Gujarat High Court
Bharatkumar Babubhai Parmar vs State Of Gujarat on 10 November, 2023
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 705 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 15597 of 2017
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 705 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
==========================================================
BHARATKUMAR BABUBHAI PARMAR
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR YN OZA, SR. ADVOCATE for MS NALANDA D ACHARYA(13355)
for the Appellant(s) No. 1,2
MR SANJAY UDHWANI, AGP for Respondent No.1
MS HETVI H SANCHETI(5618) for the Respondent(s) No.
10,11,3,4,5,6,7,8,9
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
Date : 10/11/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
A crisp question of law arises for
consideration,
- whether in the facts of the case, it was
open for the employer to deviate from the
eligibility prescribed in the Rules and addordingly
in the advertisement, by treating the candidates
possessing the qualification other than the
prescribed, which was higher qualification, on the
projected ground that the higher qualification held
by the candidate could be presupposed taken as they
having inclusively possessed the lower
qualification, especially when the Rules do not so
contemplate.
2. Preferred by the original petitioners, 10 in
numbers, the present Letters Patent Appeals address
challenge to judgment and order dated 20.03.2023 of
learned Single Judge whereby the Special Civil
Applications of the petitioners were dismissed.
The appellants-petitioners wee denied the relief.
2.1 What was prayed by the appellants-petitioners
in their Special Civil Application was to set aside
the action on the part of the respondent
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
authorities in deleting their names from the select
list. They prayed to declare that the deletion was
unauthorised and illegal. It was next prayed to
direct the respondents to offer appointments to the
petitioners as per their own merit in the
respective categories on the post of Gram Sevak.
2.2 Additional prayer was made by amending the
petition seeking to set aside the appointments of
respondents no.3 to 111 made by the District
Panchayat Service Selection Committee on the post
of Gram Sevak and to appoint the petitioners to
the said post after revising the final merit list
produced by the respondent no.2 committee.
3. For recruiting Gram Sevaks, Class III, the
advertisement came to be issued by the Panchayat in
November 2016. Clause 3 of the advertisement
mentioned the age criteria and the educational
qualifications for the post.
3.1 In clause 3.1 of the advertisement, the
education qualifications required were prescribed
to be as under,
"A candidate shall possess-
(i) either two years or three years diploma in
Agriculture or Bachelor in Rural Studies
Obtained from any of the university
established or incorporated by or under the
central or state Act in India or any other
educational institutions recognized as such or
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
declared as Deemed university under section 3
of the University Grants Commission Act, 1956;
(ii) the basic knowledge of computer
applications as prescribed in the Gujarat
Civil Services Classification and Recruitment
(General) Rules,1967;
(iii) adequate knowledge of Gujarati or Hindi
or both."
3.2 The aforesaid eligibility prescription
mentioned in the advertisement was based on above
Rule 3 of the Rules called Gram Sevak, Class- III
in the Superior Panchayat Service Recruitment
Rules, 2014, which was framed by the State
Government in exercise of powers conferred by
sections 227 read with section 274 of the Gujarat
Panchayats Act, 1993, for the purpose of regulating
the post of Gram Sevak, Class-II.
3.3 Rule 3 of the said Rules, which reflected in
the eligibility requirement, mentioned in the
advertisement, reads as under,
"3. To be eligible for appointment by direct
selection to the post mentioned in rule-2, a
candidate shall-
(a) not be less than 18 years and not be more
than 30 years of age:
Provided that the upper age limit may be
relaxed in favour of a candidate who is
already in the Gujarat Panchayat Service in
accordance with the provisions of the Gujarat
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
Panchayat Services Classification and
Recruitment (General) Rules, 1998:
Provided further that the upper age limit may
also be relaxed in favour of a candidate who
is already i the service of the Government of
Gujarat in accordance with the provisions of
the Gujarat Civil Services Classification and
Recruitment (General) Rules, 1967;
(b) possess -
(i) either two years of three years Diploma in
Agriculture or Bachelor in Rural Studies
obtained from any of the Universities
established or incorporated by or under the
Central or State Act in India or any other
educational institutions recognized as such or
declared as Deemed University under section 3
of the University Grants Commission Act, 1956;
(ii) the basic knowledge of computer
applications as prescribed in the Gujarat
Civil Services Classification and Recruitment
(General) Rules, 1967; and
(iii) adequate knowledge of Gujarati or Hindi
or both."
3.4 In response to the advertisement issued in
November 2006 by the respondent District Panchayat,
all the appellants-petitioners made their online
applications to be considered for the post in the
recruitment process. They had the requisite
qualification as mentioned in the Rules and
advertisement of Diploma in Agriculture of either
two years or three years or Bachelor in Rural
Studies. They appeared and cleared written test.
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
The names of the petitioners figured in the
provisional list published by the Panchayat.
3.5 It is further the case that in course of the
verification of the documents, respondents examined
whether the candidate has been possessing the said
educational qualification which is the eligibility
criteria prescribed in the Rules. It is the
grievance that when the selection list was
prepared, the names of the petitioners did not find
the place in the list, although their names were
included in the provisional list. It is the case
that other candidates-private respondents no.3 to
11 herein, who did not possess the qualifications
mentioned in the advertisement, but possessed the
degree of B.Sc., Agriculture, were considered and
their names were included in the list.
3.6 It was the case that the candidates who
possessed B.Sc., Agriculture were not eligible
since their qualification did not match the
qualifications required in the Rules and in the
advertisement. It was submitted that their names
were required to be deleted from the select list
prepared by the respondent no.2-District Panchayat
Service Selection Committee. It was contended that
the appointment letters issued to respondents no. 3
to 11 were also required to be set aside.
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
3.7 It was the further say of the petitioners that
the petitioners need to be appointed on the post of
Gram Sevak, Class-III, as per their own merits by
refusing the final list after deleting the names of
respondents no.3 to 11. The said averments were
made by seeking amendment in the petition, which
was permitted.
4. Learned Senior Advocate Mr. Yatin Oza assisted
by learned advocate Ms. Nalanda Acharya assailed
the impugned judgment and order of learned Single
Judge. It was submitted that only premise on which
learned Single Judge dismissed the petition and
refused to grant relief was based on the decision
of learned Single Judge of this Court in Ketankumar
Shanabhai Kotwal, which was delivered on 22.07.2022
in Special Civil Application No. 12008 of 2017, in
which the similar controversy was involved.
4.1 It was submitted that in that decision, the
Court has misinterpreted the ratio of various
decisions of the Supreme Court and has misapplied
in the facts of the case. It was submitted that in
the present case, the eligibility was clearly
outlined in the rules and the advertisement and it
was not permissible for the employer to travel
outside the parameters of eligibility so prescribed
so as to specifically include in the list those
candidates-private respondents no. 3 to 11 herein,
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
who possessed the qualifications higher than those
mentioned in the statutory Rule to consider them
eligible.
4.1.1 It was submitted that the decision of the
Supreme Court in Jyoti KK v Kerala Public Service
Commission [(2010) 15 SCC 596], was misconstrued
inasmuch as in that case, the scope of Rule
permitted the consideration of higher qualification
as part of the eligibility. It was submitted that
in the facts of the present case, neither such
aspect is present nor it is permissible for the
respondents or open to the Court to treat higher
qualification by applying them as equivalent.
4.1.2 Learned senior advocate relied on the
decision in Mohd. Sohrab Khan vs. Aligarh Muslim
University [(2009) 4 SCC 555], to submit that the
education qualifications mentioned in the
advertisement cannot be deviated from and that the
recruitment must be conducted according to the
prescribed education qualifications. It was
submitted that in the present case, permitting the
candidates who were not having the qualification as
prescribed in the advertisement, the criteria was
changed in the middle of the process.
4.2 Learned advocate Ms. Hetvi Sanchela, appearing
for respondents no. 3 to 11 submitted that the said
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
private respondents on the contrary possessed
higher qualification and could be said to be fit
for the post in question and therefore, were
rightly considered. It was submitted that
exclusion was on the contrary could not have been
justified. She further submitted that all the
respondents are already in service.
4.2.1 It was further submitted that in that view,
as per the amendment dated 21.03.2022, the Rules of
Gram Sahayak, Class III in Superior Panchayat
Service Recruitment Rules, 2014, have been amended
to recognise B.Sc., Agriculture to be the degree
making the candidates eligible for the post. It
was submitted that therefore, there was an
intention on the part of the respondents to include
the B.Sc. degree as part of the eligibility
mentioned in the rules, which was higher
qualification than prescribed.
4.3 Learned Assistant Government Pleader Mr.
Sanjay Udhwani was fair to take a neutral stand
that the court will have to apply the ratio
decidendi from the various decisions considered by
learned Single Judge to be applied in the facts
obtained in this case.
4.4 Respondent no.2 District Panchayat Service
Selection Committee raised to repeat the following
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
contentions from its affidavit-in-reply which were
raised before the Single Judge.
(a) Rules for the cadre of Gram Sevak, Class III,
were framed by the Panhayats, Rural Housing and
Rural Development Department by issuing
notification dated 30.12.2014 based upon which the
advertisement indicating the eligibility criteria
for the post was issued considering the recruitment
process by inviting applications from the eligible
candidates.
(b) 110 posts of Gram Sevak were to be filled in
from the candidates of different categories of
which, 53 was from general and 36, 12 and 18 were
to be out of Socially & Economically Backward
Class, Scheduled Caste and Scheduled Tribe
categories. The reservation for women was also to
be provided.
(c) The petitioners were Scheduled Caste category
candidates. Provisional list of 164 candidates
were published. The petitioners as well as other
candidates whose name figured in the provisional
merit list were called for verification of their
documents on 21.03.2017. The final list was
prepared on 30.03.2017.
(d) The petitioners did not score minimum
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
qualified marks in their category.
(e) All those male candidates belonging to
Scheduled Caste category who were included in the
final select list were more meritorious than the
petitioners.
4.4.1 Further affidavit was also filed to conted
that the petitioners could not have been in the
select list as they scored less marks. It was
contended that the case of the private respondents
no.3 to 11 was liable to be considered for
placement in the list. The private respondents
no.3 to 11 filed their affidavit to contest the
case put forth by the petitioners by seeking to
highlight in detail the details of the different
categories such as general and reserved category
seats to be filled in by such categories, the cut-
off marks, etc.
4.4.2 It was further contended that since
respondents no.3 to 11 possess higher
qualification, they were rightly considered for the
post. Decision of the Supreme Court in State of
Rajasthan vs. Lata Arun [AIR 2002 SC 2642] was
pressed into service to submit that the prescribed
eligibility condition for admission to a course or
for recruitment in service are the matters to be
considered by the appropriate authority and it is
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
not for the courts to decide whether a particular
educational qualification should be accepted or
not. The proposition in the decision in
Maharashtra Public Service vs Sandeep Shriram
Warade [(2019) 6 SCC 362] was relied on.
5. The controversy unfolds to the question as to
whether in the Rules for recruitment to the post of
Gram Sahayak, Class III. The eligibility
prescribed was 'Diploma in Agriculture for two or
three years or Bachelor in Rural Studies'. Whether
the respondents who possessed the qualification-
higher qualification of B.Sc., Agriculture, could
be treated to have included the private respondents
no.3 to 11, to include their names.
5.1 The impugned judgment and order of learned
Single Judge entirely relied on the decision in
Ketankumar Shanabhai Kotwal (supra), in which case,
before learned Single Judge the same controversy
was involved.
5.1.1 In order to appreciate, comprehend and
decide the controversy and to adjudge the law laid
down by learned Single Judge in Ketankumar
Shanabhai Kotwal (supra), which was relied upon by
learned Single Judge, could be said to be laying
down correct proposition of law, the decisions of
the Supreme Court pertaining to the issue in
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
controversy deserves to be examined closely and
threadbare.
5.2 In Jyoti K.K. (supra), the issue before the
Supreme Court was identical as to whether the
candidates possessing qualification higher than the
prescribed could be considered eligible for the
post, which in that case was of Sub-Engineers
(Electrical) in Kerala State Electricity Board for
which the Kerala Public Service Commission invited
applications. The Supreme Court held that in order
that higher qualification could be treated to be
valid, although not prescribed as eligibility, they
must indicate or presuppose the acquisition of
lower qualification.
5.2.1 In Jyoti K.K. (supra), it was Rule 10 (a)
(ii) of the Kerala State and Subordinate Services
Rules, 1956, under consideration. The text of the
said Rule was under,
"10 (a)(ii) Notwithstanding anything contained
in these rules or in the special rules, the
qualifications recognised by executive orders
or 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."
5.2.2 It was asserted that the higher
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
qualification must indicate or presuppose the
acquisition of higher qualification prescribed for
that post. It was stated that the principle would
operate in the context of the very Rule stating
thus,
"...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 qualification 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.
(para 7)
5.2.3 It was further observed,
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 gives an indication that
such qualification is definitely higher
qualification than what is prescribed for the
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
lower post, namely, the post of sub-engineer.
(para 8)
5.3 In State of Punjab v. Anita & Ors. [(2015)
2 SCC 170], the decision of the Supreme Court in
Jyoti K.K. (supra) was considered and explained for
its purport and application. In Anita (supra),
the private respondents were selected against the
advertised post of JBT/ETT teachers. The
advertisement issued for the purpose of recruitment
did not reflect the prescribed qualification which
were indicated in the Appendix to Rule 6 of Punjab
Privately Managed Recognised Schools Employees
(Security of Service) Rules, 1981. Thus, the said
respondents were selected not possessing the
qualifications as stipulated in the statutory
rules. It was stated that it was imperative for
the candidates to possess statutory qualification
prescribed for appointment to the posts in question
and that the possession of higher qualification as
against the prescribed qualification were
inconsequential.
5.3.1 At this stage, two other decisions of the
Supreme Court in P.M. Latha and another vs. State
of Kerala and others[(2003) 3 SCC 541] as also in
Yogesh Kumar and others vs. Government of NCT of
Delhi and others[(2003) 3 SCC 548], may also be
noticed with relevance. They were referred to in
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
Anita (supra).
5.3.2 In P.M. Latha (supra), the principle was
stated that the qualification other than prescribed
in the advertisement cannot be considered on the
ground of possessing higher qualification than
prescribed. The issue was recruitment to the post
of Lower Primary/Upper Primary Teacher in the
Government school. The qualification prescribed
for the post in the advertisement, which was
published in the gazette was passing of Trained
Teachers Certificate (TTC). Instead of selecting
the holders of TTC, the candidates holding B.Ed.
degree came to be selected on the basis that B.Ed.
was higher qualification than TTC. It was held by
the Supreme Court that in terms of the
advertisement, B.Ed. holders were not eligible for
selection. It was held that B.Ed. cannot be
treated as higher qualification than TTC. The
principle was reiterated.
5.3.3 The Supreme Court observed thus,
"We find absolutely no force in the argument
advanced by the respondents that B.Ed.
qualification is a higher qualification than
TTC and therefore, the B.Ed. candidates should
be held to be eligible to compete for the
post. On behalf of appellants, it is pointed
out before us that Trained Teachers
Certificate is given to teachers specially
trained to teach small children in primary
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
classes whereas for B.Ed. degree, the training
imparted is to teach students of classes above
primary. B.Ed. degree holders, therefore,
cannot necessarily be held to be holding
qualification suitable for appointment as
teachers in primary schools. Whether for a
particular post, the source of recruitment
should be from the candidates with TTC
qualification or B.Ed. qualification, is a
matter of recruitment policy."
(para 10)
5.3.4 The Apex Court proceeded further to state,
"We find sufficient logic and justification in
the State prescribing qualification for post
of primary teachers as only TTC and not B.Ed.
Whether B.Ed. qualification can also be
prescribed for primary teachers is a question
to be considered by the authorities concerned
but we cannot consider B.Ed. candidates, for
the present vacancies advertised, as
eligible."
(para 10)
5.3.5 In Yogesh Kumar (supra), the Apex Court
stated that merely because the primary teachers can
also earn promotion to the post of teachers to
teach higher classes and for which B.Ed. is the
prescribed qualification, it cannot be held that
only because it is higher qualification, can
substitute the prescribed qualifications.
5.3.5 The contention raised before the Supreme
Court in Anita (supra) with reference to the
observations in paragraph 7, already quoted in
para 5.2.3 above, was answered and explained taking
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
reference to Rule 10(a)(ii), which was in the
context of Jyoti K.K. (supra) to observe as under,
"A perusal of the rule clearly reveals, that
the possession of higher qualification would
presuppose the acquisition of the lower
qualification prescribed for the posts.
Insofar as the present controversy is
concerned, there is no similar statutory
provision authorizing the appointment of
persons with higher qualifications.
(para 15)
(Emphasis supplied)
5.3.6 Thus, it was indicated unequivocally that
it was the statutory provision in Rule 10(a)(ii),
which made the difference. Since the private
respondents possessed higher qualifications than
the qualification of JBT/ETT, which could be
treated as fulfilling qualification, was negatived.
5.4 In Zahoor Ahmad Rather vs. Sheikh Imtiaz
Ahmad[(2019) 2 SCC 404], the Supreme Court
streamlined the proposition of law having
considered the decision in Jyoti K.K. (supra), P.M.
Latha (supra), Yogesh Kumar (supra) and Anita
(supra).
5.4.1 In Zahoor Ahmad (supra), was the post of
Technician-III, the qualification prescribed was
Matriculation with ITI in Electrical Trade. The
appellants did not possess ITI certification, but
they were Diploma holders in Electrical
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
Engineering/Electronics and Communications. The
Supreme Court held that the prescription of
qualification of post was matter of policy and the
State as employer is entitled to prescribe
qualifications as condition of eligibility after
taking into consideration the nature of job,
aptitude required for efficient discharge of
duties, functionality of a qualification, etc.
5.4.2 Referring to the decision in Jyoti K.K.
(supra) extensively and analytically, the Supreme
Court in Zahoor Ahmad (supra), asserted that what
was laid down in Jyoti K.K. (supra) based on Rule
10(a)(ii). Referring to Anita (supra), it was laid
down by reading the decision of Jyoti K.K. (supra)
and Anita (supra), that in absence of the
stipulation such as found Rule 10(a)(ii) such a
hypothesis could not be deduced.
5.4.3 Following observations in this regard
deserves to be noticed,
"The decision in Jyoti KK has been considered
in a judgment of two learned Judges in State
of Punjab v Anita9. In that case, applications
were invited for JBT/ETT qualified teachers.
Under the rules, the prescribed qualification
for a JBT teacher included a Matric with a two
years' course in JBT training and knowledge of
Punjabi and Hindi of the Matriculation
standard or its equivalent. This Court held
that none of the respondents held the
prescribed qualification and an MA, MSc or
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
MCom could not be treated as a 'higher
qualification'. Adverting to the decision in
Jyoti KK, this Court noted that Rule 10(a)(ii)
in that case clearly stipulated that the
possession of a higher qualification can pre-
suppose the acquisition of a lower
qualification prescribed for the post. In the
absence of such a stipulation, it was held
that such a hypothesis could not be deduced:
(Anita case SCC p.177, para 15"
(Para 25)
5.4.4 It was not possible to conclude that the
higher qualification would presuppose the inclusion
or acquisition of the lower qualification, unless
such presupposition finds support from the Rules.
5.4.5 After analysis of the aforesaid all the
judgments, the law was asserted by the Supreme
Court in Zahoor Ahmad (supra) that the prescription
of qualification for the post is in the realm of
recruitment policy and it is the function of the
employer to prescribe the qualification as
condition of eligibility,
"We are in respectful agreement with the
interpretation which has been placed on the
judgment in Jyoti KK in the subsequent
decision in Anita (supra). The decision in
Jyoti KK 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 pre-supposes the
acquisition of another, albeit lower,
qualification. The prescription of
qualifications for a post is a matter of
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
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."
(para 26)
5.4.6 It was further added and observed by the
Supreme Court,
"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
KK turned on a specific statutory rule under
which the holding of a higher qualification
could pre-suppose 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 of the High Court
was justified in reversing the judgment 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 of the Division Bench."
(para 26)
5.4.7 The Supreme Court cautioned in Zahoor Ahmad
(supra),
"All these are essentially matters of policy.
Judicial review must tread warily. That is why
the decision in Jyoti KK must be understood in
the context of a specific statutory rule under
which the holding of a higher qualification
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
which presupposes the acquisition of a lower
qualification was considered to be sufficient
for the post. It was in the context of
specific rule that the decision in Jyoti KK
turned."
(para 27)
5.5 The jurisprudence says that it is the
employer only, who is the right person who should
have leeway and the free-way to prescribe the
qualification was that while prescribing the
qualification for a post, the State or any employer
would legitimately bear in mind several factors
such as nature of job, the requirement for
discharging of duties, the functionality of the
qualification, content of the course of the
studies, etc. The requirements of the post known
to the employer and the qualification for the post
would be prescribed accordingly.
5.6 At this stage, Division Bench decision of this
Court in Leelaben Chaudhary vs. State of Gujarat,
which was Letters Patent Appeal No. 349 of 2018
decided on 11.05.2018 and pressed into service by
the respondents may be dealt with. The post was
same carrying same qualification. In that case
however, the question was whether the qualification
of Bachelor of Rural Studies could be equated with
graduation in Rural Studies (Agriculture) or Rural
Studies (Animal Husbandary) etc. Essentially, it
was the question of applying equivalence of the
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
qualification. It is not the case here. The
reliance on this judgment therefore was wholly
misconceived.
6. On behalf of the respondents, the decision of
the Supreme Court in Puneet Sharma & Ors. vs.
Himachal Pradesh State Electricity Board [(2021)
SCC Online SC 291] was sought to be harped to
contend that the law interpreted therein referring
to the decision in Jyoti K.K. (supra) and Zahoor
Ahmad (supra) to negate the case of the appellants-
petitioners. In Puneet Sharma (supra), the
contention was that the expression "minimum" was
used in the notification providing essential
qualifications without any bar in that regard found
in the Rules, therefore, it did not prevent the
appointment of degree holders to the post of Junior
Engineer (Electrical) although the minimum
qualification of Matriculation with Diploma in
Electricals/Electronics was the prescription in the
post.
6.1 It was contended therefore that the
Matriculation with Diploma was only minimum
requirement and that in the recruitment process
undertaken by the Himachal Pradesh State
Electricity Board (HPSEB), the employer was
entitled to choose a person with higher
qualification. Thus, the aspect is to be noticed
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
is that the word "minimum" is used in the Rule to
give room to the employer.
6.2 The reasoning adopted by the Court in Puneet
Sharma (supra) was thus,
"In the present case, what is evident from the
rules is that direct recruitment to the post
of JEs in HPSEB is to the extent of 72%.
Undoubtedly, eligibility is amongst those who
passed in matriculation or 10+2 or its
equivalent qualification. However, this Court
is of the opinion that the diploma holders'
contention that the minimum qualification is
matriculation and that the technical
qualification is diploma is incorrect. The
minimum qualification for the post cannot be
deemed to be only matriculation but rather
that only such of those matriculates, or 10+2
pass students, who are diploma holders would
be eligible. The term "with" in this category
has to be read as conjunctive."
(Para 30)
6.3 The set of facts and aspects in Puneet Sharma
(supra) were conspicuously different. It was a
clarificatory amendment, which was brought into
force, which was applied with further reasoning
based on the facts about filling-up of the posts.
The Supreme Court in Puneet Sharma (supra) summed
up thus, which again go to show that the decision
in Puneet Sharma (supra) was based on facts
operated in that case,
"The considerations which weighed with this
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
court in the previous decisions i.e. P.M.
Latha, Yogesh Kumar, Anita (Supra) were quite
different from the facts of this case. This
court's conclusions that the prescription of a
specific qualification, excluding what is
generally regarded as a higher qualification
can apply to certain categories of posts.
Thus, in Latha and Yogesh Kumar as well as
Anita (supra) those possessing degrees or
post-graduation or B.Ed. degrees, were not
considered eligible for the post of primary or
junior teacher. In a similar manner, for
"Technician-III" or 17(2019) 8 SCC 416 18 SLP
(C) 10533-37 of 2020 lower post, the
equivalent qualification for the post of
Junior Engineer i.e. diploma holders were
deemed to have been excluded, in Zahoor Ahmed
Rather (supra). This court is cognizant of the
fact that in Anita as well as Zahoor (supra)
the stipulation in Jyoti (supra) which enabled
consideration of candidates with higher
qualifications was deemed to be a
distinguishing ground. No such stipulation
exists in the HPSEB Rules. Yet, of material
significance is the fact that the higher post
of Assistant Engineer (next in hierarchy to
Junior Engineer) has nearly 2/3rds (64%)
promotional quota. Amongst these individuals,
those who held degrees before appointment as a
Junior Engineers are entitled for
consideration in a separate and distinct sub-
quota, provided they function as a Junior
Engineer continuously for a prescribed period.
This salient aspect cannot be overlooked; it
only shows the intent of the rule makers not
to exclude degree holders from consideration
for the lower post of Junior Engineers."
(Para 38)
7. In the present case, the Rule is clear to
mention the qualification precisely. The
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
advertisement was issued accordingly and the
eligibility was mentioned confined to such
qualification. It was not possible to be construed
for its any clarity to accommodate the candidates
with higher qualification to be eligible. Rule has
to be applied as it stood. Giving flexibility to
accommodate the candidates with higher
qualification in absence of anything contained in
the rule in that regard would indeed be
impermissible in law.
8. The decision of learned Single Judge whereby
the petitions as were dismissed was based on the
another decision in Ketankumar Shanabhai Kotwal
(supra), as well as the impugned judgment of
learned Single Judge. Ketankumar Shanabhai Kotwal
(supra) as well as the impugned judgment of learned
Single Judge could be said to have misapplied the
law in treating the candidates with higher
qualifications-respondents no.3 to 11 to be
eligible although their qualification did not match
the only qualification prescribed in the
advertisement and in the Rule. The decision of
learned Single Judge would not sustain.
9. Projected as lead contention, it was canvassed
on behalf of the respondents opposing the
entitlement to be appointed for the petitioners
that the petitioners' category was scheduled caste
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
category and that the said category vis-a-vis the
other category candidates had minimum cut-off
marks. It was submitted that the petitioners would
therefore not be selected on merits to be entitled
to be appointed.
9.1 In view of the Court, this aspect is only a
secondary factor. The petitioners' name figured in
the provisional list. However, when the final list
was published, their names were disappeared and
private respondents' names were entered to the
exclusion of the petitioners who are admittedly
qualified and eligible on merits.
9.2 Therefore, unless the fresh exercise is
undertaken about preparing the merit list by
excluding the ineligible candidates and including
the petitioners, the final position cannot emerge.
It is only upon such ultimate exercise, the picture
could become clear that the petitioners in
whichever category figured, are entitled to be
selected on merits to be appointed.
9.3 In view of what is held, respondents no. 3 to
11 have to be excluded while undertaking the
exercise to prepare the fresh list, they have to be
excluded in order to exact the positions of the
petitioners at their respective merit place in the
category concerned.
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
9.4 The displacement of petitioners was on account
of entry of private respondents subsequently and
during the process, eventhough the petitioners were
included in the provisional list having been found
eligible.
10. In above light, unless the fresh select list
is prepared of all the eligible candidates,
excluding the private respondents no. 3 to 11, who
are treated to be not eligible, actual merit
position would not become clear.
10.1 In view of the above discussion, Letters
Appeal is allowed. The following directions are
given,
(i) The competent authority of the respondents is
directed to prepare a fresh select/merit list.
(ii) The names of the petitioners shall be
included in such list which were excluded from the
provisional list.
(iii) The authority shall shall not include the
names of private respondents in the fresh select
list to be prepared as above.
(iv) The fresh final select list will be prepared
by including the petitioners, however after
excluding respondents no.3 to 11 who are not
eligible.
NEUTRAL CITATION
C/LPA/705/2023 CAV JUDGMENT DATED: 10/11/2023
undefined
(v) The final merit list shall be accordingly
operated category-wise for the purpose of giving
appointment.
(vi) If the appellants-petitioners herein stand on
merit in the fresh select list, to be operated as
above, they shall be given appointment in order of
merit.
11. The Letters Patent Appeal is allowed
accordingly in terms of aforestated directions.
(N.V.ANJARIA, J)
(NISHA M. THAKORE,J)
FURTHER ORDER
At this stage, learned advocate Ms. Hetvi
Sancheti prays for stay of the judgment stating
that private respondent nos. 8 to 11 would prefer
to approach the higher forum. Learned senior
advocate Mr. Y N Oza for the appellant objects to
the request.
In the facts and circumstance, operation of
the judgment shall remain in abeyance till
18.12.2023.
(N.V.ANJARIA, J)
(NISHA M. THAKORE,J)
BIJOY B. PILLAI
