Naveen Pande vs Uttarakhand Public Service
2022 Latest Caselaw 1737 UK

                                                        Reserved Judgment


         HIGH COURT OF UTTARAKHAND
                 AT NAINITAL
              Writ Petition (S/S) No. 1523 of 2018
Naveen Pande                                          ...     Petitioner
                                    Vs.
Uttarakhand Public Service
Commission and others                                 ...     Respondents
Advocates :   Mr. Chitrarh Kandpal, Advocate, for the petitioner
              Mr. Pradeep Hairiya, Addl. Standing Counsel, for the State of
              Uttarakhand.
              Mr. B.D. Kandpal, Advocate, for the respondent No. 1/Commission
              Mr. Vinay Kumar, Advocate, for the respondent No. 4


                                                  Reserved on : 04.03.2022
                                                  Delivered on : 10.06.2022

Hon'ble Sharad Kumar Sharma, J.

In the instant writ petition, is a very peculiar case in its own facts, and an issue, which is to be considered by this Court is:

"Whether the qualification obtained from the Air Force, could be treated to be an equivalent qualification as prescribed in the advertisement, which has had to be in accordance with the State recognised law"?

2. Facts of the case are that an advertisement was issued on 17th February 2017, by respondent No. 1, herein i.e. the Uttarakhand Public Service Commission, for the purpose of conducting a process of selection as against three vacant posts of Regional Inspector (Transport), which is carrying a scale of Rs. 9300-34800 with Grade Pay of Rs. 4200/-. The last date for applying in response to the said advertisement was 15th March 2017.

3. The petitioner contends that since he possessed the requisite educational qualification to be recruited for the post of Regional Inspector (Transport), and since he, being the permanent resident of the State of Uttarakhand, since residing in district Udham Singh Nagar, he had extended his candidature to be considered for appointment in pursuance to which the petitioner submits, that when he had submitted his application within the time, the respondent had processed the same and an admit card too was issued in his favour, wherein he was called upon to appear in the examination of the recruitment process with Roll Number bearing Number 300002.

4. The process of selection entail the conduct of written and practical examination, and after its culmination, a candidate was thereafter was required to present himself, before the appointing authority, for the purposes of verification of the documents, before any actual appointment is granted to the candidate as against the post advertised for which he or she had qualified the selection process.

5. Petitioner submitted that as a consequence of and under the strength of admit card, which had been issued in his favour he had participated in the written and practical examination, which was held between 20 August till 21st August 2017, and on the culmination of the same, the result was notified by the respondent vide their Notification No. 263/74-17/2017-18 dated 20th February2018. As a consequence of the result being declared and since the petitioner having being declared, as successful, at this stage itself, this Court feels it necessary to observe that merely because of the fact:-

(i) On scrutiny of the documents, admit card was issued;

(ii) On the basis of admit card, the petitioner was permitted to take the written examination, and consequently, the practical examination too;

(iii) Merely because of the fact that the result, which was notified on 20th February 2018, included his name, all these factors itself will not lead to a conclusion of a creation of any indefeasible right in favour of the petitioner, to be appointed against the post, which had been advertised on 17th February 2017, because it needs no reference that merely permitting the petitioner to participate in the selection process and even after having being declared to be qualified the same, no right of appointment is created in favour of a candidate, who had been declared to be successful.

6. As a consequence of declaration of the result on 20th February 2018, the respondent No. 1, issued a letter on 9th April 2018, calling upon such qualified candidates, whose names were disclosed in the result dated 20th February 2018, to appear before the competent authority and to produce all the documents and other testimonials, for the purposes of testing the veracity of the documents verification, based on which, the permission to participate in the written examination and the practical examination was granted by respondent No. 1, to the candidates.

7. The learned counsel for the petitioner submits that on 19th April 2018 i.e. the scheduled date, the petitioner approached before the respondent and had submitted all his documents as called upon by the earlier correspondence of the respondent

dated 9th April 2018. He submits, that the petitioner was issued with the interview call letter on 14th May 2018, and it was then only that he was called upon to participate in the interview, which was allegedly scheduled to be held on 30th May 2018.

8. At this stage, the learned counsel for the petitioner contends, that the cause of action or the controversy germinates. He submits that when on 30th May 2018, the petitioner had presented himself before the Interview Board, to take his interview, as a consequence of having being declared as successful by the result dated 20th February 2018. The respondent had not permitted the petitioner to participate in the interview or to appear before the Interview Board.

9. It is submitted by the learned counsel for the petitioner in the pleading, that despite several requests made by the petitioner himself, no written order was passed and rather the authorities, who were present at the place, where the interview was supposed to be held, they had informed the petitioner, that the he would not be permitted to participate in the interview board for the reason being that the testimonials, which the petitioner had produced on 19th April 2018, he had only produced a diploma certificate, which had been obtained by him from the Indian Air Force, which was in the shape of a certificate, but in support thereto, since there is no mark-sheet attached to it, nor the same was produced before the Authority on 19th April 2018, merely on the basis of production of the certificate of diploma that itself will not be treated, that the petitioner was able to participate in the process of selection, because any certificate of diploma, issued by a competent

recognised institution, is only certifying the fact of a candidate being successful, but the principal eligible criteria would be the determination of the qualification based upon the marks which has been obtained by the candidate, and in the absence of the market being placed on record, which should have been issued by the competent Indian Air Force Authorities, from where the petitioner had been superannuated and since he being an ex army person, it was informed to the petitioner that he would not be treated to be eligible to participate in the interview, as well as in the selection process initiated in pursuance to the advertisement dated 17th February 2017, on the ground, that only a certificate of diploma issued in the absence of there being a supporting marksheet, that in itself will not suffice the purpose to make a person eligible to be permitted to be treated, as to be qualified to take the examination. Consequently, the petitioner has pleaded that the Secretary to the Interview Board, as well as the Secretary of the respondent No. 1, had not permitted the petitioner to take the interview, hence the present writ petition.

10. In the writ petition, the petitioner has submitted that when there was an oral denial, by the respondent /Secretary to the respondent No. 1, by not permitting him to participate in the interview on 30th May 2018, the petitioner had submitted a representation on 1st June 2018, to the respondent No. 1, and also to the Competent Authorities of the Indian Air Force and a hard copy of the said representation of 1st June 2018, was also simultaneously sent to the Indian Air Force Authorities, as well as to the respondent No. 1, on 2nd June 2018. Ultimately, the result was finally declared and on the culmination of selection

process, but the petitioner was not shown to have been successful, because of the fact that he was not permitted to participate in the interview.

11. It is, at this stage the necessity was felt by the petitioner to file the present writ petition for the relief claimed therein, seeking a declaration for permitting him to participate in the interview for the post of Regional Inspector (Transport), in pursuance to the result, which was declared on 20th February 2018, holding him to be successful in the process of examination.

12. When the writ petition was pending consideration, one Mr. Sanjay Singh, had filed an impleadment application, which was allowed by the co-ordinate Bench of this Court vide its order dated 15th July 2019, and Mr Sanjay Singh was directed to be impleaded as respondent No. 4. The reason for impleadment of Mr Sanjay Singh, as a party to the proceeding of the writ was that since on the culmination of the process of selection, on conclusion of the written examination, the cut off marks, which was fixed, to make a candidate eligible to be called for an interview was fixed at 113 and since the newly impleaded respondent No. 4, contends that he was satisfying the cut-off marks, the interference made by the coordinate Bench of this Court, by passing of an interim order dated 25th June 2018 of keeping one post vacant, as against the total 3 posts advertise, would affect his rights because as per his placement in the merit list and the qualification acquired by him, he would fall to be within the zone of consideration in accordance with the cut-off marks of 113, in the written and

practical examination to make him eligible to be called for an interview.

13. The newly impleaded respondent No. 4, contended that when the interview was concluded on 30th May 2018, after inclusion of the marks of the interview, the cut off marks for recruitment was fixed as 164. He submits that the two candidates who were already appointed were having the marks more than the respondent No. 4, and they were recruited, but on account of an interim order dated 25th June 2018, one post, which was held up not to be filled he would have been eligible to be appointed because his name was there next in the merit list.

14. The petitioner, who claims his selection under the advertisement, would not be eligible for the following legal reasons:-

Under the Constitution of India, the technical education falls to be under the Concurrent List III Entry 25, which is extracted hereunder:-

"25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour."

15. Reverting back to the issue. If the advertisement, based on which the applications were invited itself is taken into consideration, its educational qualification was prescribed under clause (4) of the advertisement, as to what would be the minimum eligible qualification, for a candidate to be eligible to be considered for appointment against the 3 vacant posts. The

qualification given there in the advertisement under sub clause (1) of clause (4) is extracted hereunder:-

"4. (1) अिनवाय� शैि�क अह�ता- (क) मा�िमक िश�ा प�रषद्, उ�राख� की हाई�ूल परी�ा (िव�ान िवषय "सिहत) या सरकार �ारा समक� मा�ता प्रा� अ� परी�ा उ�ीण� होना चािहए।

(ख) रा� प्रािविधक िश�ा प�रषद् �ारा प्रद� यांित्रक (मैकेिनकल) या ऑटोमोबाईल इंजीिनय�रंग म� तीन वष�य िड�ोमा प्रा� होना चािहए अथवा सरकार �ारा उसके समक� मा�ता प्रा� अ� परी�ा उ�ीण� होना चािहए।

(ग) िकसी प्रिति�त वृहत् ऑटोमोबाईल काय�शाला म� जहां डीजल तथा पेट�ोल इंिजनयु� ह�े एवं मारी वाहनों (यात्री वाहनों सिहत) की मर�त आिद से स���त काय� होता हो, काय� करने का �ूनतम पाँच वष� का �ावहा�रक अनुभव होना चािहए।

(घ) अ�थ� मोटर साईिकल माल वाहन एवं यात्री वाहन / भारी मोटर वाहन चलाने का लाईस�स धारक हो।

(ड.) देवनागरी िलिप म� िल�खत िह�ी का स�क �ान होना चािहए।

नोट :- 1. अनुभव प्रमाण पत्र प�रिश�-3 के प्रा�प के अनुसार ही उपल� कराने पर मा� होगा।

2. अनुभव की गणना UK PSC (Procedure & conduct of Business) Rules 2013 के िनयम 21 (4) म� दी गयी �वस्था के अनुसार ही की जायेगी।

16. In the educational qualification, as extracted above, the eligibility for holding a Diploma in Engineering, is provided under sub clause (kha) of sub clause (1) of clause 4, which provides that a technical educational qualification or education of diploma, would be treated to be eligible qualification, which has been granted by the State Technical Education Board. Since the diploma, which the petitioner contends that he was having was issued by the India Air Force, it cannot be treated as to be in parlance, to satisfy the qualification of sub clause (kha) of sub clause (1) of clause 4 of the advertisement. Hence, rejection of the candidature of the petitioner, since he has not supplied the mark-sheet of the diploma, coupled with the fact, that the diploma, on which he relied, and based on which he was permitted to participate in the examination, was not a qualification, which was recognised and reckoned by the State Technical Education Board, in order to make the petitioner

eligible and hence the denial to permit him to participate in the interview cannot be faulted of.

17. The reason behind it is that apart from the fact that educational qualification, as contained in List 3 of Schedule 7 of the Constitution of India, the technical education and the constitution of the State Technical Education Board, as referred to under clause (kha) of sub clause (1) of Clause 4 of the advertisement, has had to be read in the context of the Uttaranchal Board of Technical Education Act of 2003. This Act was enacted in order to provide for establishment and constitution of Technical Board in Uttaranchal for the matters connected therewith or incidental thereto.

18. On the relevant consideration, for the purpose of deciding the present controversy, petitioner contends that he is qualified as per clause 4 of the advertisement, is not acceptable for the reason being that the Act of 2003 under Section 2(a) defines the technical education which reads as under:-

"2. Definitions.- In this Act, unless the context otherwise requires:-

(a) "Technical Education" means the technical/professional education imparted by various technical institutions and managing the teaching and training upto diploma (2 to 3 years), degree and post graduate level (3 to 4 years) duration in various disciplines viz. Civil, Electrical, Mechanical, Chemical Engineering, Electronics, Instrumentation, Information Technology, Architecture, Computer Science & Engineering, Pharmacy, Textile Designing, Interior Design and Decoration, Office Management and other diversified professional/engineering courses approved by AICTE and recognized by the Uttaranchal Board of Technical Education and concerned University."

19. It simplicitor lays that the technical professional education, would be the technical education, which is imparted by the institutions recognised by the Board, and that too which is the course conducted for 2 to 3 years and that too and since under the Act under sub Section (a) of Section 2, the technical education has had to be of 3 years from a recognised Institution and the qualification prescribed in the advertisement itself when it provided for 3 years diploma, obviously the petitioner will not fall within the zone of consideration admittedly for the reason:-

(i) That the diploma obtained by the petitioner, was not from a recognised Institution and the diploma, which he placed reliance was a diploma, which was not for a period of 3 years of qualification, but rather the petitioner had obtained the said diploma from the Indian Air Force, after completing his training only for a limited prescribed period from September 2001 to May 2002 i.e. a period which is less than a year, and the said qualification cannot be treated as to be a qualification for 3 years as prescribed in clause 4 of the advertisement and Section 2 (a) of the Act of 2003.

20. Apart from it, clause 4 of the advertisement, as already discussed provide the diploma qualification to be from State Technical Education Board, the diploma issued by the Air Force, will not fall to be a diploma which was issued by the State Technical Education Board, because it is not a recognised qualification given by the State Technical Education Board, as constituted under the Act of 2003. The State Technical Education Board under the Act of 2003, has been defined under sub Section (b) of Section 2 of the Act, which means the Board

i.e. "Uttaranchal Board of Technical Education". This distinction of a Board cannot be read for the purposes of diploma which has been issued to the petitioner for a period of less than 3 years by the Indian Force Authorities.

21. First of all, it will not be a recognised institution, it will not be a an institution, which has conducted a diploma for 3 years, hence the petitioner would not be eligible because his diploma cannot be treated as to be a diploma as defined under sub Section (f) of Section 2 of the Act of 2003, which reads as under:-

"(f) "Diploma" means the Diploma awarded by the Board to a person for successfully completing in an affiliated institution such course of study as may from time to time be prescribed by rules and includes a preparatory diploma, advance diploma, higher diploma, intermediate diploma or a diploma awarded for completing a post diploma course".

22. On an overall scrutiny of the statutory implications as per the Act of 2003, if it is read along with the conditions of the advertisement, and for the reasons already assigned above, the petitioner cannot be at all said to be eligible to participate in the selection process for the post of Regional Inspector (Transport) under the advertisement dated 17th February 2017.

23. For the reason already given above, and also for the reasons, that the certificate, which has been placed on record it was only a certificate confined to the alleged discipline of "mechanical transport fitter", which was recognised by the Government of India, vide its Office Memorandum dated 22nd July 1977, treating it to be an equivalent for the purposes of recruitments to be made in the subordinate posts, which are

available with the Government of India. In that eventuality, the recognition of the trade of mechanical transport fitter certificate, as relied by the petitioner in order to treat him to be eligible, would be treated to be, only recognised by the Government of India and not by the Uttarakhand Board of Technical Education Act of 2003 and that too, the reckoning of certificate only which was available to the petitioner, would be only for the purposes of recruitment to be made on the subordinate posts in the Government of India and hence under the said certificate which has been issued in favour of the petitioner, more particularly, in the absence of there being a supporting marksheet, that in itself will disentitle the petitioner to be considered for appointed against the post advertised by the State, whose eligibilities are prescribed in the advertisement to be read with the provisions of eligibility prescribed under the Act of 2003.

24. Even if the certificate of the petitioner is taken into consideration, it was issued by the Directorate of Air veterans, which under not a set of any provision or under any provision of law can be treated to be a Technical Body, constituted under law to issue diplomas, which could make a candidate eligible to be appointed on a post available or for the State and for the post which requires a qualification to be issued by the State Technical Board and that too, for a diploma of 3 years. Since all these conditions were not satisfied by the petitioner, non inclusion of the petitioner or not permitting him to participate in the interview, cannot be faulted with in any manner whatsoever.

25. The learned counsel for the respondent had argued, that the argument of the learned counsel for the petitioner, on the pretext that it was after scrutinisation of his documents, which he had submitted by him within the time prescribed i.e. 15th March 2017, since he was permitted to participate in the written and practical examination for the dates, already referred to above, will be of no avail for the petitioner for the reason being, that as per the terms of the advertisement itself, to which the petitioner has submitted to its conditions, under its clause 18(3), which is extracted hereunder:-

"(III) सा�ा�ार परी�ा हेतु िनद�श:

(1) िल�खत परी�ा व प्रायोिगक परी�ा म� सफल अ�िथ�यों को ही सा�ा�ार हेतु आ�त िकया जायेगा।

(2) सा�ा�ार हेतु सफल अ�िथ�यों को पुनः आवेदन पत्र भरकर ऑनलाईन आवेदन म� िकये गये दावों से संबंिधत शै�िणक/ आर�ण / अनुभव / िवभागीय अनापि� प्रमाण पत्र इ�ािद के प्रमाण पत्र संल� कर सा�ा�ार ितिथ को आयोग के अिधका�रयों के सम� परी�ण के िलए प्र�ुत करने होंगे। अ�िथ�यों को उ� आवेदन पत्र एवं अ� प्रपत्र आयोग की वेबसाइट के मा�म से डाउनलोड करने के िलए उपल� कराये जायेगे। इस संबंध म� िव��� प्रकािशत कर अ�िथ�यों को सूिचत िकया जायेगा। यिद अ�थ� की अह�ता के संबंध म� प्र�ुत दाये म� कोई कमी या अस�ता पायी जाती है तो उसका अ�थ�न िनर� कर िदया जायेगा।

(3) मूल प्रमाण पत्र के स�ापन के समय ही अ�थ� को अपने िवभागा�� अथवा उस संस्था के प्रधान �ारा, जहां अ�थ� �ारा िश�ा पायी हो, अथवा िकसी राजपित्रत अिधकारी �ारा प्रमािणत पासपोट� आकार के दो फोटोग्राफ भी प्र�ुत करने होंगे।

(4) के� अथवा रा� सरकार के अधीन अथवा उनके िनयंत्रणाधीन काय�रत अ�िथ�यों को प्रमाण पत्रों के स�ापन के समय अपने सेवा िनयोजक का 'अनापि� प्रमाण पत्र मूल �प म� अथवा �प्रमािणत छायाप्रित प्र�ुत करनी होगी।

(5) मु� परी�ा एवं सा�ा�ार के प्रा�ांको के योग के अनुसार श्रेणीवार / उपश्रेणीवार �र� पदों की सं�ा के अनुसार मै�रट के आधार पर अ�िथ�यों को सफल घोिषत िकया जायेगा। परी�ा प�रणाम आयोग की वेबसाइट पर प्रदिश�त कराया जायेगा, िजसकी सूचना िविभ� समाचार पत्रों के मा�म से प्रकािशत करायी जायेगी।"

26. For the purposes of being called upon for participation in the interview, the documents were to be verified and it was at this stage of verification of documents, which was conducted on 19th April 2018, it was found that the petitioner's diploma

was not as per the stipulations of the Act of 2003, and hence the petitioner was rightly rendered to be non-suited and mere selection or being included in the list of successful candidates that in itself would obviously be subject to the scrutiny of documents under clause 18 (3), as extracted above, and furthermore, the learned counsel for the Public Service Commission, he has submitted that under the Uttarakhand Public Service Commission (Procedure & Conduct of Business) Rules 2013 and particularly, Rule 22 (9), the petitioner will not be eligible because as per the qualification prescribed under the advertisement dated 17th February 2017 to be read with in consonance to the provisions of the Act of 2003, and the rejection/not permitting the petitioner to take the interview, cannot be faulted of, in any manner whatsoever. Consequently, the writ petition fails and the same is hereby dismissed.

27. But, so far as a consequential action to be taken in pursuance to the dismissal of the present writ petition, qua respondent No. 4, that will be proceeded with by the respondents, exclusively as per the provisions of law, and conditions of the advertisement, as discussed above.

28. Accordingly, the writ petition lacks merit and the same is hereby dismissed. However, there will be no order as to costs.

(Sharad Kumar Sharma, J.) 10.06.2022 Mahinder/