Decided On : 22.2.202 vs State Of H.P. & Another
2021 Latest Caselaw 1146 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWPOA No. 36 of 2019

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Reserved on : 5.1.2021

Decided on : 22.2.2021 Manoj Kumar

...Petitioner Versus

State of H.P. & another

...Respondents

___________________________________________ Coram

Hon'ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes

________________________________________________ For the petitioner : Mr. Sanjeev Bhushan, Senior Advocate with Mr. Rakesh Chauhan, Advocate, for the

petitioner (through video conferencing)

For the respondents : Mr. Ashwani Sharma, Addl. A.G.

with Mr. Vikrant Chandel, Dy.

A.G., for respondent No. 1.

Mr. Sanjeev Kumar Motta, Advocate, for respondent No. 2.

(through video conferencing).

Sureshwar Thakur, Judge

The writ petitioner holds, as becomes unfolded by

Annexure A-1, a diploma, from the Himachal Pradesh

Takniki Shiksha Board, in the discipline, of, Electronics

and communication Engineering. In pursuance thereof, he

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applied against the advertised post, of, J.E. (Electrical),

and his application, was made from the general (BPL

category), wheretowhom, some of the advertised post(s),

became reserved. However, through Annexure A-4, the

petitioner became communicated, that his candidature,

warrants rejection, as, it has become pronounced, by, the

Apex Board, that the afore diploma, in Electronics and

Communications, is, unbefitting for empowering, the

petitioner to seek his becoming, considered for selection

and appointment, against the advertised post, of, J.E.

(Electrical), (a) and, nor it satiates the essential

qualification, as becomes borne in the apposite

Recruitment and Promotion Rules, wherein, a prescription

occurs, inasmuch as, the aspirants' holding a

diploma/degree, in Electrical Engineering or Electronics

Engineering, from, an institution, recognized by the State

Government/Central Government. Since, the juxtaposing

Anneuxre A-1, wherethrough, the writ petitioner, is,

displayed to obtain a diploma, in Electronics and

Communication Engineering, vis-à-vis, the afore alluded

imperative essential qualification, hence prescribed in the

apposite Recruitment and Promotion Rules, embodied in

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Annexure-R/2-A, does, reveal qua rather Annexure A-1,

prima-facie, making departure(s) or deviation(s) therefrom,

(b) inasmuch as, therein, the aspirants concerned, being

enjoined to possess a diploma/degree in Electrical

Engineering or Electronics Engineering, from an

institution, recognized by the State Government or Central

Government, (c) whereas, with the apposite diploma,

embodied in Annexure A-1, rather unfolding qua therein(s)

depictions occurring that in addition to, the enjoined

discipline, of Electronics, his also during the apposite

course, of, his completing, the tenure, of, his studies,

hence receiving instructions, in the discipline, of,

Communication Engineering, thereupon, prima-facie, the

cancellation, of, the candidature of the writ petitioner, for

the afore post, does, hold an iota, of, validity.

2. Dehors, the afore, during the pendency, of,

original application, bearing No. 2117 of 2016, an order,

of, 13.1.2017, became rendered by the learned earstwhile

H.P. State Administrate Tribunal, (i) where through, the

fitness, or suitability of, the writ petitioner, to apply

against the advertised post, and/or, vis-à-vis, the afore

echoing(s), made in Annexure A-1, being construable, to,

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be co-equal, to, the prescribed educational criteria,

became pronounced, to, be referred, to the Equivalence

Committee. However, the afore order, became challenged

by the Himachal Pradesh Staff Selection Commission,

through, its constituting CWP No. 422 of 2017, and

thereon on 12.7.2018, a decision was made, wherein a

direction was made, upon, the learned erstwhile H.P.

Administrative Tribunal, to, after considering the report,

of, the Equivalence Committee, and, after affording an

opportunity, to all the parties, its making a decision, on

merits, upon the lis, borne in CWPOA No. 36 of 2019. The

learned counsel for the Himachal Pradesh Staff Selection

Commission, submits before this Court, that the report of

the Equivalence Committee, borne in Annexure A-6, when

in the concluding paragraph thereof, makes a declaration,

that the educational qualification, possessed by the writ

petitioner, and as became embodied in Annexure A-1, is,

un-befitting, for, the advertised post, (ii) thereupon(s), it

cannot be treated, as, an appropriate qualification, for the

post, of, Junior Engineer (Electrical), (iii) and, hence

sanctity, is, enjoined to be meted thereto. In making the

afore submission, appertaining to this Court, becoming

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barred to make, an, independent, from the afore

conclusion, hence judicial review, of, the afore, he has

placed reliance, upon, a verdict, of, the Hon'ble Apex

Court, rendered in Civil Appeal Nos. 11853-11854 of 2018,

wherein, the afore judicially expostulated bar, against the

writ Court, making, an, independent/departing hence

Judicial Review, vis-à-vis, adversarial to the aspirant,

hence conclusion(s), of, the Equivalence Committee,

become(s) carried, in, paragraphs 22 and 23 thereof, paras

whereof, become(s) extracted hereinafter:

"22. We are in respectful agreement with the

interpretation which has been placed on the judgment in Jyoti KK in the subsequent decision in Anita B (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 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

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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.

23. 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 taken 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 treat 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 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."

3. Even though, the afore conclusion, occurring

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in Annexure A-6, Annexure whereof, is, the report, of the

Equivalence Committee, hence constituted, for making an

equivalence, interse the educational qualifications,

embodied, in the Recruitment and Promotion Rules, and,

vis-à-vis, the purported, in, harmony therewith essential

qualifications, rather, possessed by the writ petitioner,

and, as become borne in Annexure A-1, does, in its

concluding paragraph, borne in Annexure A-6, carry the

hereinafter extracted conclusion(s):

"The committee was also of the opinion that the Diploma in Electronics and Communication

Engineering OR Diploma in Electronics Engineering cannot be treated as appropriate qualification for the

post of Junior Engineer (Electrical)"

And, though the writ Court, becomes barred, to make any

departing therefrom, any judicial review thereof, bar

whereof, becomes encapsulated in the judgment (supra)

rendered by the Hon'ble Supreme Court. However, an

incisive reading thereof, is, imperative, for hence

therethrough(s), the, borne therein(s) ratio decidendi,

becoming culled out, for thereafter it becoming applied, to,

the facts at hand. In the afore endeavor, the striking

portions thereof, become enjoined to be extracted,

inasmuch as, therein(s) (a) the State becoming bestowed

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with the entitlement, of, prescribing qualification(s) or

educational eligibility(ies), vis-à-vis, the advertised post,

(b) equivalence, of, prescribed qualification(s), being not a

matter, which can be determined, in the exercise, of,

judicial review, c) whether a particular qualification,

should or should not be regarded as equivalent, being a

matter for the state, as the recruiting authority, to

determine, d) the State as an 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. All the afore parameters,

hence borne in judgment (supra), rendered by the Hon'ble

Apex Court, upon their respective satiation, rather bar the

exercising, of, the powers, of, judicial review, by a writ

Court, importantly, vis-à-vis, the apposite equivalence(s),

made by the Equivalence committee.

4. As aforestated, the conclusion thereof, does,

support the rejection, of the candidature of the writ

petitioner, for the advertised post. However, the

extraction, of, the penultimate paragraph thereof, is also

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important, for enabling this Court, to, incisively analyze it,

specifically for ascertaining, whether the last of the afore

parameters, borne in the judgment (supra), becoming

satiated or not, as thereins the applicable hereat ratio

decidendi, becomes carried. Consequently, the

penultimate paragraph, of, Annexure A-6, is, extracted

hereinafter:

"The matter was discussed at length the Committee was of the view that the Diploma in Electrical

Engineering cannot be equated with the Diploma in Electronics & Communication Engineering. However, the representative of the Technical Education

Department stated that as per the guidelines of the

AICTE, the Diploma in Electronics Engineering is equivalent to the Diploma in Electronics and

Communication. Therefore, the committee was of the view that the Diploma in Electronics and Communication Engineering may be treated as equivalence to the Diploma in Electronics Engineering."

A deep reading, of, the afore extracted penultimate

paragraph, of, Annexure A-6, unfolds, that the

Equivalence Committee, took a view that their occurs,

interse equivalence interse the essential qualification,

possessed by the writ petitioner, and, as become borne in

Annexure A-1, vis-à-vis, the requisite essential educational

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qualification, as become made, in the Recruitment and

Promotion Rules. The afore penultimate paragraph, hence

does, contradict(s) or conflict(s) with the afore conclusion,

as made therein. Consequently, only for bringing interse

reconciliation, interse the penultimate paragraph, of,

Annexure A-6, and, the conclusion thereof, may not,

obviously work as a constraint upon this Court, to make a

judicial review of Annexure A-6, given it not evidently

harmonizing, vis-à-vis, the last applicable hereat,

parameter, enshrined in paragraph 23, of the

verdict(supra), and/or rather no satiation thereof

emanating therefrom, reiteratedly and conspicuously, vis-

à-vis, the last therein(s), rather applicable hereat hence,

expostulated parameter, (i) judicial edict whereof,

encumbers upon the employer, rather an onerous

responsibility to, explicitly, and, with the utmost precision

pronounce, vis-à-vis, the contents of the Course, as

undertaken, by the aspirants concerned, in the run up, to

his acquiring the apposite diploma, as hence therefrom,

rather the aspirants, aptitudnal skills, in his, efficiently

performing the job requirement(s), are, to be tested, (ii) or

wherefrom, the aspirant(s), suitability, for, donning, the

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responsibility(ies), appertaining, to the advertised post, are

to be gauged. Even though, hence the afore precise

echoing(s), were enjoined to be made, in Annexure A-6 yet,

the Equivalence Committee, has rather created, an

anomalous situation, in Annexure A-6, inasmuch as, its

making interse contradictory pronouncements, in the

penultimate paragraph, and, the concluding portion, of,

Annexure P-6, and, has also, completely failed to make,

therein(s), the, afore alluded judicially canonised

pronouncement(s), (b) appertaining to the undertaking(s),

by the writ petitioner, of, studies in Communication

alongwith the studies in Electronics (Engineering), in the

run up, to, his acquiring the requisite diploma, as became

pronounced in Annexure A-1, rather completely disabling

him, from possessing, the, requisite aptitudnal skills or

job performing skills, nor Annexure A-6 displays that the

contents, of, the afore twin courses, hence undertaken by

him, completely rendering, him, unbefitting to purvey the

requirements, of, the job, as, may become assigned to him,

upon, his selection, and, his appointment(s). In other

words, though, an apt judicially canonised hence ad-

nauseam narration, qua therewith, was enjoined to be

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made, in Annexure A-6, yet a mere mechanical, and,

perfunctory pronouncement(s) occur, in the concluding

portion, of, Annexure A-6, wherethrough hence an

anomalous situation, becomes spurred, inasmuch, as,

thereafter an apposite, and, rife interse conflict, emerges

interse the penultimate paragraph thereof, and, the

conclusion thereof, (c) whereupon Annexure A-6 obviously,

suffers from a taint, of, gross non-application, of, mind,

vis-à-vis, the last parameter(s), carried in the verdict

(supra). In aftermath, for want of satiation, of, the last

parameter, carried in the judgment(supra), rendered by

the Hon'ble Apex Court, does, enable this Court, to, rely,

upon the penultimate paragraph thereof, and, with the

twin courses, undertaken by the writ petitioner, in the

run-up, to his acquiring, the, apposite essential

educational qualifications, becoming therethrough

declared, to, be equivalent or at par, with the desired

essential qualification, rather, made, for, the relevant

purpose, (d) thereupon, dehors, the, afore interse conflict,

yet with the conclusion thereof, being silent, vis-à-vis,

satiation being meted, vis-à-vis, the last parameter,

carried the verdict supra, hence constrains this Court, to,

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declare, the petitioner, qua his being suitable for

selection, and, appointment against the advertised post.

5. Since the scribed instructions, as become(s)

placed on record, by the learned Addl. A.G. display(s),

that the post against the relevant category, is yet vacant,

thereupon, the respondents concerned, are, directed to,

within two weeks hereafter, complete all the relevant

processes, and thereafter, are directed, to, proceed to, in

accordance with law, make an order, for appointment, of,

the writ petitioner, against the advertised post.

6. In view of the afore, the writ petition is

allowed. Also, the pending application(s), if any, are

disposed of. No costs.

(Sureshwar Thakur) Judge

22.2.2021 Kalpana