Madhya Pradesh High Court
Ishwar Prasad Pandey vs The State Of Madhya Pradesh on 14 November, 2022
Author: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 14th OF NOVEMBER, 2022
WRIT PETITION No. 14565 of 2008
BETWEEN:-
ISHWAR PRASAD PANDEY S/O S/O SHRI
TILAKNAND PANDEY, AGED ABOUT 56 YEARS,
OCCUPATION: LAB ATTENDANT T.R.S.COLLEGE
REWA. R/O BODA BAG REWA. DISTT. REWA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI DILEEP PANDEY, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH HIGHER
EDU.DEPTT. VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. C O M M I S S I O N E R HIGHER EDUCATION
SATPURA BHAVAN, BHOPAL (MADHYA
PRADESH)
3. PRINCIPAL T.R.S. COLLEGE, REWA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SUBODH KATHAR, GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner has filed this petition praying for following relief:-
"7.1 That, by issuance of writ in the nature of Mandamus,
Hon'ble Court may be pleased to command the respondents to promote
the petitioner on the post of Laboratory Assistant since when he
completed the five years of his services as Laboratory Attendant and
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further be pleased to grant all the consequential benefits including
arrears thereon.
7.2 Any other writ, direction or order as may be deemed fit
and proper also be given together with awarding of cost of the
proceeding."
The facts, as incorporated in the memorandum of writ petition reflect that
the petitioner herein was appointed as a contingency employee vide order dated
26.10.1967 contained in Annexure-P/1. Thereafter, petitioner was promoted as
Laboratory Attendant vide order dated 06.11.1984 contained in Annexure-P/2.
When some of the similarly situated employee were extended the benefit of
promotion against the post of Laboratory Assistant, upon completion of five
years of service as Laboratory Assistant, the petitioner also made a
representation when the said representations were not paid any heed to found,
the petitioner shall filed this petition.
Learned counsel for the petitioner contends that the requisite qualification
for being considered for promotion against the post of Laboratory Attendant is
Higher Secondary with Science subject or any equivalent examination having
passed from any recognized institute or Board.
The counsel contends that the petitioner has passed Uttar Madhyama
from Awadhesh Pratap Singh University, Rewa and as per the certificate dated
09.10.1990 (Annexure-R/2) the course of Uttar Madhyama is treated equivalent
to Higher Secondary Examination (10+2) conducted by the Madhya Pradesh
Board. The counsel submits that the qualification which the petitioner possess
being equivalent with the one which is stipulated in Schedule 3-B of the Madhya
Pradesh Non-Gazetted Class-III Services (Collegiate Branch) Recruitment and
Promotion Rules, 1974, the petitioner ought to have been considered for
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promotion against the post of Laboratory Assistant, inasmuch as the similar
benefit was extended to as many as nine employees which is evident from the
perusal of Annexure-P/3 dated 04.08.2006. The counsel also contends that the
issue is no more res integra inasmuch as this Court in 2014 (1) MPLJ 180
Dhani Ram Vs. State of M.P. on a similar set of facts where the employee
concerned having passed the Higher Secondary Examination with Arts subject,
held to be entitled for promotion against the post of Laboratory Technician and,
therefore, submits that the respondent now are duty bound to consider the case
of the petitioner for promotion against the post of Laboratory Assistant.
Per contra, Shri Kathar, Advocate submits that the petitioner does not
possess the requisite qualification which is provided in Schedule 3-B of the
Rules of 1974. The counsel also submits that the prescribed qualification
requires that the candidate should possess Higher Secondary passed certificate
along with Science subject whereas the petitioner in the present case has
qualified Uttar Madhyama and it is also contended by Shri Kathar that the
petitioner has qualified the said examination with Sanskrit subject, therefore,
firstly the petitioner has not passed Higher Secondary Examination and
secondly, even the Uttar Madhyama certificate also does not pertains to science
subject, therefore submits that the petitioner is not entitled for being considered
for promotion against the post of Laboratory Assistant. The counsel also while
taking this Court to paragraph 4 of the return submits that it is the employer
who has to judge the suitability of an employee for promotion within the scope
and ambit of statutory rules and since in the present case, the petitioner does
not possess the requisite qualification provided in Rules of 1974, the petitioner
is not entitled for relief as are being sought for in the petition thus, submits that
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no interference is warranted.
Having heard the rival submissions of the parties and perused the record.
In order to deal with the controversy and questions, it would be germane
to first reproduce the conditions as regard eligibility criteria as stipulated in
Schedule 3-B of the Rules of 1974.
"foKku fo"k; ds lkFk mPprj ek/;fed vFkok led{k ijh{kk mRrh.kZ tks fd
fdlh ekU;rk izkIr f'k{kk e.My ;k fo'ofo|ky; }kjk lapkfyr gqbZ gSA"
It is further important to take into consideration the following column
no.4 of the same Schedule.
"fuEufyf[kr ,d vkSj fVIi.kh vafdr dh tk;s] vFkkZr- 4. iz;ksx'kkyk
lgk;d ds in ij inksUufr ds fy;s iz;ksx'kkyk ifjpkjd ds ikl iz;ksx'kkyk
lgk;d ds in ij fu;qfDr ds fy;s vuqlwfp 3 (c) es mfYyf[kr 'kS{kf.kd vgZrk
gksuk vfuok;Z gSA"
Therefore, in terms of the statutory provisions contained in the Rules of
1974, the eligibility criteria for promotion against the post of Laboratory
Assistant is the candidate should possess Higher Secondary passed certificate
along with Science subject or should possess equivalent certificate issued by
any recognized Board or the University. The petitioner in the present case does
not possess Higher Secondary passed certificate along with Science subject,
the petitioner in his possession as Uttar Madhyama (two years) course
certificate with subject Sanskrit. Undisputedly, the petitioner does not possess
Higher Secondary passed certificate nor any certificate with Science subject. It
is also not disputed that the petitioner is seeking promotion against the post of
Laboratory Assistant and, therefore, the petitioner in order to substantiate his
claim is required to explain and establish that the certificate which is in
possession of the petitioner and contained in page 22 and 23 of the return is
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equivalent to a Higher Secondary passed certificate with Science subject. The
judgment of this Court in Dhaniram Dubey (supra) also does not come to the
rescue of the petitioner inasmuch as the said judgment is distinguishable. In said
case, it was not a dispute that the employee concerned did not possess Higher
Secondary School Certificate, on the contrary, in that case, the employee had
passed Higher Secondary Certificate Examination with subject Arts but in the
present case, the petitioner does not even possess the Higher Secondary
Certificate and, therefore, the reliance has placed on the decision of Dhaniram
Dubey (supra) is misplaced.
So far as, the petitioner contention as regards Annexure R-2 dated
09.10.1990 which is a certificate issued by Awadhesh Pratap Singh University,
Rewa is concerned, in the considered view of this Court to judge equivalence
the employer is best suited.
The question of taking a decision on equivalence is whether available in
excise of judicial review or not came into consideration before the Apex Court
in the case of Maharashtra Public Service Commission vs. Sandeep
Shriram Warade and Others reported in (2019) 6 SCC 362, the Apex
Court in paragraph 9 has held as under:
"9. The essential qualifications for appointment to a post are for the
employer to decide. The employer may prescribe additional or desirable
qualifications, including any grant of preference. It is the employer who is
best suited to decide the requirements a candidate must possess according
to the needs of the employer and the nature of work. The court cannot lay
down the conditions of eligibility, much less can it delve into the issue with
regard to desirable qualifications being on a par with the essential
eligibility by an interpretive re-writing of the advertisement. Questions of
equivalence will also fall outside the domain of judicial review. If the
language of the advertisement and the rules are clear, the court cannot sit
in judgment over the same. If there is an ambiguity in the advertisement or
it is contrary to any rules or law the matter has to go back to the
appointing authority after appropriate orders, to proceed in accordance
with law. In no case can the court, in the garb of judicial review, sit in the
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chair of the appointing authority to decide what is best for the employer
and interpret the conditions of the advertisement contrary to the plain
language of the same."
The Apex Court again in the case of Zahoor Ahmad Rather and Ors.
vs. Sheikh Imitiyaz Ahmad and Ors. reported in (2019) 2 SCC 404 in
paragraph 26 has held as under:
"26. We are in respectful agreement with the interpretation which has
been placed on the judgment in Jyoti K.K. v. Kerala Public Service
Commission, (2010) 15 SCC 596 in the subsequent decision in State of
Punjab v. Anita, (2015) 2 SCC 170. The decision in Jyoti K.K. v. Kerala
Public Service Commission, (2010) 15 SCC 596 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. v. Kerala
Public Service Commission, (2010) 15 SCC 596 turned on a specific
statutory rule under which the holding of a higher qualification could
presuppose the acquisition of a lower qualification. The absence of such a
rule in the present case makes a crucial difference to the ultimate
outcome. In this view of the matter, the Division Bench [Imtiyaz Ahmad v.
Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017
(J&K)] of the High Court was justified in reversing the judgment [Zahoor
Ahmad Rather v. State of J&K, 2017 SCC OnLine J&K 936] of the
learned Single Judge and in coming to the conclusion that the appellants
did not meet the prescribed qualifications. We find no error in the decision
[Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017,
decided on 12-10-2017 (J&K)] of the Division Bench."
Even otherwise, in the considered view of this Court, the Apex Court in
the case of North Delhi Municipal Corporation vs. Kavinder and Ors.
reported in (2021) 11 SCC 353 has held that the employer is best suited to
adjudge equivalence. The Apex Court in paragraph 9 has held as under:-
"9. The first respondent completed the MBA degree
programme from Maharshi Dayanand University, Rohtak. The
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mark-sheets which have been relied upon by the first
respondent indicate that during the course of the second
semester, he studied Human Resource Management as a
subject. In the fourth semester, the first respondent had a
course in Industrial Relations and Labour Legislation.
Studying these two subjects would not lead to the conclusion
that the first respondent holds a postgraduate degree or
diploma in the disciplines which have been specifically spelt
out in the advertisement or in any allied subject. The MBA
degree cannot be regarded as allied to a postgraduate degree
or diploma in Social Work, Labour Welfare, Industrial
Relations or Personnel Management. The recruitment was
being made to the service of the appellant. The advertisement
did not specifically provide how equivalence was to be
established between a postgraduate degree/diploma in the
subjects specified in the advertisement and a postgraduate
degree/diploma in an allied subject. The appellant as an
employer was best suited to judge whether the degree of the
first respondent was in an allied subject. U n l ess this
assessment was perverse or contrary to the requirements
prescribed, the Tribunal had no reason to interfere. We are of
the view that the Tribunal was manifestly in error in holding
that the first respondent was qualified merely because he
studied two subjects as a part of his MBA degree programme,
namely, Human Resource Management and Industrial
Relations and Labour Legislation. The High Court has simply
affirmed the view of the Tribunal."
In view of the aforesaid, the respondent's stand that if the requisite
qualification of Higher Secondary passed certificate with Science subject is
placed juxtaposition with the certificate issued to the petitioner pertaining to
Uttar Madhyama course, the same would reveal that on the strength of the
certificate which are contained at page No.22 and 23 of the return the petitioner
cannot claim the benefit while contending that the petitioner possess an
Educational qualification which is equivalent to the one which is stipulated in
Schedule 3-B of the Rules of 1974, does not require interference as employer is
best judge to decide equivalence.
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Signed by: APARNA TIWARI
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Therefore, in the considered view of this Court, accordingly, the
petitioner since has failed to establish his case as regards promotion against the
post of Laboratory Assistant, the present petition being misconceived deserves
to be and accordingly dismissed.
(MANINDER S. BHATTI)
JUDGE
AT
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Signed by: APARNA TIWARI
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