Andhra Pradesh High Court - Amravati

Meesala Pavani vs The State Of Andhra Pradesh on 1 July, 2022

                                                                                  RC,J
                                                           W.P.Nos.8469 & 8479 of 2021

                                        1


               HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

                WRIT PETITION Nos. 8469 & 8479 of 2021

COMMON ORDER:


      Both these writ petitions are filed by two separate individuals. However,

since they are filed for similar relief and as the learned counsel for the parties

advanced similar arguments, for sake of convenience, both the writ petitions

are disposed of by this common order.


      2. These writ petitions are filed by the respective petitioners invoking

jurisdiction of this Court under Article 226 of the Constitution of India for the

following relief:


          "....to issue a writ, order or direction particularly, one in the nature
          of writ of mandamus, declaring the action of the respondents, in not

allowing the petitioner to participate in an oral interview for the post of Lecturer in Government Degree college issued vide its notification No.26/2018 dated 31.12.2018 despite of being possessed requisite qualification as per para-3 of notification as on the date of making application is illegal, arbitrary and violation of principles of natural justice and also violative of articles 14,16,19,21 & 300A of the Constitution of India and consequently direct the respondents to permit the petitioner to participate in the interview process scheduled herein as observed by the Hon'ble High Court of Andhra Pradesh and the Hon'ble Apex Court in the case of N.Sathya Balaji Rao v. Andhra Pradesh College Service Commission, Hyderabad (2002 LawSuit(AP) 1473, Rekha Chaturvedi vs. University of Rajastah (1993 LawSuit(SC) 43)...."

3. The contentions in both the writ petitions are similar and in brief,

they are summarized as under:

In response to the notification No.26/2018 dated 31.12.2018 issued by

Andhra Pradesh Public Service Commission (for short,'APPSC') inviting RC,J W.P.Nos.8469 & 8479 of 2021

applications from eligible candidates for filling up the posts of Degree college

lecturers of various subjects, the petitioners applied for the post of lecturer

for Computer Science and Computer applications subjects and they had

appeared for the examination held for the post of Lecturer conducted by the

APPSC and they were qualified for the interview and accordingly call letters

have been issued vide Memo No.575/D.L./2018, dated 01.02.2021. It is the

further case of the petitioners that during certificate verification, the

respondent authorities stated that the petitioners did not possess requisite

qualification prescribed for the post. It is the further case of the petitioners

that they acquired M.Tech Computer Science qualification from Andhra

University and qualified NET conducted by the University Grants Commission,

however, the respondent authorities rejected the candidature of the

petitioners for interview on the ground that the date of notification was

31.12.2018 but the petitioners qualified NET on 05.01.2019 only and hence

they did not possess necessary qualifications on the date of issuance of the

notification and thus they are not eligible. It is the further case of the

petitioners that in catena a decisions the Hon'ble Apex Court and various High

Courts categorically held that a candidate applying for a particular post should

necessarily possess the qualification as on the date of making the application

and since the petitioners have applied for the posts on 16.02.2019 and

18.02.2019 respectively and the notification prescribes the last date for

submission of applications as 26.02.2019, the respondent authorities are not

justified in rejecting the candidature of the petitioners for interview and hence

the present writ petitions have been filed.

RC,J W.P.Nos.8469 & 8479 of 2021

4. The 3rd respondent -APPSC filed separate counter affidavits in both

the writ petitions, however, with similar contents and in brief, they are as

under:

The Commission has issued notification for filling up of 308 posts of

lecturers in various subjects in Government Degree Colleges through

notification No.26/2018 dated 31.12.2018 including 50 vacancies for the post

of Lecturer in Computer Science and 20 vacancies in Computer Applications.

As per the condition laid down in G.O.Ms.No.464, GA (Ser-D), dated

19.11.1997 (amendment to Rule 12 (3)(a) of A.P. State and Subordinate

Service Rules-1996), the candidates should possess the academic qualification

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 and the notification issued also contains the said stipulation.

However, the petitioners did not possess the qualification of NET as on the

date of notification and they could only pass the said examination on

05.01.2019 and hence their candidature was rejected for oral interview. In

view of the decision of the Hon'ble Apex Court in U.P. vs. Vijayakumar

Misra ((2017)11 SCC, page 521) that a person not possessing the requisite

qualification at the time of notification cannot be considered for appointment,

the petitioners, who have not acquired the requisite qualification of NET as on

the date of notification are not eligible for appointment and hence prayed to

dismiss the writ petitions.

RC,J W.P.Nos.8469 & 8479 of 2021

5. The petitioners filed reply affidavit reiterating the contentions raised

in the writ petition and denying the contention raised by the respondents that

as the petitioners do not possess requisite qualifications as on the date of the

notification, they are not eligible to apply for the posts, they prayed to allow

the writ petition.

6. Vide orders in I.A.No.3 of 2021 dated 04.05.2022 in W.P.No.8469 of

2021 and in I.A.No.1 of 2022 dated 17.06.2022 in W.P.No.8479 of 2021, one

Y.Jnapika was impleaded as 5th respondent to both these writ petitions. The

contentions raised by her, in brief, are as follows:

The 5th respondent applied for the post of degree lecturer conducted by

APPSC vide notification No.26 of 2018 dated 31.12.2018 and she had

appeared for the examination conducted by APPSC and she was declared as

qualified and she was called for oral interview and she attended for interview

on 22.02.2021 and in view of her performance, she is expecting selection to

the post of Degree College Lecturer in Computer Science. It is her further

case that the petitioners are not qualified and eligible to apply for the posts in

view of rules mentioned in para-3 of the notification, since they did not

acquire the qualification of NET by the date of notification and hence prayed

to dismiss the writ petitions.

7. In both these writ petitions, this Court granted interim orders on

16.04.2021 to the following effect:

"In the meanwhile, the respondents are directed to reserve one post of Government Degree College Lecturer in Computer science and one post RC,J W.P.Nos.8469 & 8479 of 2021

in Government Degree College Lecturer in Computer Applications with regard to notification No.26/2018 dated 31.12.2018."

8. Heard Sri Jada Sravan Kumar, learned counsel for the petitioners,

and the learned Standing counsel for APPSC, the learned counsel for the 5th

respondent and the learned Assistant Government Pleader for Services-1.

9. The learned counsel for the petitioners in elaboration to what has

been stated in the affidavit would submit that a candidate applying for a

particular post should necessarily possess the qualification as on the last date

for making the application and in the instant case, as per the notification,

26.02.2019 is the last date for making the application, whereas the petitioners

have acquired NET qualification on 05.01.2019 as per the certificate issued by

the University Grants Commission and the petitioners have submitted their

applications on 16.02.2019 and 18.02.2019 respectively and thus the

petitioners have been duly qualified for the posts they had applied for as on

the date of submission of their applications. In support of the contentions, the

learned counsel for the petitioners placed reliance on the decisions reported

in N.Sathyabalaji Rao v. Andhra Pradesh College Service

Commission, Hyderabad 1 and Rekha Chaturvedi v. University of

Rajasthan2.

10. On the other hand, the learned Standing Counsel for APPSC and

the learned counsel for the 5th respondent have contended that as per

G.O.Ms.No.464 GA (Ser-D) Department, dated 10.11.1997, para-3 of the

.2002 LawSuit(AP) 1473

. 1993 LawSuit(SC) 43 : 1993 SCR (1) 186 RC,J W.P.Nos.8469 & 8479 of 2021

Commission's notification No.26 of 2018 and Rule 12(3)(a) of the A.P. State

and Subordinate Service Rules, the candidates applying for a particular post

should possess the academic qualifications and experience including practical

experience prescribed, if any, as on the date of the notification for direct

recruitment and as the petitioners did not possess the requisite NET

qualification on 31.12.2018 and they could only acquired the said qualification

on 05.01.2019, the respondent authorities are justified in rejecting the

candidature of the petitioners for interview and submitted that the writ

petitions are devoid of merit and accordingly prayed to dismiss the writ

petitions.

11. For proper and better appreciation of the controversy involved in

these writ petitions, it is just and appropriate to extract para-3 of the

notification No.26 of 2018 dated 31.12.2018 published by Andhra Pradesh

Public Service Commission inviting applications from eligible candidates.

"PARA-3: EDUCATIONAL QUALIFICATIONS:

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


    Lecturer    in          i) Good academic record with a minimum of 55% marks or
    Government              an equivalent Grade of B in the 7 point scale with letter
    Degree                  grades O,A,B,C,D,E&F of the Masters Degree level, in the
    colleges    in          relevant subject, obtained from the Universities recognized
    A.P.Collegiate          in India.
    education

ii) Should have passed National Eligibility Test (NET) for service lecturers conducted by UGC,CSIR or similar tests accredited by the UGC or SLET conducted by the Osmania University in RC,J W.P.Nos.8469 & 8479 of 2021

terms of G.O.Ms.No.19, Higher Education (CE.I-1), Dept., Dt.24/02/2011 and by Andhra University, Visakhapatnam in terms of G.O.Ms.No.57, Higher Education (CE.1-1) Dept., dt. 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 and appointment of Lecturers in Government Degree Colleges. (As per G.O.Ms.No.47, Higher Education (CE.I-1) Department, dt.14/05/2007 read with G.O.Ms.No.128, Higher Education (CE-I.1) Dept., dt. 24.08.2010"

12. Para-3 of the notification, which prescribes Educational

Qualifications, clearly states that a candidate should possess the academic

qualifications and experience including practical experience prescribed, for the

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

concerned recruiting agency.

13. By virtue of G.O.Ms.No.464, GA (Ser-D), department, dated

19.11.1997, the A.P.State Subordinate Services Rules, 1996 have been

amended. Rule-12(3)(a) of the Service Rules, which defines 'Qualifications for

direct recruitment', reads as follows:

"(3) (a) 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. (vide amendment in G.O.Ms.No.464,G.A.(Ser. D) Dept., dt: 10-11-1997)."

RC,J W.P.Nos.8469 & 8479 of 2021

14. It is well settled that once statutory rules have been made, the

appointment has to be in consonance with such rules (vide J&K Public

Service Commission v. Dr. Narinder Mohan (AIR 1994 SC 1808) and

recruitment made in violation of the Rules has been held to be illegal and set

aside (vide A.Mohambaram v. Jayavelu AIR 1970 Mad 63 (DB).

15. Para-3 of the notification issued by APPSC regarding educational

qualifications is in consonance with Rule-12(3)(a) of the A.P.State

Subordinate Services Rules, 1996 and it clearly stipulates that the candidates

must possess all the academic qualifications as on the date of the notification

dated 31.12.2018.

16. The learned counsel for the petitioners made an attempt to make a

distinction between 'academic qualifications' and 'educational qualifications'

and that the petitioners, who have acquired NET qualification much before

the last date for submission of applications, are eligible for appointment.

17. In this context, it is relevant to note that, the main difference

between 'academic' and 'educational' qualification is that academic

qualification does not involve practical training, whereas educational

qualification may sometimes involve practical training. In most contexts, these

words are synonyms, but sometimes, the term educational qualification can

refer to both academic and professional qualifications. In such cases,

education qualifications also involve training in addition to academic

knowledge and coursework. Thus, there is no force in the contentions so

advanced by the learned counsel for the petitioners.

RC,J W.P.Nos.8469 & 8479 of 2021

18. Moreover, Para-3 of the notification titled as, "Educational

Qualifications", does not specifically state as to what are the 'academic

qualifications' and what are the 'educational qualifications' and a plain reading

of the entire notification clearly demonstrates that the word 'academic

qualifications' in para-3 of the said notification is used as a synonym of the

word 'educational qualifications' and thus there is room for any ambiguity as

sought to be contended by the learned counsel for the petitioners.

19. In Rekha Chaturvedi (2 supra) the Hon'ble Supreme Court held

thus:

"In the absence of a fixed date indicated in the advertisement/ notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualification will be the last date for making the applications.

20. In State of Uttar Pradesh v. Vijay Kumar Misra3 the Hon'ble

Supreme Court, at para-6, held thus:

"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, prescribed under the rules or stated in the advertisement, is not eligible to be considered for such post......"

21. In Shankar K.Mandal and others vs. State of Bihar and

others4 the Hon'ble Supreme Court at para-5 of the order held as follows:

"5......The principles culled out from the decisions of this Court (see Ashok Kumar Sharma v. Chander Shekhar ((1997)4 SCC 18,

. (2017) 11 SCC 521

. (2003) 9 SCC 519 RC,J W.P.Nos.8469 & 8479 of 2021

Bhupinderpal Singh v. State of Punjab ((2000)5 SCC 262) and Jasbir Rani v. State of Punjab ((2002)2SCC 124) are as follows:

(1) The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules.

(2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications.

(3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority."

22. In all the above pronouncements, the Hon'ble Supreme Court

categorically held that the set of eligibility qualifications are to be acquired by

cut-off date. The cut-off date is the date appointed by the relevant service

rules. In case, no cut-off date is appointed by Rules then as appointed in the

notification. As already stated, Rule-12(3)(a) of the Service Rules as well as

the notification specifies it as the date of notification i.e. 31.12.2018.

23. In Maharashtra Public Service Commission and others v.

Sandeep Shriram Warade and others5, in para-10 of the judgment held

as thus:

"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, must less can it delve into the issue with regard to desirable qualifications being at part with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the

. AIR 2019 SC 2154 RC,J W.P.Nos.8469 & 8479 of 2021

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 be 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."

(Emphasis applied)

24. In the above decision, the Hon'ble Supreme Court categorically

held that if the language of the advertisement and the Rules are clear, the

Court cannot sit in judgment over the same.

25. In the instant case, the A.P.Subordinate Service Rules as well as

advertisement in clear and unambiguous terms state that the candidate must

acquire qualifications as on the date of the notification. In the instant cases,

the notification is dated 31.12.2018. Thus, the petitioners for becoming

eligible to apply for the posts mentioned in the notification must have

acquired academic qualifications including NET as on 31.12.2018. It is an

undisputed fact that the petitioners have acquired NET qualification on

05.01.2019 i.e. to say after the date of notification issued on 31.12.2018.

Thus, they are not eligible for applying for the posts notified in the said

notification.

26. In view of the above, the petitioners are not entitled for any relief

sought for by them in the writ petitions and accordingly the writ petitions are