Bharatkumar Babubhai Parmar vs State Of Gujarat
2023 Latest Caselaw 2385 Guj

     C/SCA/15597/2017                               ORDER DATED: 20/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15597 of 2017

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               BHARATKUMAR BABUBHAI PARMAR & 1 other(s)
                               Versus
                     STATE OF GUJARAT & 1 other(s)
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Appearance:
MR KEVALSINH B RATHOD(10250) for the Petitioner(s) No. 1,2
MR.AMIT R JOSHI(6682) for the Petitioner(s) No. 1,2
MR AYAAN PATEL AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
MS HETVI H SANCHETI(5618) for the Respondent(s) No. 10,11,3,4,5,6,7,8,9
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 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                             Date : 20/03/2023

                              ORAL ORDER

1. The present Special Civil Application is filed praying for the following reliefs :-

"(A) Your Lordships may be pleased to admit and allow this petition;

(B) Your Lordships may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction, to quash and set aside the action of the respondents in deleting the name of the petitioner from the select list by holding that the deletion is unauthorized, illegal and contrary to the advertisement;

(C) Your Lordships may be pleased to issue a writ of Mandamus or any other appropriate writ, order or direction, directing the respondents to offer appointment to the petitioner as per their own merit in his respective categories on the post of gram sevak;

(D) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to restrain the respondents from issuing appointment order to the candidate on the post of Gram Sevak;

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(E) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to restrain the respondents from confirming the appointment of candidate on the post of Gram Sevak;

(F) Your Lordships may be pleased to grant such other and further relief/s that may be deemed fit and proper in the interest of justice."

2. The factual matrix in the present case is as follows :-

2.1 The petitioners are having a qualification of Bachelor in Rural Studies from the recognized university. The respondent District Panchayat issued an advertisement inviting the applications for the post of Gram Sevak in November, 2016. The advertisement prescribed the requisite qualification for the candidate to be either two years or three years Diploma in Agriculture or Bachelor in Rural Studies. That the petitioners were called and they had appeared before the Staff Selection Committee. Thereafter, their documents came to be verified by the District Panchayat. That thereafter, the select-list was prepared by the respondent. It is the further case of the present petitioners that their names did not appear in the select-list though their names were in the provisional list. It is their case that some candidates who did not have the prescribed qualification of either two years or three years Diploma in Agriculture or Bachelor in Rural Studies have been placed in the final select-list above the present petitioners. Hence, the present Special Civil Application is filed.

3. Learned advocate Mr. Amit Joshi appearing on behalf of the petitioners submits that once the advertisement has prescribed the qualification for either two years or three years Diploma in Agriculture or Bachelor in Rural Studies obtained from any recognized university, then the same ought to have been adhered

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to by the respondents in preparing of select-list. It is further submitted that some of the candidates were possessing the Degree of B.S.C. (Agriculture) which is not the degree prescribed as qualification for the post in question in the advertisement as well as the official gazette. He therefore submits that the case of the present petitioners be considered and the Special Civil Application be allowed.

4. Per contra, learned advocate Mr. H. S. Munshaw appearing on behalf of respondent No.2 submits that even otherwise, the petitioners are not eligible to be included in the final select-list as they have secured less marks then the last candidate in the SC category who was on the final select-list and appointed by the District Panchayat. He therefore submits the present Special Civil Application be dismissed.

5. Learned advocate Ms. Hetvi Sancheti appearing on behalf of respondent Nos.3 to 11 submits that the very same issue had arisen in Special Civil Application No.12008 of 2017 and other connected matters in respect of the very same advertisement. She further submits that by the judgment and order dated 22.07.2022, the Coordinate Bench of this Court had dismissed the said petition of similarly placed candidates as the present petitioners. She therefore submits that in view of the said judgment of the Coordinate Bench, the present Special Civil Application be dismissed.

6. Heard learned advocates for the respective parties and perused the documents on record.

7. It is not disputed by learned advocates appearing for the parties that the very same question which is raised in the present

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Special Civil Application with respect to consideration of the Degree of B.S.C. (Agriculture) in respect of the very same advertisement for different district and pertaining to the same official gazette, had come up for consideration before the Coordinate Bench of this Court. The Coordinate Bench, by judgment and order dated 22.07.2022 in Special Civil Application No.12008 of 2017 and other connected matters, held as under :-

"15. The Apex Court in case of Puneet Sharma and ors vs. Himachal Pradesh State Electricity Board Ltd and anr in Civil Appeal No. 1318- 1322 of 2021 decided on 07 April,2021, Electricity Board while considering the question as to whether degree in Electrical Engineer/Electronics Engineer is technically higher qualification than Diploma in their discipline and whether the degree holders are eligible for appointment to the post of Junior Engineers (Electrical) under the relevant Recruitment Rules held in similar facts that when the degree holders in the concerned discipline applied for the post of Junior Engineer claiming that since they possessed educational qualification higher than the prescribed minimum and advertised qualification, they could not have been denied consideration as under:

"22. The question whether the stipulation or prescription of the particular academic qualification excludes an applicant who possesses what is termed as a higher qualification, from their candidature to the concerned post has often arisen for consideration by this Court. In P.M. Latha & Anr. v. State Of Kerala & Ors. 11, the issue which arose for consideration was whether, for primary class teachers, the prescribed (and advertised) qualification Trained Teacher Certificates (TTC), included those who held B.Ed.

degrees. This court was forthright in holding that the B.Ed. qualification could not be considered as a higher qualification than the TTC and that the TTC qualification was "given to teachers especially trained to teach small children "primary classes", whereas those with B.Ed. were trained to impart education to students of "higher classes". A similar view was expressed in Yogesh Kumar & ors v. Government of NCT Delhi & Ors 12 vis-a-vis the same stipulation i.e., B.Ed. and TTC qualifications. The Court further held in Yogesh Kumar (supra) that "a specialized training given to teachers for teaching small children at primary level

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cannot be compared with training given for awarding B.Ed. Degree."

23. The next judgment is Jyoti K.K. & Ors. v. Kerala Public Service Commission & Ors.13, where the issue was whether degree holders could be considered for the post of Sub-Engineer (Electrical) in the Kerala State Electricity Board, which had prescribed diploma in Electrical Engineering or SSLC or its equivalent as the eligibility criteria. This Court took into consideration Rule 10A and inter alia observed as follows:

"6. Rule 10(a)(ii) reads as follows:

"10. (a)(ii) Notwithstanding anything contained in these Rules or in the Special Rules, the qualifications recognised by executive orders or 11 (2003) 3 SCC 541 12 (2003) 3 SCC 548 13 (2010) 15 SCC 596 standing orders of Government as equivalent to a qualification specified for a post in the Special Rules and such of those higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post."

7. It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant Rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for that post in order to attract that part of the Rule to the effect that such of those higher qualifications which presuppose the acquisition of the lower qualifications prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same Faculty, such qualifications can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far.

8. Under the relevant Rules, for the post of Assistant Engineer, degree in Electrical Engineering of Kerala University or other equivalent qualification recognised or equivalent thereto has been prescribed. For a higher post when a direct recruitment has to be held, the qualification that has to be obtained, obviously

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gives an indication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of Sub-Engineer. In that view of the matter the qualification of degree in Electrical Engineering presupposes the acquisition of the lower qualification of diploma in that subject prescribed for the post, shall be considered to be sufficient for that post.

9. In the event the Government is of the view that only diploma-holders should have applied to post of SubEngineers but not all those who possess higher qualifications, either this Rule should have excluded in respect of candidates who possess higher qualifications or the position should have been made clear that degree-holder shall not be eligible to apply for such post. When that position is not clear but on the other hand the Rules do not disqualify per se the holders of higher qualifications in the same Faculty, it becomes clear that the Rule could be understood in an appropriate manner as stated above. In that view of the matter the order [Jyothi K.K. v. Kerala Public Service Commission, Original Petition No. 9602 of 1998, order dated 30-3- 2000 (Ker)] of the High Court cannot be sustained. In this case we are not concerned with the question whether all those who possess such qualifications could have applied or not. When statutory Rules have been published and those Rules are applicable, it presupposes that everyone concerned with such appointments will be aware of such Rules or make himself aware of the Rules before making appropriate applications. The High Court, therefore, is not justified in holding that recruitment of the appellants would amount to fraud on the public."

24. It is evident therefore, that this Court was of the opinion that for the post of Sub-Engineer (which can be termed as comparable to the post of Junior Engineer in the present case), the Kerala State Electricity Board felt that those possessing degree as well could be considered. This Court upheld the contention.

25. In Anita (supra) this court was concerned with JBT teachers, where the minimum qualification was two years' junior basic teachers' training. Those with MSc, B.Ed. and MA qualifications were held ineligible, looking at the nature of the job i.e. teaching primary classes.

Jyoti (supra) was distinguished because the appointing

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authority had the option of considering appointment of persons with higher qualifications.

26. In Zahoor Ahmad Rather (supra) the post in question was "Technician-III"in the Power Development Department in the State of Jammu and Kashmir. The relevant stipulation with respect to qualification was "Matric with ITI in the relevant trade." The appellants held diploma in Electrical Engineering and were included in the list of disqualified candidates. This resulted in litigation which ultimately culminated in the judgment of this court. This court held in its judgment: "Under the above provisions as well as in the advertisement which was issued by the Board, every candidate must possess the prescribed academic/professional/technical qualification and must fulfil all other eligibility conditions. The prescribed qualifications for the post of Technician III in the Power Development Department is a Matric with ITI in the relevant trade. The Board at its 116th meeting took notice of the fact that in some districts, the interviews had been conducted for candidates with a Diploma in Electrical Engineering while in other districts candidates with a diploma had not been considered to be eligible for the post of Technician III. Moreover, candidates with an ITI in diverse trades had also been interviewed for the post. The Board resolved at its meeting that only an ITI in the relevant trade, namely, 14 (2019) 2 SCC 404 the Electrical trade is the prescribed qualification specified in the advertisement."

27. Thereafter, the Court discussed the previous rulings in P.M. Latha, Jyoti K.K. and Anita (supra), then concluded that the candidature of the diploma holders was correctly rejected and held as follows:

"26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] in the subsequent decision in Anita [State of Punjab v. Anita, (2015) 2 SCC 170 : (2015) 1 SCC (L&S) 329] . The decision in Jyoti K.K.

[Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. The prescription of

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qualifications for a post is a matter of recruitment policy. The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on a specific statutory rule under which the holding of a higher qualification could presuppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12- 10-2017 (J&K)] of the High Court was justified in reversing the judgment [Zahoor Ahmad Rather v. State of J&K, 2017 SCC OnLine J&K 936] of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the Division Bench.

27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered

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to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned."

28. It would be also useful to notice a later judgment of this court, in Chief Manager, Punjab National Bank and Another v Anit Kumar Das 2020 SCC On Line SC 897 where the issue was, whether for the post of peon in the appellant Bank, a degree holder (graduate) could be appointed, given the conscious decision of the employer, that only those who held 10+2 pass qualifications would be considered and those with graduation qualification could not be considered. This court held that the appointment of the respondent, who was a graduate, after he suppressed the fact that he held a degree, and did not disclose it, was unsupportable. In this context, it was observed that as to what qualifications are applicable to what class of posts, is a matter of discretion to be exercised by the employer, which the courts would be slow to interdict. This decision too supports the conclusions in the present case, since the employer, HPSEB asserts that it considers degree holders eligible for appointment to the post of JE."

16. It emerges that the prescription of qualification for a post is a matter of recruitment policy and it is for the State as an employer which is entitled to prescribe the qualification and whether the particular qualification should or should not be regarded as equivalent is a matter for the recruiting authority to determine and holding of a higher qualification could pre- suppose the acquisition of a lower qualification has to be prescribed in the Recruitment Rules and absence of such a rule makes a crucial difference to the ultimate outcome as held by the Apex Court in case of Zahoor Ahmad Rather v Sheikh Imtiyaz reported in 2019 (2) SCC 404 referred in para 26 of the decision of Punit Sharma and ors vs. Himachal Pradesh State Electricity Board Ltd and anr (supra). Therefore, in the facts of the case when the respondent No.2 has considered the degree holders eligible for appointment to the post of Gram Sevak as they are having higher qualification the same cannot be interfered.

17.In view of the foregoing reasons, the petitions being devoid of any merit are dismissed."

8. Learned advocate for the petitioners has relied on the decisions of this Court in Special Civil Application Nos.12432 of 2016

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dated 07.10.2021 and Letters Patent Appeal No.1046 of 2021 in Special Civil Application No.12432 of 2016 dated 14.02.2013 wherein this Court has held that the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained and there cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved.

8.1 In the facts and circumstances of the present case, the said judgments are not applicable in the case of the petitioners. There is no dispute that the selection has taken place as per the procedure prescribed and there is no change in the schedule. The only dispute is with respect to consideration of the higher degree in the agriculture in the present case i. e. the consideration of B.S.C. (Agriculture) in addition to qualification of either two years or three years Diploma in Agriculture or Bachelor in Rural Studies.

9. In view of the judgment rendered by the Coordinate Bench of this Court dated 22.07.2022 in Special Civil Application No.12008 of 2017 and other connected matters, the issue in the present case is squarely covered by the said judgment. The present Special Civil Application is devoid of merits and the same is dismissed in terms of the observations and findings rendered by the Coordinate Bench.

(ANIRUDDHA P. MAYEE, J.)

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