Khursheed Ahmad Lone vs State Of J&K And Ors
2021 Latest Caselaw 1461 j&K/2

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR

                                                 SWP No.2139/2013

                                                 Reserved on 12.11.2021
                                                 Pronounced on 17 .11.2021

Khursheed Ahmad Lone                                          ..... Petitioner (s)

                                 Through :- Mr. Shakir Haqani, Advocate

                           V/s

State of J&K and ors                                         .....Respondent(s)

                                 Through :- Mr. B.A.Dar Sr. AAG

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                  JUDGMENT

1 The petitioner is aggrieved and has challenged order

No. SDAO/BLA/ESTT/2013-14/263-65 dated 05.06.2013 issued by

respondent No.4 (Annexure-K with the writ petition) whereby stipend to the

petitioner as Rehbar-i-Zirat was directed to be stopped on the ground that he

was not possessing the qualification of B.Sc. Agriculture and, therefore, his

engagement as Rehbar-i-Zirat was questionable.

2 For better appreciation of the grounds of challenge urged by the

petitioner in support of his petition, it is necessary to refer briefly, to the

relevant facts:

The petitioner having done his B.Sc. in the subjects of General English, Chemistry, Botany and Zoology, pursued his M.Sc. Agriculture (Plant Protection) from Aligarh Muslim University, Aligarh and passed out in the year 1997. In the year 2007, the Government of Jammu and Kashmir vide Government Order No. 20-Agri of 2007 dated 06.02.2007 rolled out Rehbar-i-Zirat Scheme for engagement of unemployed Agriculture graduates on a monthly stipend of Rs.1500/- and, accordingly, all the unemployed

SWP No.2139/2013

Agriculture graduates were called upon to register themselves with the Chief Agriculture Officers of their Districts for which wide publication in various newspapers was made. After scrutinizing the credentials submitted by the candidates, respondent No.2 vide Agriculture Order No. 75/Estt of 2007 dated 30.03.2007 engaged as many as 1331 B.Sc. Agriculture/Horticulture graduates from eight different Districts of Kashmir Division. The petitioner, a resident of Baramulla District, too came to be engaged.

3 The petitioner claims that in response to his engagement, he reported to

respondent No.3 and deposited with him all the testimonials including the

certificates of Graduation (B.Sc.) as also M.Sc. Agriculture (Plant Protection).

Upon verification of the credentials submitted by the petitioner, he was

permitted to join. It is submitted that the petitioner, after joining his services as

Rehbar-i-Zirat, has performed his duties in various Panchayat Halqas including

Patwar Halqa Nandihal. It is further submitted that with a view to give the

benefit of regularization to the Rehbar-i-Zirats and their consequent

appointments as Village Agriculture Extension Assistants, the Government of

Jammu and Kashmir issued Government Order No.235-Agri of 2011 dated

04.08.2011 whereby all the Rehbar-i-Zirats, who were possessing valid degrees

of B.Sc. Agriculture/Horticulture, were regularized as Village Agriculture

Extension Assistants in the pay band of Rs.9300-34800 with grade pay of

Rs.4200. The petitioner was, however, not regularized and, therefore, he made

two representations; one on 21.06.2013 and second on 12.09.2013. The

respondents, it is pleaded, did not take any action on his representations, but

instead issued the impugned communication informing him that his stipend

would be stopped w.e.f 01.05.2013 and with regard to his qualification,

requisite clarification would be sought by respondent No.4.

SWP No.2139/2013

4 It is in this backdrop, the petitioner has filed this petition seeking, inter

alia, a Writ of Certiorari for quashing the impugned communication and a Writ

of Mandamus to direct the respondents to regularize his services as Village

Agriculture Extension Assistant as has been done by the respondents in the

cases of thousand other candidates.

5 On being put on notice, the respondents have entered their appearance

and have filed detailed objections. The stand taken by them is that the initial

engagement of the petitioner as Rehar-i-Zirat is illegal and void ab initio, in

that, the petitioner does not possess the basic qualification of B.Sc. Agriculture

which is sine qua non for engagement as Rehar-i-Zirat. It is alleged that the

petitioner by fraudulent means and in connivance with the officers of the

Department managed himself to register as Rehbar-i-Zihar despite the fact that

he did not have the requisite qualification for the purpose. The petitioner has

been found ineligible by the respondents to be engaged as Rehbar-i-Zirat on the

following grounds:

(a) The petitioner was not unemployed as he was working as a contractual teacher in Education Department and that he cheated the Chief Agriculture Officer, Baramulla by concealing the factual position in order to make entry in the Agriculture Department;

(b) The petitioner submitted a wrong affidavit duly attested by the Judicial Magistrate 1st Class to the effect that he was fulfilling the eligibility criteria fixed vide Government Order dated 06.02.2007 (supra); and,

(c) On discovery of the fact that the petitioner was not an Agriculture graduate, he was disengaged and his registration was cancelled by respondent No.3 vide his No.CAOB/Estt/2014-15/11524-27 dated 09.03.2015 and the said communication has not been impugned by the petitioner in this petition.

SWP No.2139/2013

6 Having heard learned counsel for the parties and perused the record, I

am of the considered view that this petition is not maintainable.

7 What is assailed by the petitioner in this petition is essentially a

communication by respondent No.4 to the petitioner informing him that his

stipend would not be drawn w.e.f 01.05.2013 on the ground that he is not

possessing the basic eligibility qualification of B.Sc. Agriculture and,

therefore, his initial engagement as Rehar-i-Zirat is questionable and needs

clarification. The subsequent order issued by the Chief Agriculture Officer,

Baramulla on 09.03.2015, whereby his engagement and registration as

Rehar-i-Zirat in the Department of Agriculture has been cancelled, has not

been assailed in this petition. Otherwise also, as is apparent from a bare reading

of Government Order dated 06.02.2007 (supra), Rehar-i-Zirat Scheme rolled

out by the Government of Jammu and Kashmir in the Agriculture Production

Department, was meant for adjusting the unemployed Agriculture graduates

and there was a clear directive in the said Government Order that only

unemployed Agriculture graduates shall register themselves with the Chief

Agriculture Officers of their Districts. The candidates were also required to

execute an agreement with the Chief Agriculture Officer of their Districts

stating therein that they were not performing any Government service, whether

on contract or ad hoc basis. There was a further stipulation in the said

Government Order that the engagement of the candidates as Rehbar-i-Zirats

under the Scheme shall not confer any right to claim regular appointments. The

order of engagements of 1331 Rehar-i-Zirats in eight Districts of Kashmir

Province issued vide Agriculture Order dated 30.03.2007 (supra) also speaks of

SWP No.2139/2013

engagement of candidates as Rehar-i-Zirats, who were unemployed B.Sc.

Agriculture/Horticulture.

8 It is true that the petitioner, who was not possessing the requisite

qualification i.e., graduation in Agriculture, managed his entry in the

Department as Rehar-i-Zirat on the basis of his Postgraduate qualification in

Agriculture (Plant Protection) which he had obtained from the Aligarh Muslim

University. The fact, however, remains that the petitioner was only a Science

Graduate having passed out his Graduation in the subjects of General English,

Botany, Chemistry and Zoology. The petitioner, by no stretch of imagination or

reasoning, can be called an Agriculture graduate.

9 The plea of Mr. Haqani, learned counsel appearing for the petitioner

that the qualification of the petitioner i.e., M.Sc Agriculture presupposes the

acquisition of lower qualification of B.Sc. Agriculture, cannot be accepted as

correct position of law. Reliance placed by the petitioner on the judgment of

Hon'ble Supreme Court rendered in the case of Jyoti K.K. and ors. vs Kerala

Public Service Commission, (2010) 15 SCC 596 is totally misplaced. The

position of law has been succinctly clarified by the Hon'ble Supreme Court in

the subsequent judgments rendered in the cases of State of Punjab and ors vs.

Anita and ors, (2015) 2 SCC 170 and Zahoor Ahmad Rather vs Sheikh

Imtiyaz Ahmad, (2019) 2 SCC 404.

10 Indisputably, the Hon'ble Supreme Court in the case of Jyoti K.K.

(supra) held that the degree of B.E (Bachelor of Engineering) presupposes the

acquisition of qualification of Diploma in Engineering in the concerned subject

and, therefore, the candidates possessing the qualification of B.E. were eligible

for recruitment to the posts of Sub-Engineer (Electrical) in the Kerala State

SWP No.2139/2013

Electricity Board, but the aforesaid observations was made by the Supreme

Court in the context of Rule 10(a)(ii) of the Kerala State and Subordinate

Services Rules, 1956 which was as follows:

"Rule 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."

11 The position is not similar in the instant case. The Government Order

dated 06.02.2007 (supra) as also the order of engagement dated 30.03.2007

(supra) issued by the Director Agriculture, Kashmir, is clear and unequivocal

and demonstrates unerringly that the Rehar-i-Zirat Scheme was meant only for

unemployed Agriculture graduates. The petitioner being B.Sc Medical was,

thus, not eligible under the Scheme, to be appointed as Rehar-i-Zirat. In the

absence of stipulation similar to the one made in Rule 10 (a)(ii) of the Kerala

State and Subordinate Services Rules, 1956, it is not permissible in law to hold

that the qualification of M.Sc Agriculture (plait Protection) is equivalent to the

qualification of B.Sc. Agriculture. In Zahoor Ahmed Rather's case (supra),

the question before the Supreme Court was with respect to appointment of

Technician-III and the qualification prescribed was "Matric with ITI". Some of

the Diploma holders in Electrical Engineering too had applied. The Service

Selection Board which was conducting the selection took a decision to declare

the only candidates possessing ITI in Electrical trade eligible for recruitment.

In the aforesaid background, the Hon'ble Supreme Court in para 26 of the

judgment (supra) concluded thus:

SWP No.2139/2013

"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 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 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".

12 In the same year, the Hon'ble Supreme Court in the case of Zonal

Manager, Bank Of India, vs Aarya K. Babu, (2019) 8 SCC 587 while

dealing with the selection of Agricultural Field Officer (Scale I) for which the

qualification prescribed was Graduate possessing Degree in Agroforestry and

some of the candidates were possessing four years' Degree in Forestry,

discussed the issue yet again. The observations made by the Supreme Court in

para 12 of the judgment are noteworthy and is reproduced hereunder:

SWP No.2139/2013

"Though we have taken note of the said contention we are unable to accept the same. We are of such opinion in view of the well established position that it is not for the Court to read into or assume and thereby include certain qualifications which have not been included in the Notification by the employer. Further the rules as referred to by the learned counsel for the respondents is pointed out to be a rule for promotion of officers. That apart, even if the qualification prescribed in the advertisement was contrary to the qualification provided under the recruitment rules, it would have been open for the candidate concerned to challenge the Notification alleging denial of opportunity. On the other hand, having taken note of the specific qualification prescribed in the Notification it would not be open for a candidate to assume that the qualification possessed by such candidate is equivalent and thereby seek consideration for appointment nor will it even be open for the employer to change the requirements midstream during the ongoing selection process or accept any qualification other than the one notified since it would amount to denial of opportunity to those who possess the qualification but had not applied as it was not notified".

13 In the instant case, even this Court is not called upon to look to the

equivalence of the qualification for the reason that the both the Rehar-i-Zirat

Scheme as well as the engagement order of the petitioner as Rehar-i-Zirat make

reference to "unemployed agriculture graduates" i.e., the candidates

possessing B.Sc. Agriculture/Horticulture. The Scheme does not provide for

any equivalent qualification and, therefore, debating the issue as to whether the

qualification of M.Sc Agriculture (plant protection) can be treated as

equivalent to B.Sc. Agriculture is an exercise in futility. Once the employer, for

the purpose of providing employment, indicates a specific qualification, the

candidate to be eligible to participate in the selection for the said employment

must possess the prescribed qualification. The prescribed qualification for

engagement as Rehar-i-Zirat is B.Sc. Agriculture and, therefore, the candidate

possessing qualification other than B.Sc. Agriculture cannot be declared

eligible on the ground that he possesses equivalent or higher than the

SWP No.2139/2013

prescribed qualification. I also find substance in the argument of learned

counsel for the respondents that the petitioner has sworn a wrong affidavit to

the extent that he was not employed either on contractual or ad hoc basis in

any other Government Department, whereas the fact remains that, at the time

of registration of Rehar-i-Zirat, he was already working as contractual teacher

in the Education Department.

14 The plea of equity raised by learned counsel for the petitioner on the

ground that the petitioner has been allowed to work as Rehar-i-Zirat by the

respondents for the last more than six years without there being any fault of the

petitioner, also cannot be entertained. The petitioner lacks basic eligibility for

the post and, therefore, cannot be regularized against a substantive post of

Village Agriculture Extension Assistant, unless he possesses the prescribed

qualification. The engagement of Rehbar-i-Zirat inadvertently offered to the

petitioner on the basis of his M.Sc. Agriculture (Plant Protection) was void ab

initio and in view of clear stipulation in the Rehbar-i-Zirat Scheme, it did not

confer any right on the petitioner to seek regularization.

For all these reasons, I find no merit in this petition. The same is,

accordingly, dismissed.

Interim directions, if any, shall stand vacated.

(SANJEEV KUMAR) JUDGE Srinagar 17 .11.2021 Sanjeev PS

Whether order is speaking:Yes Whether order is reportable:Yes