Sasi Kumar Kalivarapu vs Andhra Pradesh Public Service ...
2021 Latest Caselaw 1173 AP

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                   WRIT PETITION No.4352 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 allowing the petitioner to the interview despite having requisite qualifications as illegal, irregular, irrational and arbitrary besides Article 14 and 21 of the Constitution of India and consequently direct the respondents to allow the petitioner herein to attend the interview on or before 25.02.2021 being conducted by the respondent No.1 which are being held till 25.2.2021 and pass such other order or orders ....."

The facts of the case in brief are that the 1st respondent had

issued notification No.26/2018 dated 31.12.2018 inviting

applications for the post of Lecturer in Government Degree

Colleges in Andhra Pradesh Collegiate Education service, wherein

one post in Zone-I has been reserved for PH category in the subject

of Commerce. The petitioner has applied for the said post and was

qualified in the written test (Mains) on 15.09.2020 and he was

called for interview. Accordingly, he was intimated by a Memo

No.575/D.L/2018 dated 01.02.2021. It is submitted that the State

Higher Education Department has issued G.O.Ms.No.78 and 128,

dated 16.8.2010 and 24.08.2010 thereby clarifying that NET shall

remain the minimum eligibility condition for recruitment,

appointment of lecturers and those who were awarded Ph.D.,

Doctorate in compliance of UGC Regulations, 2009 shall be

exempted from the requirements of minimum eligibility condition

of NET.

The main eligibility criteria/educational qualifications

mentioned in the APPSC advertisement No.26/2018 dated

31.12.2018 for the post of Lecturers in the Government Degree

Colleges issued by the respondent is extracted below:

(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) Dept., dated 24.02.2011 and by

Andhra University, Visakhapatnam in terms of

G.O.Ms.No.57, Higher Education (CE.I-1) Dept., dated

19.12.2014.

N.B:1. A relaxation of 5% marks may be provided (from 55%

to 50% of marks) at the Master's Level for the SC/ST/PH (as per

G.O.Ms.No.91, Higher Education (CE.I-1) Dept., dated 08.09.2004)

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).

It is further submitted that as per the Official Gazette

notification issued by the University Grants Commission (UGC) in

the official website, the relevant eligibility extract issued by UGC in

its Gazette Notification dated 18.07.2018 is reproduced below:

For the Disciplines of Arts, Commerce, Humanities,

Education, Law, Social Sciences, Sciences, Languages, Library

Science, Physical Education and Journalism & Mass

communication.

      I.      Assistant Professor:


              i)    Eligibility (A or B) : A. i) A Master's Degree with

                    55% marks (or an equivalent grade in a point-

scale wherever the grading system is followed) in

a concerned/relevant/allied subject from an

Indian University, or an equivalent degree from

an accredited foreign University.

ii) Besides fulfilling the above qualifications, the

candidate must have cleared the National

Eligibility Test (NET) conducted by the UGC or

the CSIR, or a similar test accredited by the

UGC, like SLET/SET or who are or have been

awarded a Ph.D Degree in accordance with the

University Grants Commission (Minimum

Standards and Procedure for Award of

M.Phil/PhD Degree) Regulations 2009 or 2016

and their amendments from time to time as the

case may be exempted from NET/SLET/SET.

The G.O issued by the 2nd respondent : Department of

Higher Education specified in point 3 G.O.Ms.No.128, Higher

Education (CE.I-1) Dept., dated 24.08.2010) does have a

reference to the Secretary UGC, Lr.No.F.1-1/2002(PS) Exemp.,

dated 01.06.2009 which is an indication that UGC directions and

guidelines should be duly complied with from time to time.

Despite APPSC issued the notification No.26/2018 dated

31.12.2018 after 5 months of the Gazette Notification come into

force w.e.f., 18.07.2018, the updated eligibility criteria issued by

UGC has not been taken cognizance of by APPSC which is an

example of high handedness and reluctance to comply with the

UGC guidelines.

It is further submitted that the petitioner has completed

Master of Business Administration (Full-Time) from FMS,

University of Delhi, in Marketing and Finance having passed in

First Cals in the said examination conducted in April 2017 and

secured 63% of marks in MBA. This petitioner has completed

Bachelor of Engineering in June 2012. It is further submitted that

the petitioner was also qualified in UGC-NET in the examination

held in 05.11.2017 along with securing JRF eligibility. It is further

submitted that the notification issued by the 1st respondent

prescribing B.Com degree at graduation level is not only against

the UGC norms (Point No.7) but also against para 3 (Educational

Qualifications) in its own Notification No.26/2018 as the said Para

3 didn't have any mention about Graduation Level. At the PG

level, the qualification for appointment of Commerce Lecturer is

either M.Com or M.B.A which has been duly fulfilled by the

petitioner (MBA). Further, it is not mandatory to ask for any

specific graduation degree for 12 out of 20 subjects (English,

Telugu, Hindi, Urdu, Orihya, Mathematics, Physics, Chemistry,

Botany, Zoology, Statistics and Geology). The respondents having

permitted the petitioner to appear for the written test but not

considered his candidature despite fulfilling Educational

Qualification. It is further submitted that though the respondents

called the petitioner for interview by letter to attend to interview

are now acting contrary to the letter by not allowing him to attend

interview. Having no other option, the petitioner has filed the

present writ petition.

The respondents did not file their counter, but submitted

their arguments at length.

During hearing, Mr B. Balaiah, learned counsel for the

petitioner 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 under 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.

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 reported in

Ashish Kumar Versus State of Uttar Pradesh and others2 and in

Punjab State Warehousing Corporation, Chandigarh Versus

Manmohan Singh and another3.

On the strength of the principles laid down in the above

three judgments, requested to declare new clause dated

30.07.2018 as illegal and consequently direct the respondents

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 this

petitioner to appear for the interview for the selection for the post

of Lecturer in relevant subject.

Sri Addanki Ramachandra Murthy, learned Standing

counsel for APPSC contended that the petitioner accepted the

terms and conditions of notifications and participated in the

examination, that the notification is legal and he waived his right

(2009) 7 Supreme Court Cases 647

(2018) 3 Supreme Court Cases 55

(2007) 9 Supreme Court Cases 337

to question the validity of condition in the notification and thereby

the petitioner is entitled to claim any relief in the writ petition and

that apart the petitioner did not possess requisite qualification at

the under graduate level in the relevant subject. Consequently,

the denial of opportunity to participate in the interview to this

petitioner is not illegal or arbitrary and thereby the petition is

liable to be dismissed at the stage of admission itself and requested

to dismiss this writ petition.

Whereas, the learned Government Pleader for Services-III

while supporting the action of the respondents placed reliance on

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 petitioner.

Considering the rival contentions and perusing the material

available on record, the point that needs to be answered in this

writ petition is:

Whether the degree in relevant subject is mandatory for appointment of the Lecturer in the Commerce subject in Degree colleges as notified in annexure-III without amending the Rules vide G.O.Ms.No.47 Higher Education (CEI1)

2020 LawSuit (SC) 639

2001 LawSuit (AP) 403

Civil Appeal No(s). 4597 of 2019

Civil Appeal Nos.2250-2252 of 2020

Department dated 14.05.2007? if not whether the refusal interview this petitioner on the ground that he did not possess degree in relevant subject is illegal, arbitrary, if so, they are liable to be set aside ?

POINT :

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

notification in the present writ petition, as follows:

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.

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."

In Annexure-III, the subject equivalent particulars are

mentioned in Sl.No.9 - Lecturers in Commerce, the qualification at

PG level is mentioned as "M.Com. (Commerce) & M.B.A." in

Column No.3. However, in the Column No.4 - Qualification in

Under Graduate Level is mentioned as "B.Com."

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."

The above G.O.Ms.No.47 did not specify the qualification in

under graduate level, by way of administrative instructions either

orally or otherwise the report prescribed such presumption.

Administrative/executive directions/ instructions/

regulations 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.

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 Rule 8.

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.

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.

In "Suresh Chandra Singh v Fertilizers Corporation 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", it was held 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.

This so-called privilege granted to administrative bodies to

formulate quintessential or circumstantially relevant notions or

Civil Appeal No.4384 of 2009 dt 16.07.2009

1999(3)SLR372

AIR 1959 SC 896

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.

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

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.

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

AIR 1991 SC 1933

AIR 1989 SC 989

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.

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.

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

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"

AIR 1981 SC 411

(1967)ILLJ698SC

[1977]2SCR28

"State of Maharashtra v. Jagannath Achyut Karandikar16")

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").

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.

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

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.

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

AIR 1989 SC 1133

1961CriLJ773

[1981]2SCR742

AIR 1988 SC 2255

[2001]2SCR927

[2001]3SCR641

AIR1997SC1446

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."

Thus, in view of the law declared, 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.

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.

In view of the law declared in the above judgments by

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.

[2001]252ITR1(SC)

Learned counsel for the petitioner Sri B. Balaiah contended

that when statutory rules are in force and issuing executive

instructions 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.

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."

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."

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."

Thus, in view of the above principles laid down in the above

judgments, made it clear abundantly that 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 309 of the Constitution

of India. Apart from that, though there is a condition in the

advertisement, such condition will not prevail or override the

statutory rule i.e., as per G.O.Ms.No.47, Higher Education (C.E.I.1)

Department, dated 14.05.2007. Therefore, incorporation of such

condition that, she/he must possess qualification in the relevant

subject at the under graduate level, is invalid and contrary to the

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

dated 14.05.2007.

Learned Standing Counsel for APPSC Sri Rama Chandra

Murthy mainly contended that when the petitioner participated in

the process of selection appearing for the examination, he is not

entitled to question the clause contained in the advertisement as

he waived such right and thereby disentitled to raise such

objection.

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

2016 (1) SCC 454

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.

Similarly the issue came up before the Hon'ble Apex

Court in another judgment in Municipal Corporation of Delhi

versus Surender Singh and others25 and also in another

judgment in Madras Institute of Development Studies and

another versus K.Sivasubramaniyan and others26, wherein, in

para-18, it was held as follows:

"18. The contention of the respondent no.1 that the short-listing of the candidates was done by few professors bypassing the Director and the Chairman does not appear to be correct. From perusal of the document0s available on record it appears that short-listing of the candidates was done by the Director in consultation with the Chairman and also senior Professors. Further it appears that the Committee constituted for the purpose of selection consists of eminent Scientists, Professor of Economic Studies and Planning and other members. The integrity of these members of the Committee has not been doubted by the respondent- writ petitioner. It is well settled that the decision of the 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. The High Court ought not to have interfered with the decision of the Institute in appointing respondent nos. 2 to 4 on the post of Associate Professor."

In another judgment in State of Uttar Pradesh versus Vijay

Kumar Misra27 , wherein , in para-6, it was held as follows:

(2019) 8 Supreme Court Cases 67

(2016) 1 Supreme Court Cases 454

(2017) 11 Supreme Court Cases 521

"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 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."

Law laid down by the Apex Court regarding the right to

question the validity of notification after appearance for the

examination is not in controversy. But in the present case, the

petitioner appeared for the examination and when he was called for

interview and on verification of the certificates he was found not

eligible. 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.

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 petitioner to raise such objection,

when he was 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 petitioner to appear for the examination in the

selection process. Therefore, the contention of the learned

Standing Counsel for APPSC would not stand to any legal scrutiny

and the same is hereby rejected.

Learned Government Pleader for Services-III appearing for

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

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."

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."

In another judgment the apex Court in Dr Thingujam (supra

7) wherein it was held in 13, 14, 15 & 17 :

"13. 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.

14. 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 [email protected](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.

15. 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.

17. 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."

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."

Even if these principles are applied to the present facts of the

case when the rules specifically prescribing a specific qualification

and insisting this petitioner 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 or otherwise adding additional qualification which is not

prescribed in the rules, is a serious illegality.

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 notifying the application 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.

In view of my foregoing discussion, the petitioner is eligible

for being interviewed for the post of Lecturer in Commerce in

Government Degree Colleges, wherein one post in Zone-1 has been

reserved for PH category in the subject of Commerce, and 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 .

In view of the above discussion, the action of the respondent

No.2 is declared 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 directing the 2nd respondent to permit this

petitioner for the interview for the post of Lecturer in the relevant

subject in Commerce and complete the process in accordance with

law, if the petitioner is otherwise eligible.

Accordingly, the Writ Petition is disposed of. No order as to

costs.

Miscellaneous petitions pending, if any, in this Writ Petition

shall stand closed.

_________________________________________ JUSTICE M.SATYANARAYANA MURTHY

Date : 26 -02-2021 Gvl

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION No.4352 OF 2021

Date : 26.02.2021

Gvl