Uttarakhand High Court

WPSS/1132/2020 on 18 August, 2022

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL
                      SRI JUSTICE VIPIN SANGHI, C.J.
                                  AND
                       SRI JUSTICE R.C. KHULBE, J.

18th August, 2022 WRIT PETITION (S/S) NO. 1132 OF 2020 Between:

Jitendra Lesiyal and others. .....Petitioners.

And

Uttarakhand Public Service Commission and others.

....Respondents

Counsel for the petitioners : Mr. Abhijay Negi, learned counsel.

Counsel for the respondents         :   Mr. B.D. Kandpal, learned counsel for
                                        the   Uttarakhand    Public  Service
                                        Commission.
                                        Mr. K.N. Joshi, learned Deputy
                                        Advocate General for the State of
                                        Uttarakhand.

Upon hearing the learned Counsel, the Court made the following

JUDGMENT : (per Sri Vipin Sanghi, C.J.)

We have heard the learned counsel, and

proceed to the judgment.

2. We may reproduce the order dated 5th October,

2020, passed by this Court in the present proceedings,

since that order encapsulates the relevant facts, and the

issue, which arises for consideration in the present case:-

"By means of present petition, petitioners have sought following relief:

(i) Issue a writ, order or direction in the nature of certiorari quashing the list dated 7th January, 2020 qua the petitioners, inasmuch as it disqualifies them from appearing for the mains examinations.

(ii) Issue a writ, order or direction in the nature of mandamus, directing the Uttarakhand Public Service Commission to permit the petitioners to appear in the main examinations.

(iii) Issue a writ, order a direction in the nature of mandamus directing the Uttarakhand Public Service Commission to postpone the mains examination by a period as deemed fit by this Hon'ble Court to allow a level playing field for the petitioners & the other students from the hilly areas of the State of Uttarakhand.

(iv) To hold that the condition requiring one year compute certification from a Government recognized Institution/University, is read down to include a computer course administrated from any institution, equivalent to that of a Government recognized institution, in the light of Government itself maintaining no list of institution/Universities of this kind.

Brief facts of the case are that the respondent no.1 issued an advertisement dated 31.07.2017 inviting applications for the post of Additional Private Secretary in Uttarakhand Secretariat and Uttarakhand Public Service Commission. As per advertisement, the essential qualification for the aforesaid posts are that the candidates should possess a bachelor's degree from the University established by law or a qualification recognized by the Government as equivalent thereto and one year computer certificate course from any recognized institute or university established under the law or graduation with the subject of computer science.

Learned counsel for the petitioners would submit that pursuant to the said advertisement petitioners have also applied for the said posts. They appeared in the preliminary examination in which they were declared successful but at the time of final examination, the petitioners are not permitted to appear on the ground that the petitioners have not completed one year computer certificate course from a recognized institute or university. He would further submit that the petitioners have submitted the certificate of one

year computer course. However, it is contended that the certificate of the petitioners are not recognized from a Government institute as per the advertisement dated 31.07.2017. He would further submit that in this regard a letter has been written by the Secretary, Government of Uttarakhand to the Secretary, Public Service Commission stating therein that there is no recognized institutions/universities in the State of Uttarakhand, which runs one year computer certificate course. It is contended that the respondents are adopting pick and choose policy by permitting only those candidate for final examination who have passed the computer certificate course from UP HILL Electronics Corporation Limited known as HILTRON CALC Institute. He would further submit that the mains examination is scheduled to be held on 08.10.2020.

Per contra, Mr. B.D. Kandpal learned counsel appearing for the Commission would submit that the Hiltron Calc Institute is a Government undertaking, therefore, there is no need for it to obtain any recognition from the State Government. He would further submit that the petitioners have participated in the selection process and have not challenged the validity of the rules and conditions of the advertisement at the time of their participation. Having heard learned counsel for the parties and perused the material available on record.

The State Government itself has admitted in its letter dated 06.09.2018 that as yet there is no list of any institution/university, which is recognized university/institutions which imparts one year computer course. Meaning thereby, that when no Government recognized institute is available in the State of Uttarakhand, which is conducting such one year computer certificate course, thus, the act of respondent no.1 is contrary to the law as the candidate who have obtained one year certificate course in computer from the HILTRON CALC are permitted for mains examination whereas the petitioners are being discriminated. Thus, the act of the respondent no.1 is discriminatory and violative of Article 14 and 16 of Constitution of India.

It is not the case of the respondents that any institute recognized by the State Government is providing one year computer certificate course in the State at present. After the petitioners were declared successful in preliminary examination, rejecting their candidature by the respondent for mains examination on the ground that they do not

possess one year computer certificate course from any recognized institution/university, prima facie appears to be unjustified and wholly illegal on the part of the respondents.

Having heard learned counsel for the parties and after going through the material available on record, as an interim measure, it is directed that the respondent no.1 shall permit the petitioners to participate in the final examination. However, the participation of the petitioners in the said examination shall be subject to the final outcome of the writ petition.

Interim relief application no. 7912 of 2020 stands disposed of accordingly.

Learned counsel for the respondents seeks and is granted four weeks' time to file counter affidavit.

In the counter affidavit, respondent no.1 shall annex the copies of the certificates of one year computer certificate course of those candidates who were declared successful and are permitted by it to participate in mains examination.

Let certified copy of this order be supplied to learned counsel for the parties today itself on payment of usual charges."

3. In terms of the direction issued by this Court on

05.10.2020, respondent No. 1 has filed a detailed counter-

affidavit. In compliance with the direction issued to

respondent No. 1 to place on record copies of Certificates

of one-year computer certificate courses of the candidates

who were declared successful, and are permitted by

respondent No. 1 to participate in mains examination,

respondent No. 1 has placed along with its affidavit,

Certificates of all those candidates, who were permitted to

participate in the mains examination. These certificates

have been issued, inter alia, by the following Institutes,

amongst others:-

"(1) Electronics Service & Training Centre (Govt. of India Society, Ministry of Micro, Small & Medium Enterprises) at Uttarkashi. (2) Diploma in Computer Applications, Business Accounting and Multilingual D.T.P. issued by N.I.E.L.I.T. (National Institute of Electronics and Information Technology) (An Autonomous Body of Department of Electronics & Information Technology, Ministry of Communications & Information Technology, Government of India).

(3) Electronics Service & Training Centre (Govt. of India Society, Ministry of Micro, Small & Medium Enterprises) at Dehradun.

(4) U.P. Hill Electronics Corporation Limited (Uttarakhand Government Undertaking) (HILTRON CALC).

(5) Uttarakhand Takniki Vishvidhyalaya. (6) Electronics Service & Training Centre (Govt. of India Society, Ministry of Micro, Small & Medium Enterprises) at New Tehri (Baurari). (7) Makhanlal Chaturvedi Rashtriya Patrakarita Vishwavidyalaya Sansthan, Bhopal.

(8) DOEACC Society (An autonomous body of Department of Information Technology, Ministry of Communications & Information Technology, Govt. of India).

(9) Electronics Service & Training Centre (Govt. of India Society, Ministry of Micro, Small & Medium Enterprises) at Bhaniyawala. (10) Government of India, Ministry of Skill Development and Entrepreneurship, National Council for Vocational Training.

(11) C-DAC, GIST PACE Programme.

(12) Hemwati Nandan Bahuguna Garhwal Vishwavidyalaya.

(13) Kumaun University.

(14) Calorx Teachers' University, Ahmedabad, Gujarat (State Private University established by State Legislature of Gujarat Act No. 8 of year 2009).

(15) Indira Gandhi National Open University."

4. The submission of Mr. Abhijay Negi, the learned

counsel for the petitioner, is that the requirement in the

advertisement with regard to the essential qualification

was not adhered inasmuch, as, the same provided "Hkkjr esa

fof/k }kjk LFkkfir fdlh fo'ofo|ky; ls Lukrd dh mikf/k ;k ljdkj }kjk mlds led{k

ekU;rk izkIr vgZrk gksuk vko';d gS rFkk ljdkj }kjk ekU;rk izkIr fdlh [email protected]

fo'ofo|ky; ls 01 o"khZ; dEI;wVj ikB~;dze dk izek.k i=A" (emphasis supplied)

5. Mr. Abhijay Negi has placed reliance on the

Communication dated 08.05.2018, addressed by the

Uttarakhand Public Service Commission to the

Government, and the Communication dated 06.09.2018,

addressed by the Secretary to the Government of

Uttarakhand to the Secretary, Uttarakhand Public Service

Commission, to submit that there were no government

recognized courses of one-year duration in the subject of

Computers. In this regard, specific reliance is placed on

Paragraph-3 of the Communication dated 06.09.2018,

which reads as follows:-

"3& vkids i= esa fcUnq la[;k 01 "ljdkj }kjk ekU;rk izkIr leLr laLFkkuksa @ fo'ofo|ky;ksa dh lwph" ds laca/k esa voxr djkuk gS fd dfri; foHkkxksa ls i=ksa ds ek/;e ls iz'uxr lwpuk izkIr dh x;hA ftlds dze esa rduhdh f'k{kk foHkkx }kjk voxr djk;k x;k fd rduhdh f'k{kk ds vUrxZr lapkfyr mRrjk[k.M izkfof/kd f'k{kk ifj"kn~ :M+dh ls lEcö jktdh;@ jktdh; lgk;rk izkIr ,oa futh {ks= ds ikWfyVSfDudksa esa ,d o"khZ; dEI;wVj ikB~;dze dk dksbZ izek.k i= tkjh ugha fd;k tkrk gSA lwpuk izks|ksxdh foHkkx ds vUrxZr fgYV~zku }kjk dEI;wVj izf'k{k.k ds {ks= esa o"kZ 1991 ls pyk;h tk jgh dSYd ;kstuk ds rgr orZeku esa 40 dSYd dEI;wVj izf'k{k.k dsUnzksa dks lapkfyr fd;k tk jgk gS ¼lwph layXu½ ftlesa izfro"kZ 2000 ls vf/kd Nk=&Nk=k,as rhu ekg] N%ekg rFkk ,d o"khZ; ikB~;dzeksa esa izf'k{k.k izkIr djrs gSA fgYV~zku }kjk lapkfyr ikB~;dzeksa dks

iwoZ esa dEI;wVj foHkkx] vkbZ-vkbZ-Vh- :M+dh ,oa dEI;wVj foHkkx dkyst vkWQ VSDuksykWth] iUruxj fo'ofo|ky;] iUruxj }kjk validate fd;k x;k gSA ljdkj }kjk ekU;rk fo"k;d dksbZ ekud lwph laKku esa ugha gSA"

(Underlining Supplied)

6. We have consciously undertaken the aforesaid

exercise of enumerating various government and

government recognized institutes, which grant, inter alia,

the one-year diploma certificates in computers as the said

list shows that the aforesaid recording in Paragraph-3 of

the Communication dated 06.09.2018 was premised on

ignorance of the Author of the said communication with

regard to the existence of at least a dozen institutions,

which were issuing such like certificates. Moreover, that

statement-which is relied upon by the petitioners, relates

only to institutes within the State of Uttarakhand.

However, the applications were invited from eligible

candidates-not just from within the State of Uttarakhand,

but from outside the State as well.

7.          In     our       view,          reliance      placed        on       the

Communication            dated         06.09.2018            is      completely

misplaced, inasmuch as the said communication cannot be

taken as a gospel truth, and on that basis, it cannot be

held that the prescription of the essential qualification, as

aforesaid, was vague, or unclear.

8. Moreover, we find that the petitioners

consciously, and with open eyes, participated in the

examination process. If they had any grievance with

regard to the prescription of the essential qualifications,

they should have approached the Court as soon as the

advertisement in question was issued, and even before

participating in the examination. However, they were

sitting on the fence, and they approached the Court only