JUDGMENT Hon’ble Dinesh Gupta, J.—This second appeal is preferred against the judgement dated 24.1.1987 passed by VIIIth Additional District Judge, Ghaziabad in Civil Appeal No. 16 of 1986 arising out of judgement dated 16.1.1986 passed by IInd Additional Munsif, Ghaziabad in Original Suit No. 355 of 1985. 2. The brief facts, which give rise to this appeal are that the plaintiff-appellant (hereinafter called the “appellant”) filed Suit No. 355 of 1985 against the defendants-respondents (hereinafter called the “respondents”) for the relief of declaration and perpetual injunction. 3. The appellant has come up with a case that he belongs to backward class and passed intermediate in the year 1972 and also passed four year diploma course in Ayurved in IInd division in the year 1980 from Ayurved Vidyalaya, Gurukul Vishwavidyalaya Vrindavan, Mathura. The diploma is also recognized by Bhartiya Chikitsa Parishad, U.P. Lucknow and he also himself registered with Bhartiya Chikitsa Parishad, Lucknow. 4. The respondent No. 3 advertised two vacancies one from backward class another from scheduled caste for the post of Vaidya/Chikitsak in the month of October, 1984 and invited application from the candidates, who qualified for the said post. 5. In consequence of the said advertisement, the appellant also applied for the above said post against reserve vacancy for backward class. The respondent No. 3 issued an interview letter to the appellant calling for interview on 1.2.1985 in the office of the respondents. The appellant appeared in the said interview before the selection committee in which about 35 candidates were interviewed but the respondents cancelled the said interview and again the appellant asked to appear for interview on 15.2.1985. The appellant again appeared before the selection committee on the above said date and secured highest marks on the merit and the selection committee finalized the list and selected two candidates i.e. one from backward category and another from general category instead of scheduled caste as advertised in the news paper by the respondents. 6. Despite the highest marks obtained by the appellant against the vacancy of the post of Vaidya against backward class, the respondents illegally and malafidely retained the results of the interview even after scrutinizing the certificates submitted by the appellant. 7. 6. Despite the highest marks obtained by the appellant against the vacancy of the post of Vaidya against backward class, the respondents illegally and malafidely retained the results of the interview even after scrutinizing the certificates submitted by the appellant. 7. The selection committee, thereafter, made a recommendation under Rule 23 of U.P. Zila Parishad Services Rules, 1970 for the appointment of above said post but the appellant was not issued any appointment letter so far and the respondents in collusion with each other in violation of rules and provisions of law made for the appointment of the said post, advertised the said vacancy again in daily newspaper on 29.3.1985. 8. The appellant further alleged that the advertisement was not circulated properly and kept the candidates in dark so as to enable themselves to pick-up their own candidates and in the above said advertisement, the respondents proposed the interview on 6.4.1985. Thereafter, the appellant filed a representation to the Divisional Commissioner, Meerut on 7.4.1985 requesting him to interfere in the matter. The appellant also represented before Zila Adhikari, Ghaziabad for getting the appointment letter on the basis of selection but the respondents directed the appellant to appear in the third interview and after interview, the respondents manipulated and appointed some other person on their one choice in place of the appellant. Hence, the appellant left with no option but to file the suit for declaration and for injunction to restrain the respondents from appointing any other person other then the appellant. 9. The suit was contested by the respondents and the respondents denied all the allegations of the appellant and it was further contended that the appellant was given opportunity to appear in the interview held on 6.4.1985 and the appellant appeared in the same interview. 10. It is further stated that the suit is barred by Section 57 of Zila Parishad Act. The appellant was not finally selected and on a scrutiny of the papers, it was found that the appellant does not possess the requisite qualification required under the Rules framed by the State of U.P. for the recruitment of post in question. 10. It is further stated that the suit is barred by Section 57 of Zila Parishad Act. The appellant was not finally selected and on a scrutiny of the papers, it was found that the appellant does not possess the requisite qualification required under the Rules framed by the State of U.P. for the recruitment of post in question. On account of this selection committee recommended for re-advertisement for the post in question, then again the Adhyaksha Zila Parishad, Ghaziabad further directed for re-advertisement and the interview was held by the respondents on 6.4.1985 and one candidate, namely, Mahendra Singh was selected having requisite qualification of five years decree course in Ayurved and he was selected being found fit in all respects. As per the directions of State Government, the post of Chikitsak is to be filled in from the candidates having degree in Ayurved of any university or from the candidates having five decree or diploma or diploma in Ayurved Alankar and experience of minimum ten years. Sri Mahendra Singh candidate selected for the post is having much more qualification than the appellant. The selection committee is not the appointing authority but only recommends the name to the Adhyaksha, who is the final authority in this regard and also an appointing authority and mere recommendations of the selection committee does not confer any right or interest to the appellant for the post in question. Learned Munsif after considering the evidence available on record, decreed the suit of the appellant. 11. Aggrieved by the judgement dated 16.1.1986, the respondents preferred an appeal, which was transferred to the Court of VIIIth Additional District Judge, Ghaziabad and registered as Civil Appeal No. 16 of 1986 and the learned Additional District Judge vide its order dated 24.1.1987 allowed the appeal and set aside the judgement dated 16.1.1986 passed by the learned Munsif in Original Suit No. 355 of 1985 and dismissed the suit of the appellant with costs. 12. Feeling aggrieved, the appellant preferred this appeal before this Court. At the time of admission of this appeal, the appeal was admitted on the following substantial questions of law, which reads as under: 1. Whether the respondents were found to make appointment of the plaintiff appellant on the post in question under Rule 23 of the U.P. Zila Parishad Service Rules 1970 in view of his section by the Selection Committee? 2. Whether the respondents were found to make appointment of the plaintiff appellant on the post in question under Rule 23 of the U.P. Zila Parishad Service Rules 1970 in view of his section by the Selection Committee? 2. Whether respondent No. 2 had authority to cancel the selection without complying with the requirement envisaged by proviso Clause of Section 43 (3) and sub Clause ‘b’ of Section 43 (3) of Kshettra Samities and Zila Parishad Adhiniyam, 1961? Notices were issued to the respondents and lower Court records were also requisitioned. 13. Heard Shri Shamimul Hasnain, learned counsel for the appellant and Shri Amit Kumar Chaudhary, learned counsel for the respondents. Learned counsel for the appellant submitted that the judgement and decree passed by the Court below is prima facie illegal, perverse and without jurisdiction and liable to be set aside by this Court. The appellant’s selection on the post of Vaidya was in accordance with rules and selection committee constituted for the said purpose duly recommended the name of the appellant against the post belonged to backward class. The appellant secured highest marks in the said selection process and deserves to be appointed on the said post. However, the respondents with ulterior motive re-advertised the said post. The selection committee having made recommendation for the appointment of the appellant on the post of Vaidya, the respondents were bound to make his appointment in view of provisions laid down in Rule 23 of U.P. Zila Parishad Service Rules, 1970. The appellant being member of backward class and having requisite qualification was rightly recommended for the appointment on the post of Vaidya in question on the basis of his highest marks secured by him and has every right to be appointed on the said post. 14. Learned counsel for the appellant further submitted that as per Section 43 (3) of the U.P. Kshetra Samities and Zila Parishad Adhiniyam, 1961, if in case, Adyaksha of Zila Parishad is of the opinion that the advice of the selection committee is improper or unfair, he may make a reference to the commissioner of the Division whose decision shall be final but in the instant case, no such reference was made to the commissioner by the Adyaksha. The respondents had no right to cancel the recommendation of the selection committee against the rules. The appellate Court has wrongly misread and misinterpreted the rules erred in law. The respondents had no right to cancel the recommendation of the selection committee against the rules. The appellate Court has wrongly misread and misinterpreted the rules erred in law. 15. Learned counsel for the respondents submitted that the judgement passed by the appellate Court is justified and passed in accordance with law and the same is based on the provisions and also on the evidence adduced by both the parties and this Court has no power to interfere with the finding recorded by the first appellate Court. 16. Learned counsel for the respondents further submitted that in fact the appellant lacks requisite qualification for the post of Vaidya. He also lacks the requisite experience essential for the said post. 17. Learned counsel for the respondents further submitted that on the basis of advice of Adyaksha, the post was readvertised and again an interview was held in which the appellant was also asked to appear and the appellant did appear in the said interview. In the said interview, one Mahendra Singh secured highest marks and on the basis of his performance, he was given appointment. The appellant has not made Shri Mahendra Singh party in the suit, who was necessary party and no relief could be granted to the appellant without impleading the above said Mahendra Singh as party. 18. Learned counsel for the respondents further submitted that the appellate Court has rightly held that though the appellant has not possess the requisite qualification, he is not entitled for appointment. The recommendation of the selection committee are merely in the form of opinion and no right accrued to the appellant on the basis of such recommendation. 19. Learned counsel for the respondents further submitted that no interference is required and the appeal lacks merits and deserves to be dismissed. 20. Before entering into the merits of the case, certain provisions of U.P. Kshetra Samitis and Zila Parishads Adhiniyam, 1961, which are relevant for disposal of this appeal, which reads as under: 43. Method of appointment of Abhiyanta and to certain other posts :(1) Appointments to the posts of Karya Adhikari, Abhiyanta and Kar Adhikari and the posts created under sub-section (2) of Section 39 carrying an initial salary of Rs. Method of appointment of Abhiyanta and to certain other posts :(1) Appointments to the posts of Karya Adhikari, Abhiyanta and Kar Adhikari and the posts created under sub-section (2) of Section 39 carrying an initial salary of Rs. 200 or more per month shall be made by the Parishad in consultation with the State Public Service Commission or such other Commission of Selection Board as may be constituted by the State Government in this behalf for all Parishad or any group of Parishad separately (in either case hereafter referred to as the ‘commissioner) in the manner prescribed: Provided that if there is a difference of opinion between the Commission and the Parishad the matter shall be referred to the State Government whose decision shall be final. (2) Except in the case of teachers and any other class of posts which the State Government may specify, appointments to posts connected with any department of the Parishad specified by rules and carrying an initial salary of less than forty rupees per month shall be made by the head of that department and appointment to all other posts carrying in initial salary of less than forth rupees per month shall be made by the Mukhya Adhikari. (3) Except as otherwise provided in this Act, appointments to posts under the Parishad, other than those covered by sub-sections (1) and (2), shall be made by the Adhyaksha- (a) in the case of teachers, on the advice of the Shikshak Chunao Samiti, constituted by the State Government in the manner prescribed; (b) in the case of others on the advice of the Chunao Samiti constituted under Section 45: Provided that if in any case the Adhyaksha is of opinion that the Advice of the Shikshak Chunao Samiti or the Chunao Samiti, as the case may be, is improper or unfair, he may make a reference to the Commissioner of the Division whose decision in the matter shall be final and binding. (4) Notwithstanding anything in the preceding sub-section- (a) if the State Government has made any order under sub-section (1) of Section 41, that order would prevail, and (b) the State Government may at any time, require a Parishad to take in its own service any such Government servant whose services has been placed at the disposal of the Parishad under clause (b) of Sub-section (1) of Section 41 and who has given his consent in that behalf and upon being so taken in the service of the Parishad, such servant shall cease to be Government servant and shall become a servant of the Parishad. 45.Chunao Samiti.—(1) There shall be a Chunao Samiti consisting of the following members : (a) the Adhyaksh-Chairman; (b) a member of the Karya Samiti to be nominated by the Karya Samiti yearly; (c) the head of the deparment for which the appointment is to be made-Secretary. (2) In tendering advice the committee shall take its decision by majority vote, each member of the committee having one vote. Section 23 of Zila Parishad Service Rules, 1970, which is reproduced below: 23. Appointment to be made on the recommendations of Chunao Samiti.—After the selection has been made by the Chunao Samiti, the appointing authority shall make the appointment in accordance with the recommendation of the Chunao Samiti. SCHEDULE-A Containing the Posts Scales of Pay, minimum qualification and method of recruitment Sl. Designation Scale Qualification Minimum/ Methods of Appointing No. of posts of candidates Maximum recruitment authority by direct age (in recruitment years) 1. to 41. ———— ——— ——— ——— ——— ——— 42 Vaids and Rs.150-6-180-E.B. Any of the 21 to 35 50 percent Do. Hakims 10-220-E.B.10-26 professional of the posts (qualified) Qualification by direct with a recruitment minimum and the rest experience by promotion of five years. from unqualified Vaidas and Hakims 21. At serial No. 41 of Schedule A of the rules of U.P. Kshetra Samiti and Zila Parishad Adhiniyam 1961 laid down the qualification if Chikitsa Adhikari, which is as follows: “41. Professional— (1)Degree in Ayurveda or Unani Tibb of a University established by law in U.P. or (2) Five years degree or diploma in Ayurveda or Unani Tibb (BIMS or DIMS of the Board of Indian Medicine, U.P. or (3) Diploma of Ayurvedic Alankar of the Ayurvedic, College, Kangri University, Saharanpur. Professional— (1)Degree in Ayurveda or Unani Tibb of a University established by law in U.P. or (2) Five years degree or diploma in Ayurveda or Unani Tibb (BIMS or DIMS of the Board of Indian Medicine, U.P. or (3) Diploma of Ayurvedic Alankar of the Ayurvedic, College, Kangri University, Saharanpur. Experience: A minimum experience of ten years.” Now in the light of the above provisions, the case of the appellant is to be seen. 22. Admittedly, in the last interview, selection held for the post of Chikitsak/Vaidya, the name of Mahendra Singh was recommended by the selection committee and later on he was duly appointed against which the appellant has also claimed his appointment. 23. In the suit, the appellant has not made party Shri Mahendra Singh and in absence of Mahendra Singh as party, no proper relief could be granted to the appellant as the appellant was claiming his appointment on the post, which has been occupied by Mahendra Singh. Then no inclusion of the above said Mahendra Singh as defendant in the suit, no effective relief could be given to the appellant. The appellate Court has also considered this aspect. 24. Further, so far as the requisite qualification and experience is concerned, although five years diploma course in Ayurved was required for minimum qualification for the post of Chikitsak/Vaidya. Admittedly, the appellant possess a diploma of four years only. However, the said diploma was also treated to be equivalent to five years diploma and this fact was verified by the respondents also even in the impugned selection in which the appellant claims to be selected by the selection committee. The selection committee while recommending the name of the appellant also held that though the required experience is five years and the appellant only possess four years experience, hence, for relaxation, the selection committee proposes the matter to be sent to the concerned authority. Admittedly, in the selection committee through which the appellant claims himself to be appointed also of the opinion that the appellant did not possess the requisite experience. After the selection process, the Adyaksha of Zila Parishad asked for re-advertisement of the post. It is also disputed that the appellant himself appeared in readvertised post and the interview and was not selected and in his place one Mahendra Singh was selected. Hence, the appellant cannot claim his appointment on the basis of previous selection committee’s recommendation. After the selection process, the Adyaksha of Zila Parishad asked for re-advertisement of the post. It is also disputed that the appellant himself appeared in readvertised post and the interview and was not selected and in his place one Mahendra Singh was selected. Hence, the appellant cannot claim his appointment on the basis of previous selection committee’s recommendation. 25. The finding recorded by the first appellate Court that the appellant did not possess the requisite experience, requires no reconsideration. So far as the recommendation of the selection committee is concerned, it is admitted that the selection committee only the recommending body and on the basis of such recommendation, no right accrues to the appellant. 26. The finding recorded by the appellate Court in this regard is also specific and based on case laws as cited by the Court in its judgement and also does not require any interference. The finding recorded by the appellate Court that the suit of the appellant was barred by Section 41 of the Specific Relief Act and this finding has not been challenged by the appellant byway of this appeal and the finding in this regard recorded by the appellate Court is well founded and requires no reconsideration. In view of the above, I am of the opinion that the appeal lacks merits and deserves to be dismissed. Substantial questions of law are answered accordingly. —————