficiency. The Apex Court observed that the same would amount to gross arbitrariness resulting in illegal discrimination. Yet again, in Mohd. Riazul Usman Gani v. District and Sessions Judge, Nagpur, 2000 SCC (L&S) 305, the Apex Court clearly held that:

"A criterion which has the effect of denying a candidate his right to be considered for the post on the principle that he is having higher qualification than prescribed cannot be rational. We have not been able to appreciate as to why those candidates who possessed qualifications equivalent to SSC Examination could also not be considered. We are saying this on the facts of the case in hand and should not be understood as laying down a rule of universal application.

We do not think, therefore, that criterion four as laid by the Advisory Committee constituted under the Rules and upheld by the High Court is in any way reasonable or rational. By adopting such a course the High Court has put its stamp of approval to another type of reservation for recruitment to the service which is not permissible. A poor person can certainly acquire qualification equivalent to SSC Examination and not that he cannot go beyond

Standard VII. Perhaps by restricting appointment to a candidate having studied only upto Standard VII the High Court may not be encouraging dropouts."

52. Even if these principles are applied to the present facts

of the case when the rules specifically prescribing a specific

qualification and insisting these petitioners to possess degree in

relevant subject at the under graduate level by

executive/administrative institutions exercising power under

Article 162 of the Constitution of India adding additional

qualification which is not prescribed in the rules, is a serious

illegality.

53. Similar issue was decided by the Full Bench of

Allahabad High Court in Ananad Yadav Vs State of Uttar

Pradesh & Ors (supra 4), wherein the same principles were

reiterated. Therefore the condition imposed by 2nd respondent in

Annexure-III of the advertisement inviting applications based on

the Lr.No.APSCHE/ums-1035/Clarification-equiv-Qualifications/

2018, dated 03.07.2018 is contrary to the rules and it is nothing

but prescribing additional qualification to the qualification

prescribed under the rules and thereby the said condition

prescribed is illegal and contrary to law. Hence, the condition

prescribing a qualification i.e., possessing degree in the relevant

subject in under graduate level is hereby quashed.

54. In view of my foregoing discussion and when this Court

quashed the condition imposed in pursuance of the letter in

Lr.No.APSCHE/ums-1035/Clarification-equiv-Qualifications/2018,

dated 03.07.2018, the petitioners became eligible to appear for

interview for the post of Lecturer in Political Science, as the action

of the respondents is arbitrary and contrary to the rules vide

G.O.Ms.No.47, Higher Education (C.E.I.1) Department, dated

14.05.2007 .

55. In the result, the Writ Petition is allowed, declaring the

action of the respondent No.2 as illegal, contrary and violative of

G.O.Ms.No.47, Higher Education (C.E.I.1) Department, dated

14.05.2007 issued in exercising the power under Article 309 of

Constitution of India prescribing eligibility for being appointed for

the post of lecturers in degree colleges while setting aside the

condition referred to above and directing the 2nd respondent to

permit these petitioners for the interview for the post of Lecturers

in the relevant subject and complete the process, in accordance

with law, if the petitioners are otherwise eligible. No order as to

costs.

Miscellaneous petitions pending, if any, in this Writ Petition

shall stand closed.

_________________________________________ JUSTICE M.SATYANARAYANA MURTHY

Date : 25-02-2021 Note: L.R copy to be marked.

(b/o) Gvl

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION No.4259 OF 2021

Date : 25.02.2021

Gvl