WPSS/1937/2019
2022 Latest Caselaw 1243 UK

       IN THE HIGH COURT OF UTTARAKHAND
                                 AT NAINITAL
              ON THE 20TH DAY OF APRIL, 2022
                                     BEFORE:
       HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
             Writ Petition (S/S) No. 1936 of 2019

BETWEEN:
Gaurav Kumar.                                                            ...Petitioner
AND:
State of Uttarakhand & others.                                    ...Respondents
                                           With

             Writ Petition (S/S) No. 1937 of 2019


BETWEEN:
Jyoti Joshi.                                                           .....Petitioner

AND:

State of Uttarakhand & others.                                     ...Respondents

                                           With

             Writ Petition (S/S) No. 2413 of 2019

BETWEEN:
Jagdish Giri Goswami.                                                  .....Petitioner
       (By Anil Kumar Joshi, Advocate)



AND:
State of Uttarakhand & others.                                     ...Respondents
       (By Mr. Yogesh Pandey, Additional Chief Standing Counsel for the State of
       Uttarakhand/respondent nos. 1 & 2 and Mr. Pankaj Purohit, Advocate for respondent no. 3)



                                           With

             Writ Petition (S/S) No. 2122 of 2019

BETWEEN:
Manoj Kumar.                                                           .....Petitioner
       (By Mr. B.N. Molakhi, Advocate)


AND:
State of Uttarakhand & others.                                     ...Respondents
       (By Mr. Yogesh Pandey, Additional Chief Standing Counsel for the State of
       Uttarakhand/respondent nos. 1 & 2 and Mr. Pankaj Purohit, Advocate for
       respondent no. 3)


                                  JUDGMENT

Heard learned counsel for the parties

2. Since common questions of law and fact are involved in these writ petitions, therefore are being taken up together and are being decided by this common judgment. However, for the sake of brevity, facts of WPSS No. 1936 of 2019 are being considered.

3. Petitioner participated in a selection held by Uttarakhand Subordinate Service Selection for the post of Computer Programmer/cum Operator and was declared as successful. Petitioner appeared before the selecting body for document verification, however, his name was not included in the final select list published on 19.06.2018. Petitioner, thereafter, filed writ petition, which was disposed of by this Court vide order dated 29.04.2019. Operative portion of the said order is reproduced below:

"Accordingly, the writ petitions are disposed of with liberty to petitioners to make representation to Secretary, Technical Education, Uttarakhand/ respondent no. 1 within two weeks from today. Secretary, Technical Education, Uttarakhand/ respondent no. 1 shall examine the matter and take appropriate decision by passing a speaking order in accordance with law, within six weeks from the date of receipt of representations alongwith certified copy of this order and appropriate order shall be passed by the respondents within two weeks thereafter."

4. Pursuant to the said order, petitioner made a representation, which has been rejected by Additional Chief Secretary, Technical Education Department, Government of Uttarakhand vide order dated 19.07.2019. Feeling aggrieved by rejection of his claim for appointment, petitioner has approached this Court seeking the following reliefs:

"i) Issue a writ of certiorari to quash the impugned rejected dated 19.7.2019 passed by Additional Chief Secretary/Secretary, Technical Education, Government of

to this writ petition).

ii) Issue a writ order or direction in the nature of mandamus commanding the respondents to appoint the petitioner on the post of Computer Programmer-cum Operator in the Technical Education Department."

5. Petitioner contends that since he possesses B.Tech. Degree in Computer Science & Engineering in addition to one year Diploma in Computer Application, therefore, he could not have been non-suited for appointment. Learned counsel for the petitioner submits that even if the Diploma possessed by petitioner is ignored, then also petitioner is eligible for appointment by virtue of possessing B.Tech. Degree in Computer Science & Engineering, which is higher than Diploma in Computer Application. The qualification needed for the post in question i.e. Computer Programmer/Operator is given in Appendix-II to the Statutory Rules known as "Uttarakhand Technical Education Department (Non-Gazetted Technical) Service Rules, 2008, which is reproduced below:-

Appendix-II Sl. Name of Post Essential Requisite Qualification Age limit No.

11. Computer Bachelor and recognized 21-35 Programmer/Operator Diploma in Computer years Application of minimum one year from Govt. of India/State Govt.

                                  Or
                                  Recognized Diploma in any
                                  discipline   of     Engg.    And
                                  Recognized        Diploma       in
                                  Computer       Application     of
                                  minimum one year from Govt.
                                  of India/State Govt.



6.             From       the    Appendix-II         of    the     relevant

recruitment Rules, it is apparent that, for appointment to the post in question, one should have Bachelor's Degree in any branch with Diploma in Computer Application of minimum one year duration and such Diploma should be recognized by Central/State

Government. Besides the above qualification, a person with Diploma in any discipline in Engineering with recognized Diploma in Computer Application of minimum one year duration, is also eligible for appointment to the post in question. There is no dispute regarding validity of B.Tech. Degree in Computer Science & Engineering possessed by the petitioner, however, validity of Diploma in Computer Application possessed by the petitioner is under cloud.

In the impugned order, it has been held that there is no material to show that one year Diploma in Computer Application issued to the petitioner by some private institution in Almora, is valid or not. Nothing has been brought on record by the petitioner to dispel the doubt over validity of his Diploma, therefore, this Court has no other option, but to treat the Diploma possessed by the petitioner to be not from a recognized institution.

7. Mr. Anil Kumar Joshi, learned counsel appearing for petitioner submits that qualification needed for the post in question is Diploma in Computer Application; while, petitioner possess B.Tech. Degree in Computer Science & Engineering, therefore, rejection of petitioner's candidature on the ground of lack of educational qualification, is unjust & illegal.

8. The said submission made on behalf of the petitioner cannot be accepted. The Recruitment Rules provide that one with Diploma from a recognized institution would be eligible for appointment, provided he has Degree in any subject or Diploma in any branch of Engineering. Thus, a person, who meets both the conditions, would be eligible, namely, besides having Diploma in Computer Application, he should also possess a Bachelor's Degree in any subject or Diploma

in any branch of Engineering. Since Diploma possessed by the petitioner is not from a recognized institution, therefore, petitioner is ineligible for appointment, as he cannot be appointed only on the strength of B.Tech. Degree possessed by him, even though B.Tech. Degree may be treated as higher qualification than Diploma.

9. Even otherwise also, as per the Rules, basic qualification needed for the post in question is Diploma in Computer Application. It is not provided anywhere that a person with higher qualification may also be treated as eligible. In such view of the matter, petitioner cannot be appointed merely because he is B.Tech. in Computer Science & Engineering. This aspect has been dealt with by Hon'ble Supreme Court in the case of Zahoor Ahmad Rather and others v. Sheikh Imtiyaz Ahmad and others, reported in (2019) 2 SCC 404. Relevant extract of the said judgment is reproduced below:-

"23. The decision in Jyoti K.K.5 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."

(emphasis supplied)

24. A two-Judge Bench of this Court, while construing rule 10(a) held thus: (Jyoti K.K.5, 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.5 has been considered in a judgment of two learned Judges in State of Punjab v. Anita7. In that case, applications were invited for JBT/ETT qualified teachers. Under the rules, the prescribed qualification for a JBT teacher included a Matric with a two years' course in JBT training and knowledge of Punjabi and Hindi of the Matriculation standard or its equivalent. This Court held that none of the respondents held the prescribed qualification and an MA, MSc or MCom could not be treated as a "higher qualification". Adverting to the decision in Jyoti K.K.5, 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 case7, 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 in Jyoti K.K. case5, 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 *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.*' (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)

10. Learned counsel for the petitioner has placed reliance upon the judgment rendered by Division Bench of this Court in Special Appeal No. 349 of 2018 in support of his contention that Degree in Computer Science is higher qualification compared to Diploma in Computer Application. However, the said contention is unacceptable in view of the judgment rendered by Hon'ble Supreme Court in the case of Zahoor Ahmad Rather & others (SUPRA). Learned counsel for the petitioner has laid emphasis on the expression 'minimum' in the service Rules for contending that Diploma in Computer Application is the minimum qualification required for appointment to the post, therefore, anyone who possesses a higher qualification can also be appointed. The said submission is bereft of merit, as expression 'minimum' used in service Rules refers to the duration of the Diploma course and it cannot be interpreted so as to make Degree holders eligible. On careful perusal of the relevant Rule, it becomes apparent that one must possess Diploma in Computer Application from a recognized institution and the duration of Diploma Course

should not be less than one year. In such view of the matter also, rejection of petitioner's claim for appointment cannot be faulted.

11. I have gone through the impugned order dated 19.07.2019 passed by Additional Chief Secretary. The Additional Chief Secretary has given valid reason to hold that petitioner is not eligible for appointment to the post in question. It has been stated that the Diploma in Computer Application possessed by the petitioner is not from a recognized institution. In the absence of any material to dispel the doubt created in the impugned order regarding Diploma possessed by the petitioner, this Court is not persuaded to take a different view in the matter.

12. In such view of the matter, the writ petitions fail and are dismissed. No order as to costs.

(MANOJ KUMAR TIWARI, J.) Navin