Jharkhand High Court
Chandra Shekhar Singh vs The State Of Jharkhand Through The ... on 2 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
-----
L.P.A. No. 244 of 2020
1.Chandra Shekhar Singh, aged about 28 years, resident
of village Rajupur, Post-Pachengara, Tehsil-Chunar, P.S.-
Adalhat, District-Mirzapur, State-Uttar Pradesh.
2.Bhola Shankar, aged about 37 years, S/o Kamdeo Nath
Mishra, Resident of Ratu Palace, P.O. & P.S.-Ratu,
District-Ranchi, Jharkhand -835222.
3.Ravi Shankar, aged about 32 years, S/o Shree
Rameshwar Vishwakarma, Nai Basti, Near IED Gah Kalpi
Road, Hamirpur, P.O. & P.S. -Hamirpur, District -
Hamirpur, State-Uttar Pradesh-210301.
4.Umesh Kumar, aged about 28 years, S/o Shiv Bharat
Sahu, Resident of Boreya Kanke, P.O. & P.S. - Kanke,
District-Ranchi, Jharkhand-834006.
... Appellants
Versus
1.The State of Jharkhand through the Chief Secretary,
Govt. of Jharkhand, having office at Project Building, P.O.
& P.S.-Dhurwa, District-Ranchi, Jharkhand
2.The Secretary, Personnel Administrative and Rajbhasa,
Govt. of Jharkhand, having office at Project Building, P.O.
& P.S.-Dhurwa, District-Ranchi, Jharkhand.
3.The Secretary, Department of Health, Medical
Education & Family Welfare, Govt. of Jharkhand, having
office at Ground Floor, Engineers Hostel-I Near
Golchakkar Dhurwa, P.O. & P.S.-Dhurwa, District-
Ranchi, Jharkhand.
4.The Director, Department of Health, Medical Education
& Family Welfare, Govt. of Jharkhand, having office at
Ground Floor, Engineers Hostel-I Near Golchakkar
Dhurwa, P.O. & P.S.-Dhurwa, District-Ranchi,
Jharkhand.
5.The Secretary, Jharkhand Public Service Commission,
having office at Circular Road, Kutchari, Jail More, P.O.
GPO P.S.-Kotwali, Circular Road, Ranchi, District-Ranchi-
834001, State-Jharkhand.
6.Controller of Examination, Jharkhand Public Service
Commission, having office at Circular Road, Kutchari, Jail
More, P.O. GPO P.S.-Kotwali, Circular Road, Ranchi,
District-Ranchi-834001, State-Jharkhand.
7.The Secretary, Govt. of India, Ministry of Human
Resources Development, Department of Higher Education,
Shastri Bhawan, P.O. & P.S. New Delhi, New Delhi-
110001.
8.The University Grants Commission through its
Secretrary ... Respondents
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
-------
For the Appellants : Mrs. Ritu Kumar, Advocate
Mr. Navin Kumar, Advocate
Mr. Samavesh Bhanj Devo, Advocate
Ms. Shatakshi, Advocate
For the State : Mr. Mrinal Kanti Roy, GA-I
Mr. Chandan Tiwari, AC to GA-I
For the JPSC : Mr. Sanjay Piprawall, Advocate
Mr. Prince Kumar, Advocate
For the UOI : Mr. Jitendra Tripathi, Advocate
For UGC : Mr. Laxman Kumar, Advocate
.....
C.A.V. on 18/07/2023 Pronounced on 02/08/2023
Per Sujit Narayan Prasad, J.:
The instant appeal, under clause 10 of the
Letters Patent, is directed against judgment/order dated
30.06.2020 passed by learned Single Judge in W.P. (S)
No. 5131 of 2018, by which the writ petition has been
dismissed declining to pass positive direction in favour of
writ petitioners for conducting interview of the petitioners
for the post of Food Safety Officer and declare their
results and further accept the petitioners‟ degree in
Masters as valid for appointment to the post of Food
Safety Officer.
2. Brief facts of the case, as per the pleading made
in the writ petition, read as under:
3. The Jharkhand Public Service Commission,
herein after referred to as the „JPSC‟, has come out with
an advertisement being Advertisement No. 01/2016,
inviting On-line applications for filling up 24 posts of Food
Safety Officers in the Department of Health, Medical
Education & Family Welfare, Govt. of Jharkhand. Clause
5 of the said advertisement, which is relevant to
adjudicate the lis, speaks about the essential educational
qualification and eligibility, which reads as under:
―A Degree in Food Technology or Dairy Technology or
Biotechnology or Oil Technology or Agriculture Science or
Veterinary Sciences or Bio-chemistry or Microbiology or Master
Degree in Chemistry or Degree in Medicine from a Recognized
University.‖
4. Petitioner Nos. 1, 3 and 4 have completed their
bachelor degree in „Science‟ whereas petitioner no. 2
competed his bachelor degree in „Pharmacy‟. After that the
petitioner No. 1 and Petitioner No. 3 completed their post-
graduation and awarded „Master degree in ‗Food Science
and Technology'; whereas Petitioner No. 2 and Petitioner
No. 4 completed the post-graduation degree and awarded
i.e., „Master degree in ―Microbiology".
5. With the above educational qualification, the
petitioners applied for the said post through on-line mode
and were allowed to participate in the process of selection.
They were declared successful in the written examination
and were called for interview. But the petitioners were
denied to undergo interview stating that since Petitioner
No. 1 and Petitioner No. 3 hold „Master degree in „Food
Science and Technology‟; and further Petitioner No. 2 and
Petitioner No. 4 holds „Master degree in "Microbiology", as
such they are not eligible to be considered for selection on
the post in question.
6. Aggrieved thereof, the petitioners approached
this Court by invoking writ jurisdiction of this Court
conferred under Article 226 of the Constitution of India,
by filing writ petition being W.P. (S) No. 5131 of 2018,
which was dismissed vide order dated 30.06.2020,
declining to pass any positive direction, against which the
instant intra-court appeal has been filed.
7. Mrs. Ritu Kumar, learned counsel for the
appellants has submitted that the Rules, basis upon
which the advertisement has been issued, is „Jharkhand
Food Safety and Standards Rules, 2011‟ [
, 2011] [hereinafter referred to as „Rules,
2011‟). Rule 2.1.3 thereof provides eligibility criteria for
the post of Food Safety Officer as ‗Post Gradation
Degree/Master Degree' in Food Technology of Microbiology
among other degrees, which the petitioners are
possessing.
8. For ready reference, Rule 2.1.3 of Rules, 2011
is quoted as under:
2-1-3
1- : औ
:
(i)
,
(ii) /
.
(iii) इ
इ
,
2. इ ,
, 1954
, .
/ , ,
, 1954
.
औ
औ 2औ 3
9. It has been contended that impugned
advertisement inviting applications is also having the
same educational and eligibility criteria as under Clause 5
i.e., „Degree‟ in Food Technology or Dairy Technology or
Biotechnology or Oil Technology or Agriculture Science or
Veterinary Sciences or Bio-chemistry or Microbiology or
Master Degree in Chemistry or Degree in Medicine from a
Recognized University, where the degree connotes „post-
graduation degree. Here, the „degree‟ construed post-
graduation degree.
10. It is the case of the writ petitioners that
Petitioner No. 1 and Petitioner No. 3 hold the „Master
degree in ‗Food Science and Technology'; whereas
Petitioner No. 2 and Petitioner No. 4 holds „Master degree
in ―Microbiology", therefore, they will be said to have
possessed the required educational qualification, and as
such, as per impugned advertisement, they are eligible to
be considered for the post of „Food Safety Officer‟.
11. Further, according to learned counsel, degree
since in the rule or advertisement has not been defined as
to whether degree will be construed to be „degree at
Graduation level‟ or „degree at Post Graduation/Master
level‟, therefore the appellants since are possessing the
Master degree in ‗Food Science and Technology'; and
„Master degree in ―Microbiology", they are be said to be
degree holder of the subject concerned and thereby are
eligible as per the condition as stipulated at Clause 5 of
the advertisement, but the learned Single Judge has not
appreciated the aforesaid fact rather the learned Single
Judge has not accepted the said argument on the ground
that the degree means „degree at graduation level‟. Hence,
the aforesaid finding is not sustainable in the eyes of law
in absence of any reference regarding „degree at
Graduation level‟ or „degree at Post Graduation/Master
level‟. Meaning thereby degree means „degree at post-
graduation level‟ also and as such the appellants are
eligible to be considered for their selection on the post in
question.
12. It has further been contended that initially the
application so submitted by the appellants had been
accepted and they were allowed to participate in the
process of selection and even declared successful in the
written examination and were called for interview but at
the time of interview their candidature have been rejected.
13. The question, therefore, has been raised that if
the appellants were not at all eligible then why they have
been allowed to participate in the process of selection. It
has been submitted that the learned Single Judge has
also not appreciated the aforesaid fact while rejecting the
prayer made by the writ petitioners, hence, the impugned
order requires interference by this Court.
14. Learned counsel for the appellants has relied
upon the judgment rendered by Hon‟ble Apex Court in the
case of Parvaiz Ahmad Parry Vs. State of Jammu and
Kashmir & Ors [(2015) 17 SCC 709].
15. Per contra, Mr. Sanjay Piprawall, learned
counsel for the respondents-JPSC has submitted that the
appellants are relying upon Rules, 2011 but the said Rule
will not govern the process of recruitment since the same
has been superseded by another recruitment Rule to be
known as „Jharkhand State Food Safety Service
(Recruitment, Promotion and other Service Condition) Rules,
2015‟ [hereinafter referred to as „Rules, 2015‟] enshrined
under proviso to Article 309 of the Constitution of India
issued by the Department of Health, Medical Education &
Family Welfare, Govt. of Jharkhand. Herein since the
advertisement is of the year 2016, therefore, Rules, 2015
will govern the field.
16. It has been contended that the Rules, 2015
contains a provision as under Clause 7(Kha)(1) wherein
educational and eligibility criteria for the post of „Food
Safety Officer‟, the post in question has been mentioned.
For ready reference, Clause 7(Kha)(1) is quoted
hereunder as:
7. ) :-
2011 - 2.1.3
:-
1. औ
:
(i)
(ii) इ
इ
"
17. The contention, therefore, has been raised that
in terms of the aforesaid rule, the advertisement has been
issued on the requisition made by the State inviting
application to fill up the post of „Food Safety Officer‟ from
the eligible candidate who possessed degree in Food
Technology or Dairy Technology or Biotechnology or Oil
Technology or Agriculture Science or Veterinary Sciences
or Bio-chemistry or Microbiology or Master Degree in
Chemistry or Degree in Medicine from a Recognized
University, as per condition no. 5 of the advertisement.
18. It has been contended that admittedly the writ
petitioners are not having the required educational
qualification at the graduate level rather they possess
degree at graduation level in different subjects i.e.,
Petitioner No. 1, 3 and 4 have completed their bachelor
degree in „Science‟ whereas petitioner no. 2 competed his
bachelor degree in „Pharmacy‟. Therefore, appellants since
are not possessing the degree in Food Technology or Dairy
Technology or Biotechnology or Oil Technology or
- 10 -
Agriculture Science or Veterinary Sciences or Bio-
chemistry or Microbiology or Master Degree in Chemistry
or Degree in Medicine from a Recognized University, as
stipulated in the impugned advertisement, as such they
are not eligible to hold the post.
19. It has been contended that the respondent-
recruiting agency taking into consideration these facts
rejected the candidature of the appellants, which cannot
be said to suffer from error for the reason that eligibility
criteria, which is being mentioned in the advertisement
based upon condition stipulated in Rules, 2015, has not
been fulfilled by the appellants.
20. Learned counsel for the respondents has
submitted that since appellants do not possess the
required educational qualification at the graduation level,
therefore, the learned Single Judge after taking into
consideration the aforesaid fact has dismissed the writ
petition, which cannot be said to suffer from error.
21. Learned counsel, giving response to the
submission of acceptance of application form of the
appellants at initial stage of selection process, has
submitted, by referring to the On-line application form,
wherein the reference of the degree has been shown in
Food Technology/Microbiology, by the appellants and
taking their statement to be true that the appellants are
- 11 -
possessing the required degree, their applications were
accepted at the primary level and in consequence thereof
they were allowed to participate in the process of selection
but when they were called for to participate in interview
their certificates were scrutinized, wherein it was found
that the appellants are not having the requisite degree as
required subject, as per Rules, 2015 or advertisement,
therefore the same has been considered to be
misrepresentation on the part of the appellants and
cancelled their candidature.
22. According to learned counsel since it is a case
of misrepresentation on the part of appellants, therefore,
if on that count their candidature has been accepted at
the initial stage and subsequent thereto when it came to
the knowledge of the recruiting agency that the appellants
do not possess the required educational qualification,
their candidature has been rejected, it cannot be said to
suffer from error.
23. Learned counsel for the respondent-JPSC on
the basis of aforesaid premise has submitted that the
learned Single Judge since has passed order on the
aforesaid legal premise that the appellants are not
possessing the educational qualification as per Rules,
2015 and the condition stipulated in the impugned
advertisement, which cannot be said to suffer from error.
- 12 -
24. So far as contention that the Post Graduation
degree may be considered to be Degree, the same is not
available to be raised by the appellants since the
condition as stipulated in the recruitment rule i.e., Rules,
2015, wherein in particular subject the degree has been
sought for i.e., in Food Technology or Dairy Technology or
Biotechnology or Oil Technology or Agriculture Science or
Veterinary Sciences or Bio-chemistry or Microbiology but
Master Degree in Chemistry or Degree in Medicine from a
Recognized University has been sought for, which itself
suggests that as per the requirement degree or post
graduation degree has been asked for. Therefore, the
condition as stipulated in recruitment rule as under Rule
7 and the condition stipulated in the advertisement itself
clarify difference in between degree to be construed to be
degree at graduation level and degree at post graduation
level is construed to be Master degree.
25. It has been submitted that the the learned
Single Judge has also taken note of this fact, basis upon
which declined to pass positive direction in favour of writ
petitioners, which cannot be said to suffer from error.
26. In support of his submission, learned counsel
for the State has put reliance upon the judgment
rendered in the case of State of Punjab & Ors Vs. Anita
& Ors [(2015) 2 SCC 170]; Prakash Chand Meena &
- 13 -
Ors Vs. State of Rajasthan & Ors [(2015) 8 SCC 484]
and the order passed by Co-ordinate Bench of this Court
rendered in the case of Manish Kumar & Ors Vs. The
State of Jharkhand & Ors [2020 2 JCR 464], wherein
almost identical nature of dispute has been decided i.e.,
regarding the eligibility criteria and the said order has
been affirmed by Hon‟ble Apex Court in Civil Appeal Nos.
2217-2218 of 2022 along with other analogous cases vide
judgment dated 13th April, 2022.
27. Learned counsel for the respondents on the
aforesaid premise has submitted that the impugned order
may not be inferred with.
28. We have heard learned counsel for the parties,
perused the documents available on record as also the
finding recorded by learned Single Judge in the impugned
order.
29. This Court, after considering the pleadings
available on record, is of the view that the core issues
which require to be answered are as to:
(I).Whether the word ‗Degree' will be construed herein to
be ‗Bachelor Degree' AND/OR ‗Post-Graduation Degree'?
(II).Whether the candidate having not possessed the
degree in Food Technology or Microbiology, as mentioned
in the advertisement, will be said to have possessed
requisite qualification, if they are having ‗Master degree in
- 14 -
‗Food Science and Technology'; and ‗Master degree in
―Microbiology, as the case herein?
(III).Whether the plea which is being taken on behalf of
appellants, if accepted by the Court of law, can it not be
said to be relaxation in the educational qualification?
(IV).Whether the rejection of candidature of the writ
petitioners on the ground of furnishing wrong details in
the on-line application can be said to be incorrect?
30. Since all the issues are inter-linked, therefore,
they are taken up together.
31. It appears from the pleading made in the writ
petition that advertisement was issued in the year 2016
being Advertisement No. 01/2016 inviting on-line
applications to fill-up the post of Food Safety Officer,
wherein the essential educational qualification and
eligibility has been mentioned at Clause No. 5, which is
Hindi and English. Admittedly, the appellant on the basis
of education qualification as mentioned at Clause No. 5 of
the advertisement filled up the On-line application form
for the post of Food Safety Officer.
32. For ready reference, at the cost of repetition,
the same is reproduced herein below:
5. :-
(i)
In English
- 15 -
A Degree in Food Technology or Dairy Technology or
Biotechnology or Oil Technology or Agriculture Science or
Veterinary Sciences or Bio-Chemistry or Microbiology or
Master Degree in Chemistry or Degree in Medicine from a
Recognized University.
ii इ
इ
,
33. However, when their candidatures have been
rejected at the stage of interview during scrutiny of their
testimonials by the examining body stating that they do
not possess the requisite qualification of degree in the
concerned subject rather they are having post-graduation
in the concerned subject, they approached this Court by
filing writ petition.
34. It requires to refer herein that the appellants
have appended Rules, 2011 with the paper book as
Annexure 5 in order to justify the qualification of the
appellants by taking note of Clause 2.1.3, wherein in
Hindi Version, the educational qualification is Post-
Graduation degree in Food Technology or Dairy
Technology or Biotechnology or Oil Technology or
Agriculture Science or Veterinary Sciences or Bio-
chemistry or Microbiology.
35. For ready reference, at the cost of repetition,
the same is reproduced hereunder as:
- 16 -
2-1-3
2- : औ
:
(ii)
,
(ii) /
.
(iii) इ
इ
,
2. इ ,
, 1954
, .
/ , ,
, 1954
.
औ
औ 2औ 3
36. However, when we verified the same from its
English version wherefrom it is evident that in Rule 2.1.3
of Rules, 2011 the qualification of Food Safety Officer has
- 17 -
been shown to be degree in food technology or
microbiology.
37. For ready reference, the same is reproduced
hereunder as:
2.1.3:Food Safety Officer
1.Qualification: Food Safety Officer shall be a whole time
officer and shall, on the date on which is so appointed,
possesses the following:
i. A Degree in Food Technology or Dairy Technology or
Biotechnology or Oil Technology or Agriculture Science or
Veterinary Sciences or Bio-chemistry or Microbiology or
Master Degree in Chemistry or Degree in Medicine from a
Recognized University, or to convert the post of Food
Inspector, or
ii. any other equivalent/recognized qualification notified
by the Central Government, and iii.has successfully
completed training as specified by the Food Authority in
a recognized institute or Institution approved for the
purpose. Provided that no person who has any financial
interest in the manufacture, import or sale of any article
of food shall be appointed to be a Food Safety Officer
under this rule.
2.On the date of commencement of these Rules, a person
who has already been appointed as a Food Inspector
under the provisions of Prevention of Food Adulteration
Act, 1954, may perform the duties of the Food Safety
Officer if notified by the State/Central government if the
officer fulfils such other conditions as may be prescribed
for the post of Food Safety Officer by the State
Government.
3.State Government, may in cases where a Medical
Officer of health administration of local area has been
performing the function of food Inspector under the
Prevention of Food Adulteration Act, 1954, assign the
powers and duties of Food Safety Officer to such Medical
Officer in charge of health administration of that area.
Provided that the persons appointed under Clause 2 and
- 18 -
3 above, shall undergo a specialized training laid down
by the Food Authority within a period of two years from
the commencement of these rules.‖
38. There is no explanation on behalf of
respondents in this regard as to condition stipulated in
Hindi Version of Recruitment Rules, 2011 is to be
accepted or English version of Rules, 2011 is to be
accepted.
39. Be that as it may, it requires to refer herein
that subsequent to Rule, 2011 the State of Jharkhand
has come out with another rule, in supersession to Rules,
2011 namely, Jharkhand State Food Safety Service
(Recruitment, Promotion and other Service Condition) Rules,
2015‟ enshrined under proviso to Article 309 of the
Constitution of India, wherein under Rule 7(ka), the
process of direct recruitment has been referred, which
contains a provision under 7(ka), as quoted above. The
law is well settled that the Rule, which is in-vogue on the
date of advertisement, will be applicable.
40. Herein, the advertisement has been published on
16.02.2016 and Rule, 2015 has been notified on 14.09.2015,
therefore, the recruitment process is to be conducted in terms
of provision of Rules, 2015 and accordingly conducted in
terms of Rules, 2015.
41. Appellants admittedly are having no degree at
bachelor/graduation level either in the subject of Food
- 19 -
Technology or Microbiology, as would appear from their
Graduation Certificate, as available at page 56-59 of the
paper book. Therefore, admitted position herein is that all
the appellants are having no degree in either Food
Technology or Microbiology at Graduation/Bachelor level.
However, the appellants are having with the Master
degree/Post-Graduation degree in Food Technology or
Microbiology.
42. Further admitted position is that on-line
applications were submitted by the appellants wherein
reference of educational qualification degree in Food
Technology or Microbiology has been referred, as would
appear from copy of On-line application appended at page
71 to 78 of the Paper Book.
43. It further appears from the on-line application
form that in the column of educational qualification, in
education column there is mention of 10th, 12th and
Degree. The aforesaid stage of passing of the examination
does reflect and gives an impression that the appellants
are having 10th, 12th and degree (at +3 level) in Food
Technology/Microbiology. The educational qualification
10th stipulates that the candidate has passed class 10th;
12th stipulates that the candidate has passed 12th
examination and thereafter the degree will be said to be
passing of examination at graduation level. The post-
- 20 -
graduation will after completion of +3 Course i.e., after
graduation or bachelor‟s degree but the writ petitioners
have furnished their educational qualification to be degree
in Food Technology/Microbiology though they possess
post graduation in Food Technology/Microbiology. This
fact clarifies the intention of the appellants that they
consciously has not disclosed their educational
qualification stage wise i.e., on the basis of 10+2+3
pattern, reason being that if such declaration would have
been there, then their candidature would have been
rejected at the threshold but the appellants in order to
create an impression that they possess degree at
graduation level has furnished wrong information that
they possess degree in Food Technology/Microbiology at
graduation/bachelor/+3 level.
44. Therefore, the contention which has been made
on behalf of appellants that once the application has been
accepted the same ought not to have been rejected is
having no force since the same will only be applicable if
the candidature offered by one or the other candidates
with bona fide intention; meaning thereby if the
description of level of the education would have been
furnished in the on-line form rightly their candidature
would have been rejected initially.
- 21 -
45. However, the learned counsel for the appellant
has tried to explain that since in on-line form only three
stages of the educational qualification has been referred,
therefore, post-graduation degree in Food Technology has
been referred at third stage.
46. But the said explanation is not acceptable to
this Court reason being even the on-line application
requires the educational qualification either in Food
Technology or Microbiology at graduate level i.e., at +3
level/stage otherwise, in the on-line application there
would not have been reference of only three column i.e.,
10th, 12th and degree.
47. This Court, therefore, is of the view that the
appellants have misled the recruiting agency and in
consequence thereof their applications have been
accepted at the primary level, for which the recruiting
agency cannot be faulted with.
48. The position of law is well settled that if any
decision has been taken illegally and the moment it came
to the knowledge of the competent authority the same is
to be set at right on the principle that the illegality cannot
be allowed to be perpetuated.
49. Reference in this regard be made to the
judgment rendered in the case of State of Orissa and
Anr. vs. Mamata Mohanty, (2011) 3 SCC 436, wherein
- 22 -
the Hon‟ble Apex Court has been pleased to hold that if
any illegality has been committed, the same is to be
rectified the moment it came to the notice of the
authorities and if such exercise would not be resorted, it
will amount to perpetuating the illegality. The Hon‟ble
Apex Court in the said judgment, at paragraphs 56 and
57 has been pleased to hold as under:-
―56.It is a settled legal proposition that Article 14 is not
meant to perpetuate illegality and it does not envisage
negative equality. Thus, even if some other similarly
situated persons have been granted some benefit
inadvertently or by mistake, such order does not confer
any legal right on the petitioner to get the same relief.
(Vide Chandigarh Admn. v. Jagjit Singh, Yogesh Kumar
v. Govt. of NCT of Delhi, Anand Buttons Ltd. v. State of
Haryana, K.K. Bhalla v. State of M.P., Krishan Bhatt v.
State of J&K, Upendra Narayan Singh and Union of
India v. Kartick Chandra Mondal.)
57.This principle also applies to judicial
pronouncements. Once the court comes to the conclusion
that a wrong order has been passed, it becomes the
solemn duty of the court to rectify the mistake rather
than perpetuate the same. While dealing with a similar
issue, this Court in Hotel Balaji v. State of A.P. observed
as under: (SCC p. 551, para 12) ―12. ... ‗2. ... To
perpetuate an error is no heroism. To rectify it is the
compulsion of judicial conscience. In this, we derive
comfort and strength from the wise and inspiring words
of Justice Bronson in Pierce v. Delameter at p. 18: ―a
Judge ought to be wise enough to know that he is fallible
and, therefore, ever ready to learn: great and honest
enough to discard all mere pride of opinion and follow
truth wherever it may lead: and courageous enough to
acknowledge his errors‖.
- 23 -
50. Likewise, the Hon‟ble Apex Court in Union of India
& Anr. v. Narendra Singh, (2008) 2 SCC 750, at
paragraph 32 held as under:
―32.It is true that the mistake was of the Department
and the respondent was promoted though he was not
eligible and qualified. But, we cannot countenance the
submission of the respondent that the mistake cannot be
corrected. Mistakes are mistakes and they can always
be corrected by following due process of law. In ICAR v.
T.K. Suryanarayan it was held that if erroneous
promotion is given by wrongly interpreting the rules, the
employer cannot be prevented from applying the rules
rightly and in correcting the mistake. It may cause
hardship to the employees but a court of law cannot
ignore statutory rules."
51. Herein, in the given facts of the case the
appellants have furnished details about their educational
qualification in three stages even though reference of
degree is there, by taking note of 10+2+3 Course but
consciously in the +3 level/stage the reference of
possessing post-graduation degree in Food Technology
and Microbiology has been furnished, which this Court
considers to be with ulterior motive and hence the
appellants cannot be allowed to take advantage of this.
52. As such, when at the stage of interview it came
to the knowledge of examining body that the appellants
have furnished wrong educational qualification, their
candidature have been rejected, it does not amount to
illegality committed on the part of respondent-authority.
- 24 -
53. Herein, the issue of relaxation in rule is also
one of the questions for consideration coupled with
interpretation of word „degree‟ as contained in recruitment
rule vis-à-vis advertisement.
54. It is settled position of law that the Court of law
cannot grant any relaxation in the conditions stipulated
in the advertisement, as has been held by Hon'ble Apex
Court in the case of Bedanga Talukdar Vs. Saifudullah
Khan & Ors reported in AIR 2012 SC 1803 wherein at
paragraph nos. 28 and 29 it has been held as under:
"28.We have considered the entire matter in detail. In our
opinion, it is too well settled to need any further reiteration
that all appointments to public office have to be made in
conformity with Article 14 of the Constitution of India. In
other words, there must be no arbitrariness resulting from
any undue favour being shown to any candidate.Therefore,
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. There can not be any relaxation in the terms
and conditions of the advertisement unless such a power is
specifically reserved. Such a power could be reserved in the
relevant Statutory Rules.Even if power of relaxation is
provided in the rules, it must still be mentioned in the
advertisement. In the absence of such power in the Rules, it
could still be provided in the advertisement. However, the
power of relaxation, if exercised has to be given due
publicity. This would be necessary to ensure that those
candidates who become eligible due to the relaxation, are
afforded an equal opportunity to apply and compete.
Relaxation of any condition in advertisement without due
- 25 -
publication would be contrary to the mandate of quality
contained in Articles 14 and 16 of the Constitution of India.
29.A perusal of the advertisement in this case will clearly
show that there was no power of relaxation. In our opinion,
the High Court committed an error in directing that the
condition with regard to the submission of the disability
certificate either along with the application form or before
appearing in the preliminary examination could be relaxed in
the case of respondent No. 1. Such a course would not be
permissible as it would violate the mandate of Articles 14
and 16 of the Constitution of India."
55. It is thus evident that if in the advertisement there is
no power of relaxation the same cannot be allowed to be
extended.
56. This issue has further been settled by Hon'ble Apex
Court in the case of Bihar Public Service Commission &
Ors vs. Kamini and Ors reported in (2007) 5 SCC 519,
wherein the issue fell for consideration before the learned
Single Judge of the Hon'ble Patna High Court pertaining to
consideration of candidature, who have participated in the
process of selection in an advertisement, which contains
the minimum qualification of B.Sc. Zoology with two years'
diploma in Fisheries Science from Central Institute of
Fisheries Education, Mumbai or a graduate degree in
Fisheries Science (BFSC) from a recognized university of
M.Sc. (Inland Fisheries Administration and Management)
with Zoology from the Central Institute of Fisheries
Education, Mumbai and when the candidature of the
- 26 -
candidate in the said case not been considered due to lack
of educational eligibility criteria, the matter went before the
Hon'ble Patna High Court wherein the learned Single
Judge has dismissed the writ petition but the same has
been reversed by the Division Bench in Letters Patent
Appeal, against which, the Bihar Public Service
Commission has approached to the Hon'ble Apex Court
wherein their Lordship at paragraph 5 has been pleased to
hold that if the eligibility educational criteria was BSc,
Zoology, such person must have passed B.Sc. Zoology as
principal/main subject and not as a subsidiary or optional
subject.
57. It has further been held that the Court of law has no
jurisdiction to interfere and encroach upon the views
expressed by the expert committee. The expert committee
in the aforesaid case has opined that the student would be
called graduate in the subject if he/she has Honours in
that subject at graduate level, meaning thereby it must be
the principal subject. The aforesaid opinion of the expert
committee was accepted by the Hon'ble Apex Court.
58. For ready reference, paragraph nos. 5, 7 and 8 of the
aforesaid judgment are quoted hereunder as:
"5.The learned counsel for the appellant submitted that the
Division Bench of the High Court was wholly wrong in
allowing the appeal and in setting aside the order passed
by the learned Single Judge and in ignoring the report
submitted by the Expert Committee. He also submitted that
- 27 -
even otherwise, the action of the Commission could not be
said to be illegal or contrary to law. When the requisite
educational qualification was BSc, Zoology, such person
must have passed BSc with Zoology as principal/main
subject and not as a subsidiary or optional subject.
Admittedly, the first respondent had passed BSc with
Chemistry as principal subject and Zoology as
optional/subsidiary subject. She, therefore, could not be
held qualified and the action of the Commission was in
consonance with law and was legal and proper. It was also
submitted that after the representation was received from
the first respondent, the Commission constituted an Expert
Committee for considering the grievance of the first
respondent and even the Expert Committee opined that in
its opinion i.e. in the opinion of the Committee, a student
would be called graduate in the subject if he/she has
Honours in that subject at the graduate level. If the subject
is subsidiary (or side subject), he/she could not be called a
graduate in that subject. It was because an Honours
student at the graduate level studies eight papers in that
subject whereas he/she studies only two papers in
subsidiary subject. In accordance with the report, the action
was taken which was proper. The counsel also submitted
that the learned Single Judge was wholly right in upholding
the contention of the Commission that the first respondent
could not be said to be BSc Honours in Zoology and
dismissed the petition. The Division Bench was in error in
setting aside the said order which deserves interference.
7.Having heard learned counsel for the parties, in our
opinion, the appeal deserves to be allowed. The
advertisement is explicitly clear and states that the
candidate must be Honours in BSc, Zoology. It is not in
dispute that the first respondent has obtained BSc degree
with first class but her main subject was Chemistry of eight
papers of 800 marks and in addition to Chemistry, she had
two papers of Zoology and Botany. In pursuance of the
advertisement, which was clear, the first respondent was
not eligible for the appointment to the post of District
Fisheries Officer. In spite of that, she applied for the said
- 28 -
post. True it is that initially a letter was issued by the
Commission on 17-10-2002 calling upon her to appear
before the Commission for interview. It was, however, a
mistake on the part of the Commission. As soon as the
appellant Commission realised that the first respondent
was not having requisite qualifications for the post and was
not eligible, her candidature was rejected. When a
representation was made by the first respondent that
cancellation of her candidature was not proper and that the
decision should be reconsidered by the Commission, the
Commission thought it fit to look into her grievance and an
Expert Committee was appointed. The Expert Committee
considered the question and submitted a report on 24-11-
2002, inter alia, stating that in its ―considered opinion‖, a
student would be called a graduate in the subject if he/she
has Honours in the subject at the graduate level, meaning
thereby that it must be the principal subject. In our opinion,
such a decision could not be said to be contrary to law.
8.Again, it is well settled that in the field of education, a
court of law cannot act as an expert. Normally, therefore,
whether or not a student/candidate possesses requisite
qualifications, should better be left to educational
institutions (vide University of Mysore v. C.D. Govinda
Rao1). This is particularly so when it is supported by an
Expert Committee. The Expert Committee considered the
matter and observed that a person can be said to be
Honours in the subject if at the graduate level, he/she
studies such subject as the principal subject having eight
papers and not a subsidiary, optional or side subject having
two papers. Such a decision, in our judgment, cannot be
termed arbitrary or otherwise objectionable. The learned
Single Judge, in our opinion, was, therefore, right in
dismissing the petition relying upon the report of the
Committee and in upholding the objection of the
Commission. The Division Bench was in error in ignoring the
well-considered report of the Expert Committee and in
setting aside the decision of the learned Single Judge. The
Division Bench, while allowing the appeal, observed that
the ―litmus test‖ was the admission granted to the first
- 29 -
respondent by the Central Institute of Fisheries Education,
Mumbai. According to the Division Bench, if the first
respondent did not possess Bachelor of Science degree with
Zoology, the Institute would not have admitted her to the
said course. The Division Bench observed that not only the
first respondent was admitted to the said course, she had
passed it with ―flying colours‖. In our opinion, the Division
Bench was not right in applying ―litmus test‖ of admission
of the first respondent by the Central Institute of Fisheries
Education, Mumbai. The controversy before the Court was
whether the first respondent was eligible for the post of
District Fisheries Officer, Class II. The correct test, therefore,
was not admission by the Mumbai Institution. If the
requirement was of Honours in BSc with Zoology and if the
first respondent had cleared BSc Honours with Chemistry,
it could not be said that she was eligible to the post having
requisite educational qualifications. By not treating her
eligible, therefore, the Commission had not committed any
illegality."
59. It has been held by Hon‟ble Apex Court in the
judgment rendered in Zahoor Ahmad Rather &Ors Vs.
Sheikh Imtiyaz Ahmad & Ors [(2019) 2 SCC 404], at
paragraph 27 that while prescribing the qualification for a
post the State as employer may legitimately bear in mind
several features including the nature of 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 service.
- 30 -
For ready reference, the relevant paragraph of
the judgment is quoted as under:
23. The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public
Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S)
664] arises from a case where the Public Service Commission
had invited applications to the post of a Sub-Engineer
(Electrical) in the Kerala State Electricity Board. The
qualifications prescribed for the post were:
―2***
1. SSLC or its equivalent.
2. Technical qualifications--
(a) Diploma in Electrical Engineering of a recognised
institution after 3 years' course of study,
OR
(b) a certificate in Electrical Engineering from any one of
the recognised technical schools shown below with five
years' service under the Kerala State Electricity Board,
***
OR
(c) MGTE/KGTE in electrical light and power (higher)
with five years' experience as IInd Grade Overseer
(Electrical) under the Board.‖
The appellants were holders of a B. Tech. degree in
Electrical Engineering or a Bachelor's degree in Electrical
Engineering. The Public Service Commission held that they
were not eligible for selection. Rule 10(a)(ii) of the Kerala
State and Subordinate Services Rules, 1958 contained the
following stipulation:
―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.‖
24. A two-Judge Bench of this Court, while construing Rule
10(a) held thus : (Jyoti K.K. [Jyoti K.K. v. Kerala Public
- 31 -
Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC
(L&S) 664] , SCC pp. 598-99, paras 7-8)
―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 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.‖
The Court also noted that there was no exclusion of
candidates who possessed a higher qualification.
25. The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public
Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC
(L&S) 664] has been considered in a judgment of two
learned Judges in State of Punjab v. Anita [State of
Punjab v. Anita, (2015) 2 SCC 170 : (2015) 1 SCC (L&S)
329] . In that case, applications were invited for JBT/ETT
qualified teachers. Under the rules, the prescribed
- 32 -
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 MCom could not be treated
as a ―higher qualification‖. Adverting to the decision in Jyoti
K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010)
15 SCC 596 : (2013) 3 SCC (L&S) 664] , this Court noted
that Rule 10(a)(ii) in that case clearly stipulated that the
possession of a higher qualification can presuppose 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 [State of
Punjab v. Anita, (2015) 2 SCC 170 : (2015) 1 SCC (L&S)
329] , SCC p. 177, para 15)
―15. It was sought to be asserted on the basis of the
aforesaid observations, that since the private respondents
possess higher qualifications, then the qualification of
JBT/ETT, they should be treated as having fulfilled the
qualification stipulated for the posts of JBT/ETT Teachers.
It is not possible for us to accept the aforesaid submission
of the learned counsel for the private respondents,
because the statutory rules which were taken into
consideration by this Court while recording the aforesaid
observations inJyoti K.K. case [Jyoti K.K. v. Kerala Public
Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC
(L&S) 664] , permitted the aforesaid course. The statutory
rule, in the decision relied on by the learned counsel for the
private respondents, is extracted hereunder : (SCC p. 598,
para 6)
‗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 Standing Orders of Government as
equivalent to a qualification specified for a post in the
Special Rules [Ed. : The matter between two asterisks has
been emphasised in original.] and such of those higher
qualifications which presuppose the acquisition of the lower
- 33 -
qualification prescribed for the post shall also be sufficient
for the post. [Ed. : The matter between two asterisks has
been emphasised in original.] '
(emphasis supplied)
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 authorising the
appointment of persons with higher qualifications.‖
(emphasis supplied)
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 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
- 34 -
[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 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.
60. The Hon‟ble Apex Court in the case of Prakash
Chand Meena & Ors Vs. State of Rajasthan & Ors
(Supra) while considering issue involved therein with
respect to qualification of candidate had held that the
candidates who were aware of the advertisement and did
- 35 -
not have the qualification of CPEd also had two options,
either to apply only for PTI Gr. II if they had the necessary
qualification for that post or to challenge the
advertisement that it omitted to mention equivalent or
higher qualification along with qualification of CPEd for
the post of PTI Gr. III. Having not challenged the
advertisement and having applied for the other post, they
could not have subsequently claimed or be granted
eligibility on the basis of equivalence clarified or declared
subsequently by the State Government.
61. For ready reference, paragraph 2, where the
fact of the case in question and paragraph 9 where the
finding of Hon‟ble Apex Court has been given is quoted as
under:
2. The facts necessary for deciding the main issue noted above
are as follows. Rajasthan Public Service Commission
(hereinafter referred to as ―the Commission‖) published an
advertisement dated 3-9-2008 inviting applications for
recruitment to the post of PTI Gr. II under Code No. 35 and PTI
Gr. III under Code No. 36. The educational qualification for
posts under Codes Nos. 35 and 36 were indicated separately
and read thus:
―(i) Graduate or equivalent examination with Diploma in
Physical Education OR Secondary examination with four years'
Diploma in Physical Education.
(ii) Working knowledge of Hindi written in Devnagri script and
knowledge of Rajasthan culture.
The educational qualification for posts under Code No. 36 read
thus:
(i) Senior Secondary Certificate of Board of Secondary
Education recognised by the Government of Rajasthan and
- 36 -
Secondary or equivalent examination recognised by the
Government of Rajasthan with five subjects, three of them
should be Mathematics, English and Hindi with Certificate in
Physical Education.
(ii) Working knowledge of Hindi written in Devnagar script and
knowledge of Rajasthan culture.
Special note in the advertisement indicated that in
Column 11 of OMR application the post of Code No. 35 or Code
No. 36 had to be mentioned and separate applications had to
be submitted for the two different categories of posts. Through
a press note issued on 22-9-2009, the Commission informed
the applicants to indicate the post code clearly in the OMR
application and in the event of any error in specifying the post
code, the result of such candidate shall be cancelled.
9. The candidates who were aware of the advertisement and
did not have the qualification of CPEd also had two options,
either to apply only for PTI Gr. II if they had the necessary
qualification for that post or to challenge the advertisement
that it omitted to mention equivalent or higher qualification
along with qualification of CPEd for the post of PTI Gr. III.
Having not challenged the advertisement and having applied
for the other post, they could not have subsequently claimed or
be granted eligibility on the basis of equivalence clarified or
declared subsequently by the State Government. In the matter
of eligibility qualification, the equivalent qualification must be
recognised as such in the recruitment rules or government
order existing on or before the initiation of recruitment process.
In the present case, this process was initiated through
advertisement inviting application which did not indicate that
equivalent or higher qualification holders were eligible to apply
nor were the equivalent qualifications reflected in the
recruitment rules or government orders of the relevant time.
62. It is, thus, evident from the aforesaid judicial
pronouncement that the eligibility criteria is exclusive
domain of the State authority/appointing body and if the
same has been prescribed the same is required to be
- 37 -
mandatorily followed without granting any relaxation in
case of non-availability of any clause of relaxation.
63. The reference of the aforesaid judgment is
being made herein for the specific purpose that if this
Court goes to the conclusion that the reference of word
„degree‟ made in the rule/advertisement, if not construed
to be degree at graduation level then what would be the
position and if in that circumstance the candidature of
the appellants will be directed to be accepted then
certainly it will be said to be deviation from the
recruitment rule or condition stipulated in the
advertisement, in other sense, it will amount to giving
relaxation to such candidates, which is not permissible in
the eyes of law, as per law laid down by Hon‟ble Apex
Court as discussed above.
64. Now the core question which requires to be
adjudicated is that the word „degree‟ will be construed to
be the degree at graduation level and/or post-graduation
level?
65. This Court on going through the aforesaid
condition as stipulated under Clause 7(ka) coupled with
the condition of the advertisement wherein the reference
of the word „degree‟ has been made i.e., degree in Food
Technology or Dairy Technology or Biotechnology or Oil
Technology or Agriculture Science or Veterinary Sciences
- 38 -
or Bio-chemistry or Microbiology but along with same
Master Degree in Chemistry has also been made.
66. Thus, it is evident that in the aforesaid
rule/condition of advertisement the word „degree‟ has
been referred in isolation so far it relates to degree in Food
Technology or Dairy Technology or Biotechnology or Oil
Technology or Agriculture Science or Veterinary Sciences
or Bio-chemistry or Microbiology is concerned; but for
master degree it is specifically mentioned „master in
chemistry‟.
67. The degree admittedly can be at graduation
level or post-graduation level, as per the reference to that
effect made by the University Grant Commission in the
affidavit filed by it supported by the documents.
68 We are not in dispute that the degree can be at
graduation level and also at post-graduation level but the
requirement of the degree as to the degree in particular
subject is required at the graduation level or post-
graduation level is to be seen from the stipulation so
made in the rule and the condition of advertisement.
69. The word „degree‟ has not been defined in
relevant recruitment rule but it is self-explanatory from
the rule itself where the „Degree' in Food Technology or
Dairy Technology or Biotechnology or Oil Technology or
Agriculture Science or Veterinary Sciences or Bio-
- 39 -
chemistry or Microbiology has been sought whereas
'Master Degree' in Chemistry has been sought for;
meaning thereby, if a candidate is having master degree
in chemistry he will be eligible to participate in the
process of selection but such availability is not for a
candidate who have degree (graduation degree) in
chemistry; Likewise candidates having master degree in
Food Technology or Microbiology is not requirement here,
rather, the requirement for such candidate is that they
must possess „degree‟ in the Food Technology or
Microbiology at the graduation level.
70. For the discussion made hereinabove, in our
considered view there is no ambiguity about requirement
of graduation degree in certain subject [Food
Technology/Microbiology] and in Chemistry there is
requirement of Master Degree (post-graduation degree).
71. The matter would have been different if there
was no reference of word „master‟ with the degree in
„chemistry‟ then it could be understood that the degree
means either graduation or post graduation but that is
not the case herein, as would be evident from the rule and
the condition stipulated in the advertisement from bare
perusal of which, it is evident that there is requirement of
„degree' in Food „Technology‟ or „Dairy Technology‟ or
„Biotechnology‟ or „Oil Technology‟ or „Agriculture Science‟
- 40 -
or „Veterinary Sciences‟ or „Bio-chemistry‟ or „Microbiology‟
has been sought for while „master degree' in „chemistry‟
has been sought for by one or the other candidate by way
of educational qualification.
72. Further, the ambiguity in the Statute has to be
tested from the word itself as per the law laid down by
Hon‟ble Apex Court, reference in this regard be made in
the case of R.S. Nayak v. A.R. Antulay, [(1984) 2 SCC
183], in particular 18, relevant of which is quoted as
under:
18.Re. (a): ..... If the words of the statute are clear and
unambiguous, it is the plainest duty of the court to give
effect to the natural meaning of the words used in the
provision. The question of construction arises only in the
event of an ambiguity or the plain meaning of the words
used in the statute would be self-defeating. ..‖
73. This Court, on the basis of aforesaid
discussion, is of the view that there is no ambiguity either
in the provision of law prescribing educational
qualification or in the advertisement hence requires no
interpretation by the Court of law.
74. This Court, on the basis of aforesaid principle
laid down by Hon‟ble Apex Court and in the judgment
referred hereinabove and coming to the provision of law
coupled with the educational qualification, is of the view
that the degree in „Food Technology‟ or „Microbiology‟ will
be construed to be degree at the graduation level. Such
- 41 -
conclusion is being arrived at on the basis of fact that in
the same condition the reference of Master degree in
Chemistry is also there.
75. The intention of the legislature is very clear
that by inserting the word master degree in chemistry
which clarifies that master degree in chemistry is required
while in other subject it is only at graduation
degree/bachelor degree. Therefore, this Court is of the
view that aforesaid condition is having no ambiguity.
76. Further, the appellants were also fully
conscious of the said fact and that is the reason they have
disclosed their qualification to have degree in Food
Technology/Microbiology while they were not having
degree in Food Technology or Microbiology at the graduate
level rather petitioner Nos. 1, 3 and 4 have completed
their bachelor degree in „Science‟ whereas petitioner no. 2
competed his bachelor degree in „Pharmacy‟.
77. The aforesaid fact has been clarified
hereinabove while considering the explanation furnished
by the appellant that in the on-line form there are only
three stages of qualification i.e, 10th, 12th and Degree and
that is the reason in the degree head the Food
Technology/Microbiology has been furnished but the said
explanation has not been accepted by us for the reason
that the appellants were not having degree in Food
- 42 -
Technology/Microbiology and when it is stipulated at the
+3 stage, which is under the education system of the
State is known to be graduation under the 10+2+3
course, they ought to have given description of degree at
graduate level.
78. This Court is now proceeding to consider that if
the candidature of the writ petitioners-appellants will be
considered will it not be allowing deviation from the
condition stipulated in the rule/advertisement.
79. It is settled position of law that if the condition
has been stipulated in the advertisements, it cannot be
deviated in any way and if any deviation would be made it
amounts to relaxation, which is not permissible in law, as
per the law laid down in the case of Bihar Public Service
Commission & Ors Vs. Kamini Devi (supra), wherein it
has been held that if any decree is required in a particular
subject at Graduate Level, the degree must be in the said
subject by way of principal subject and not as a
subsidiary subject.
80. Since the law has been settled in the case of
Bihar Public Service Commission & Ors vs. Kamini
and Ors (supra) wherein it has been held that if a degree
is required in a particular subject at graduate level the
degree must be in the said subject by way of principal
subject and not by way of subsidiary subject, herein,
- 43 -
admittedly the writ petitioners are having no graduation
degree in Food Technology or Microbiology, rather they
are having post-graduation degree in the said subject,
therefore, we are of the view after having answered the
issue of the meaning of degree to be at graduation level
that the appellants are not possessing the required
educational qualification at the graduation level,
therefore, if their candidature will be accepted the same
will amount to granting relaxation which is not
permissible in the eye of law, as per law laid down by
Hon‟ble Apex Court in the case of Bedanga Talukdar v.
Saifudullah Khan & Ors. [supra], wherein it has been
laid down that there cannot be any relaxation in the
terms and conditions contained in the advertisement
unless the power of relaxation is duly indicated in the
advertisement and/or if there is power of relaxation in the
said rules, the same would still have to be specifically
indicated in the advertisement.
81. One identical issue fell for consideration before this
Court in Manish Kumar & Ors Vs. The State of
Jharkhand & Ors (supra), wherein the issue was that
the subject „History‟ and issue of consideration was as to
whether „History‟ means some of the streams of history or
history subject in entirety. The co-ordinate Bench of this
- 44 -
Court while discussing the issue at length has come to
the conclusion that history means „history in entirety‟.
82. The aforesaid judgment was challenged before
Hon‟ble Apex Court by filing Civil Appeal Nos. 2217-
2218 of 2022 along with other analogous cases which
was dismissed vide judgment dated 13th April, 2022
affirming the order passed by the co-ordinate Division
Bench of this Court. The Hon‟ble Apex Court while
affirming the order passed by Division Bench has held „
that for both the posts namely Postgraduate Trained
Teachers (History) and Graduate Trained Teachers
(History/Civics), a candidate must have the
Postgraduate/Bachelor degree in „History‟ as a whole.
83. For ready reference, paragraph‟ 6, 6.1, 6.3, 6.5
and 6.7 are quoted as under, for consideration of the facts
of the present case.
―6. At the outset, it is required to be noted that in the present
appeals, the dispute is with respect to the posts namely,
Postgraduate Trained Teacher in History and Graduate
Trained Teachers in History/Civics. As per the State, so far as
the G.T.T. is concerned, the requirement was a combination of
History/Civics. As per the advertisement, a candidate must
have the Postgraduate/Bachelor degree in the subject History.
So far as the G.T.T. is concerned, the educational qualifications
required was Bachelor degree in ‗History' as well as Political
Science as the requirement was for History/Civics. Therefore,
for both the posts namely the Postgraduate Trained Teachers
(History) and Graduate Trained Teachers (History/Civics), a
candidate must have the Postgraduate/Bachelor degree in
‗History' as a whole.
- 45 -
6.1 We have gone through the degrees/ certificates in the case
of the respective writ petitioners. It appears that the respective
writ petitioners have obtained the Postgraduate degrees/
Bachelor degrees, as the case may be, in one of the branches
of History, namely, Indian Ancient History, Indian Ancient
History and Culture, Medieval / Modern History, Indian
Ancient History, Culture and Archaeology. In our view,
obtaining the degree in one of the branches of History cannot
be said to be obtaining the degree in History as a whole. As a
History teacher, he/she has to teach in all the subjects of
History, namely, Ancient History, Indian Ancient History and
Culture, Medieval / Modern History, Indian Ancient History,
Culture and Archaeology etc. Therefore, having studied and
obtaining the degree in only one branch of History cannot be
said to be having a degree in History subject as a whole,
which was the requirement. All the relevant aspects have been
considered and gone into in detail by the learned Single Judge
meticulously.
6.2 Now, so far as the reliance placed upon the decision of the
learned Single Judge of the Jharkhand High Court in Writ
Petition No.1130 of 2017 - Hari Sharma and Ors. Vs. State of
Jharkhand is concerned, it is to be noted that the said decision
of the learned Single Judge has been stayed by the Division
Bench in appeal and the decision is pending. Even the
controversy in the said writ petition before the learned Single
Judge was with respect to combination post namely,
―History/Civics‖ and there was no specific controversy like in
the present case.
6.3 It is also required to be noted that all the posts advertised
have been filled in and the respective teachers are working.
6.5 As per the settled proposition of law, in the field of
education, the Court of Law cannot act as an expert normally,
therefore, whether or not a student/candidate is possessing
the requisite qualification should better be left to the
educational institutions, more particularly, when the Expert
Committee considers the matter.
6.7 As observed hereinabove in the online applications, it was
stated by the respective petitioners that they are having the
Postgraduate/Bachelor degree in History and only at the time
- 46 -
of verification of the documents, when the respective
certificates were produced, at that time only, the authorities
came to know that the respective writ petitioners have the
degrees in one branch of History and not in History as a whole
and therefore the show-cause notices were issued so that the
respective petitioners can clarify and satisfy that they are
having the requisite qualification of Postgraduate/Bachelor
degree in History and after giving them the opportunity, the
decision has been taken and that too after obtaining the Expert
Committee's opinion.
84. It appears from the impugned order that reason
has been assigned that once a candidate participates in
the selection process he cannot be allowed to turn
around by questioning the condition of advertisement or
seeking interpretation thereof. The aforesaid
consideration has been given on the basis of factual
aspect wherein the writ petitioners are now claiming the
„degree‟ at post-graduation level in „Food Technology‟ or
„Microbiology‟ to be treated as degree. But once the on-
line application has been filled up giving therein the
reference of degree at the +3 level, the same itself clarify
that the writ petitioners were having no eligibility criteria
to hold the post due to lack of educational qualification
in the concerned subject i.e., Degree in Food Technology
or Dairy Technology or Biotechnology or Oil Technology
or Agriculture Science or Veterinary Sciences or Bio-
chemistry or Microbiology or Master Degree in Chemistry
or Degree in Medicine from a Recognized University.
- 47 -
Therefore, the writ petitioners were declared
unsuccessful and only after that the writ petition was
filed, which is not permissible on the principle that once
participated in the process of selection and declared
unsuccessful such candidate cannot be allowed to turn
around and question the terms and conditions of the
advertisement or its interpretation.
85. Reference in this regard be made to be
judgment rendered by Hon‟ble Apex Court in the case of
Dr. G. Sarana Vs. University of Lucknow & Ors.
reported in (1976) 3 SCC 585. For ready reference,
paragraph 15 of the said judgment is quoted hereunder
as:
"15.We do not, however, consider it necessary in the present
case to go into the question of the reasonableness of bias or
real likelihood of bias as despite the fact that the appellant
knew all the relevant facts, he did not before appearing for the
interview or at the time of the interview raise even his little
finger against the constitution of the Selection Committee. He
seems to have voluntarily appeared before the Committee and
taken a chance of having a favourable recommendation from
it. Having done so, it is not now open to him to turn round and
question the Constitution of the Committee. This view gains
strength from a decision of this court in Manak Lal's case
where in more or less similar circumstances, it was held that
the failure of the appellant to take the identical plea at the
earlier stage of the proceedings created an effective bar of
waiver against him. The following observations made therein
are worth quoting:
It seems clear that the appellant wanted to take a
chance to secure a favourable report from the tribunal
which was constituted and when he found that he was
- 48 -
confronted with unfavourable report, he adopted the
device of raising the present technical point."
86. Likewise, the Hon‟ble Apex Court in the case of
Omprakash Shukla Vs. Akhilesh Kumar Shukla and
Ors. reported in (1986) (supp) SCC 285, has held that if
a candidate had appeared in the examination without
protest, he cannot invoke the jurisdiction of the High
Court under Article 226 realizing that he would not
succeed in the examination.
87. Further reference in this regard is made to the
judgment rendered by the Hon‟ble Supreme Court in the
case of Marripati Nagaraja & Ors Vs. Govt of Andhra
Pradesh and Ors. reported in (2007) 11 SCC 522
wherein it has been held that if the appellants had
appeared at the examination without any demur, they
did not question the validity of fixing of the said date
before the appropriate authority, therefore, they were
estopped and precluded from questioning the selection
process.
88. In the judgment rendered by the Apex Court in
the case of Vijendra Kumar Verma vs. Public Service
Commission, Uttarakhand and Ors. reported in (2011)
1 SCC 150 at paragraph 24 it has been held that
"....All the candidates knew the requirements of the selection
process and were fully aware that must possess the basis
knowledge of computer operation meaning thereby Microsoft
Operating System and Microsoft Office Operation. Knowing the
- 49 -
said criteria, the appellants also appeared in the interview,
faced the questions from the expert of computer application and
has taken a chance and opportunity therein without any
protest at any stage and now they cannot turn back to state
that the aforesaid procedure adopted was wrong and without
jurisdiction."
89. This Court, in view of the settled position of
law, as has been decided in the judgments referred
herein above, is of the view that at this stage the writ
petitioners-appellants cannot be allowed to question the
terms of the advertisement and further there is no
question to allow the writ petitioners-appellants to raise
this issue of „no equivalent clause‟ since this was not
raised by the writ petitioners-appellants before the
learned Single Judge.
90. Learned counsel for the appellants has relied
upon the judgment rendered in Parvaiz Ahmad Parry
Vs. State of Jammu and Kashmir & Ors (supra) in
particular paragraph 31, but we on consideration of the
facts involved herein are of the view that the description
of the qualification which is in the exclusive domain of
the State and if any condition is being inserted the same
is the requirement and the candidate who has to
participate in the process of selection has mandatorily
required to possess the educational qualification.
91. Now coming back to the order passed by
learned Single Judge, wherefrom it is evident that by
- 50 -
considering the fact in entirety and by making
observation therein that once the writ petitioners had
appeared in the examination without any protest and
they did not question the validity of advertisement, in
that view of the matter they are stopped from questioning
the process of selection. The aforesaid finding recorded to
our considered view cannot be said to suffer error.
92. This Court on the basis of discussion made
hereinabove is of the view that the order passed by
learned Single Judge requires no interference.
93. Accordingly, the instant appeal fails and is
dismissed.
I.A. No. 5240 of 2023
94. The instant interlocutory application has been
filed for stay of further proceedings of advertisement no.
18/2023 issued by Jharkhand Public Service
Commission for appointment of 56 posts of Food Safety
Officer.
95. It has been submitted that at present six posts
of Food Safety Officer are vacant and if those posts are
filled up, the instant intra-court appeal will become
infructuous, therefore, prayer has been made to stay the
proceedings of advertisement no. 18/2023.
96. This Court, taking into consideration the fact
that since the appellants do not possess the requisite
- 51 -
educational qualification, as stipulated in advertisement
no. 1/2016, as such they are not entitled for any relief.
97. In view thereof, I.A. No. 5240 of 2023 stands
rejected.
L.P.A. No. 244 of 2020
98. Pending Interlocutory Applications stand
disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Subhash Chand, J.) (Subhash Chand, J.)
Jharkhand High Court, Ranchi
Alankar / A.F.R.
