JUDGMENT Amitav K. Gupta, J - This Letters Patent Appeal has arisen out of the judgment and order dated 20.06.2013 passed by the learned Single Judge in CWJC NO.2830/1998(R) whereby it was held that the petitioners/respondents are eligible for the appointment on the post of Lab/Pathological Technician (Trainee), Grade-D and directed the respondents/appellants to consider the case of the petitioners/respondents in the light of the findings of the aforesaid writ application. 2. The brief fact of the case is that Notification dated 02.08.1994 (Annexure-1 to this appeal) was published by the respondents/appellants for recruitment to the post of Lab/Pathological Technician (Trainee) which was sent to Employment Exchange and the pay was fixed at Rs.2000/-as consolidated stipend during the training period with a mention that the management may decide the placement in T & S Grade-D in the scale of pay of Rs.1158-48-1542-58-2006 of NCWA-VI. The qualification prescribed was matriculate and diploma in Pathological technician from a recognised institution and approved by the Government and on the basis of such publication the writ petitioners' name as well as other candidates' name was forwarded by the Employment Exchange. Thereafter, the written examination was held on 28.12.1994 and interview and practical examinations were held on 24.05.1995. At the time of the interview it was noticed that the Medical Laboratory Technology Institute, Kaloor, Kochi which had issued the diploma to the writ petitioners/respondents was not a recognised/approved institute by the Government. A team comprising of Dr.M.K.Sinah, Medical Superintendent and Shri I.I.Joseph, P.M.(W) were sent to various institutes situated at Kerala and they submitted the report that the institution have no affiliation with the University or professional institute and was not approved by the State Government or the State Technical Board and the institute from which the petitioners/respondents had obtained the diploma is not recognised by the Government. Considering the fact that the petitioners/respondents do not possess the degree from a recognised institute appointment letter was not issued to them. Being aggrieved the petitioners/respondents filed writ application being CWJC NO.4106/1996(R)(Annexure-4 to this appeal) which was disposed of directing the appellants to give proper opportunity of hearing to the petitioners/respondents and after considering the case to pass a reasoned order. In compliance of the order passed by the Court the respondents/appellants gave an opportunity of hearing to the petitioners/respondents and by a reasoned order rejected their claim vide Annexure-5. 3. In compliance of the order passed by the Court the respondents/appellants gave an opportunity of hearing to the petitioners/respondents and by a reasoned order rejected their claim vide Annexure-5. 3. Being aggrieved by the aforesaid order the petitioners/respondents filed CWJC NO.2830/1998(R) which was disposed of with the direction in the order impugned above. 4. Learned counsel for the appellants has argued that as per the cadre scheme(Annexure-2 to this appeal) which governs the appointment in the establishment of the appellants the essential qualification would be diploma in the respective technology from a recognised institute. There should be three years experience in a recognised institute/Government Hospitals in Grade-D and the said cadre scheme is known as Implementation Instruction no.55. It is crystal clear that for appointment one has to obtain diploma from a recognised institute. It is further submitted that on 14.11.1994 the cadre scheme was modified in the Para-Medical Sub-Committee meeting held on 04.05.1994 at C.I.L.(HQ), Kolkata and it was decided to amend the Cadre scheme for Para Medical staff-Technicians (Pathological/Radiographer). In the said modification it was added by mentioning that “as the Technicians(Pathological/Radiographer) with three years experience from recognised institute are generally not available, qualified technician may be recruited in T&S Grade D as Technician (Trainee). On successful completion of training period of three years in a medical set up they will be placed in T&S Grade-C. However, technicians with three years experience from recognised institute can continue to be recruited and inducted in T&S Grade-C as per our requirement. As per the revised cadre scheme from Par Medical staff known as Implementation Instruction no.56, the minimum qualification was kept intact and relaxation was given only for three years experience(Annexure-3). 5. It is contended by the learned counsel for the appellants that the fact remains that minimum qualification with respect to three years experience and diploma from a recognized institute was the eligibility criteria and essential qualification and when it was noticed that the petitioners/respondents do not possess the decree from a recognised institute no appointment letter was issued to them and a reasoned order(Annexure-5) was passed in compliance with the direction given in CWJC NO.4106/1996(R) and the impugned order passed in CWJC NO.2830/1998(R) is erroneous as the learned Single Judge, on the basis of the documents, held that “petitioners have qualified as per the Implementation 6. It has been urged by the learned counsel for the appellants that the learned Single Judge failed to take into consideration that the relaxation was only for three years experience and not for the essential qualification of diploma from a recognised institute. In similar type of case the Hon'ble Supreme Court in Civil Appeal no.3606/2001 with respect to appointment of Radiographer had allowed the appeal of the appellants. It has also been argued that the learned Single Judge failed to appreciate that appointment letter does not create any right to be appointed until and unless eligibility criteria and pre-condition for appointment was fulfilled. It is further submitted that the learned Single Judge has failed to give any finding on the fact whether the diploma was from the institute recognised/approved by the Government. In support of his contention learned counsel has relied on the decision in the case of Pramod Kumar v. U.P. Secondary Education Services Commission, reported in (2008)7 SCC 153 and submitted that in the said case the Supreme Court held that the appellants who do not possess a valid BEd decree had no right to appointment. It is also submitted that it is not a fact that there is no institution in the country which is recognised by the Government which offer diploma and in support of his contention he has referred to Annexure-7 series wherein certificates have been issued by the institution which were approved by the respective Government. 7. Per contra, learned counsel for the respondents has submitted that vide Annexure-2 the minimum technical qualification for pathological technician would be diploma in respective technology from a recognised institute with three years experience in recognised institute/government hospitals or in Grade-D. He has submitted that in the footnote of the said annexure it is mentioned that in some of the Companies there are some technicians working in Group-D and if these technicians have requisite qualification as indicated for technician/pathological technician they should be placed at Grade-C. It is also recommended that there will be no recruitment in Grade-D in future. Drawing attention to Annexure-3 it has been canvassed by the learned counsel that Implementation Instruction no.55 was subsequently amended by Instruction no.56 (Annexure-3) wherein it is stated as the Technicians (Pathological/Radiographer) with three years experience from recognised institute are generally not available, qualified technicians may be recruited in T&S Grade-D as Technicians(Trainee). Drawing attention to Annexure-3 it has been canvassed by the learned counsel that Implementation Instruction no.55 was subsequently amended by Instruction no.56 (Annexure-3) wherein it is stated as the Technicians (Pathological/Radiographer) with three years experience from recognised institute are generally not available, qualified technicians may be recruited in T&S Grade-D as Technicians(Trainee). However, the technicians with three years experience from recognised institute can continue to be recruited and inducted in T&S Grade-C as per our requirement.” 8. Learned counsel has emphasised that use of words “qualified technicians” signifies and demonstrates that the candidates are not required to have diploma from a recognised institute and it connotes that qualified technicians are entitled for recruitment as the footnote of implementation instruction no.55 was amended by the aforesaid implementation instruction no.56. 9. Learned counsel for the respondents has also argued that the certificates as per Annexure-7 filed by the appellants reveal that Yogendra Kumar was an apprentice trainee and doing diploma in a different Branch. Likewise certificate of Pramod Kumar Prasad discloses that he attended the Lab Technician course successfully from 22.01.1985 to 11.02.1985 showing that he had undergone training only for few days. It is further contended that these are just certificates which are ladder below the diploma and in the education system it is first the certificate then the diploma, degree, Post graduate and Ph.D and there is a prescribed course for each and Annexure-7 filed by the appellant is indicative of the fact that the respondents do not have diploma from a recognised institution which runs counter to the condition of the appellants that the said persons had requisite qualification. 10. Learned counsel for the respondents has drawn our attention to Annexure-A series filed with the counter affidavit on an application of one Shri Santosh Kumar, information was given from Ministry of Health and Family Welfare, Government of India and the Medical Council of India that they have not granted recognition to any institution for awarding certificate/diploma in Pathology, Radiology etc. It is emphatically submitted that if higher bodies like, Medical Council of India has not recognised any institution in awarding diploma in Pathology/Lab technicians, Radiograher then the certificate annexed in Annexure-7 series cannot be equated to that of diploma holder from a recognised institute. It is emphatically submitted that if higher bodies like, Medical Council of India has not recognised any institution in awarding diploma in Pathology/Lab technicians, Radiograher then the certificate annexed in Annexure-7 series cannot be equated to that of diploma holder from a recognised institute. It is further submitted that Government of India has not constituted any regulatory body to grant any recognition to the institution holding certificate of diploma/degree in Pathology/Lab Technician. 11. Learned counsel has further submitted that as per Annexure-B, category no.1 Mazdoor appointed under compassionate ground and posed in medical department were being imparted practical training for several years and after proper scrutiny they were placed in the respective cadre as per the Cadre Scheme Policy of the Company. It is further submitted that the judgment relied upon by the appellants(Annexure-6) in Civil Appeal no.3606/2001 has been passed as the appellants has concealed the facts as enumerated in Annexure-A and in the said order of the Hon'ble Supreme Court it is not shown whether Implementation Instruction no.56 was considered or placed before the Hon'ble Court. It is further submitted that the appellants have denied appointment to the respondents for extraneous consideration and the plea of ineligibility was raised for the first time by order dated 18.09.1998 and the said order is de-hors and in contravention of Implementation Instruction no.56. It is further submitted that various employees have obtained diploma from same institution as that of the respondents, have been appointed and working and were granted promotion and these facts were not placed before the Hon'ble Supreme Court and the said ratio cannot be applied in a case based on different facts or in a case where the facts and circumstances are different from the facts and circumstances of the case of which judgment is sought to be relied. In support of his contention learned counsel has relied on the decision in the case of Bhavnagar University v. Palitana Sugar Mill(P) Ltd. and others., reported in (2003)2 SCC 111 . 12. On the above ground learned counsel for the respondents has submitted that learned Single Judge has considered this aspect in the aforesaid impugned judgment holding that the materials were not produced before the Supreme Court as observed in paragraph 17 of the impugned judgment. Thus, impugned judgment and order requires no interference. 13. 12. On the above ground learned counsel for the respondents has submitted that learned Single Judge has considered this aspect in the aforesaid impugned judgment holding that the materials were not produced before the Supreme Court as observed in paragraph 17 of the impugned judgment. Thus, impugned judgment and order requires no interference. 13. Having heard learned counsel for both sides the crux revolves for consideration is whether implementation instruction no.56 dated 11.11.1994 whereby the cadre scheme for para-medical technician(Pathology/Radiographer) was amended as contained in Implementation Instruction no.55 has done away with the prescribed essential qualification of diploma from recognised/approved institute. 14. On perusal of the Implementation Instruction no.56 it is evident that in the said instruction it has been mentioned as under:-“In the footnote of Cadre Scheme for Para Medical Staff Technicians(Pathological/Radiographer) Annexure VII, s circulated vide Implementation Instruction no.55 dated 17.12.1985 it will be mentioned as under:- “As the Technicians (Pathological/Radiographer) with three years experience from Recognized Institutes are generally not available, qualified Technicians may be recruited in T&S Grade-D s Technician(Trainee).On successful completion of training period of three years in our own medical set up, they will be placed in T&S Grade-C. However, the Technicians with three years experience from recognized Institute can continue to be recruited and inducted in T&S Grade-C as per our requirement. The above report of the Para Medical subcommittee was further discussed in detail in the Standardization Committee meeting held on 6.7.94 at CIL(HQ), Calcutta and the report of the committee was approved with the following modification: “On successful completion of training/experience of 3(three) years in our own medical set up, they will be placed in Tech. & Sup. Gr.C.” Accordingly, the revised Cadre Scheme for Para Medical staff Technicians(Pathological/Radiographer) Annexure VI-1 is enclosed. Managements have been requested to take necessary action to implement the above decision.” 15. The plain reading of the above implementation instruction shows that only relaxation was given with respect to three years experience and it has not been stated that any diploma holder was qualified for appointment. In fact, essential qualification of diploma obtained from an institute recognised/approved by the Government remains intact. The plain reading of the above implementation instruction shows that only relaxation was given with respect to three years experience and it has not been stated that any diploma holder was qualified for appointment. In fact, essential qualification of diploma obtained from an institute recognised/approved by the Government remains intact. The contention of the learned counsel that Medical Council of India and the Ministry of Health and Family Welfare, Government of India have not recognised any institution for awarding certificate/diploma/degree in Pathology or other field is confined to para-medical institute and in respect to the institute of the State Government, the same may be approved by the State Government as per the policy decision of that State. The petitioner/respondents have not produced any document to show that the said Medical Laboratory Technology Institute, Kaloor, Kochi was recognised/approved by the State of Kerala. 16. The learned Single Judge has drawn an inference that the petitioners/respondents have been illegally denied appointment on superficial ground as the order of remand in CWJC NO.4106/1996(R) was partly allowed holding that if the respondents are not satisfied with the certificates produced by the petitioners they shall proceed for fresh advertisement otherwise they shall take necessary steps for appointment of the petitioners. It was also held in that order that the authority while passing the order dated 18.09.1998 did not apply his mind and the claim of the petitioners was rejected mechanically. Learned Single Judge has also stated that petitioners are qualified in view of Implementation Instruction no.56. 17. In paragraph 9 of the impugned judgment, interpreting the Instruction No.56, learned Single Judge observed as follows:- “.......Instruction no.56 that Technicians with three years' experience from recognized institute would be continued to be recruited and inducted in T&S Grade-'C', whereas, in the first para there is no requirement of having a Degree from recognised institute.” Since the Technicians with three years experience from the recognised institutes are not generally available, in Instruction No.56-by amendment to the note -what was relaxed was the three years experience from the recognised institute. The wordings, “qualified technicians” occurring in the Instruction No.56 clearly indicates that pre-requisite qualification of the Technicians, viz (i) Matriculate; (ii) Diploma in Pathology from Institute recognised/approved by the Government remained in tact We are of the view that learned Single Judge misconstrued the wordings in the said Instruction No.56 dated 14.11.1994 and proceeded on a wrong footing as if there was relaxation in the essential qualification of the Technicians. 18. The contention of the learned counsel for the resoondents that the persons having diploma from the institute are working in the higher grade and the denial of appointment to the petitioners/respondents is arbitrary is not acceptable as it has been held in the case of Pramod Kumar v. U.P. Secondary Education Services Commission, reported in (2008)7 SCC 153 . In the said case in paragraphs 16 to 18 it has been held as follows:- “16. The qualifications for holding a post have been laid down under a statute. Any appointment in violation thereof would be a nullity. 17. It is a matter of some concern that appointments are being offered by the authorities of the State without verifying the fact as to whether the degree(s) possessed by the candidate(s) are valid or not. It was an ad hoc appointment. Why despite the same, he was allowed to obtain degree from another university is not known. 18. If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly, when the statute in no unmistakable term says so. Only an irregularity can be.” 19. In the case of Vice Chancellor, M.D. University, Rohtak Vs.Jahan Singh, reported in (2007) 5 SCC 77 which has also been referred to in the impugned judgment,it has been observed by the Hon'ble Supreme Court that even if some benefits have been granted to one person illegally such benefit cannot be claimed by others. In paragraph 28 it has been held as under:- “28. Even assuming the respondent and the said Shri Taneja were similarly situated, we may observe that Article 14 of the Constitution of India carries with it a positive concept. Article 14 of the Constitution cannot be invoked for perpetuating illegality.” 20. In paragraph 28 it has been held as under:- “28. Even assuming the respondent and the said Shri Taneja were similarly situated, we may observe that Article 14 of the Constitution of India carries with it a positive concept. Article 14 of the Constitution cannot be invoked for perpetuating illegality.” 20. The learned Single Judge has tried to distinguish the case of the petitioners/respondents on the ground that in the said case the benefit was granted to one person and held that the appellants have admitted that several persons in the Company are holding the degree/diploma from the same institute and are in employment in the Company. This reasoning and finding of the learned Single Judge is against the provisions of Article 14 of the Constitution of India which says that Article 14 cannot be invoked perpetuating illegality and principles underlying Article 14 carries with it positive concept. 21. On query, learned counsel for the appellants has submitted that no appointment was made in the year 1994 and the posts were surrendered and they have now advertised for the said post. 22. Learned counsel for the respondents has filed appointment letter issued by the State to one of the petitioners who had obtained diploma from the said institute and contended that such diploma is no bar for appointment. The submission of the learned counsel for the respondents is not supported by any advertisement regarding essential qualification prescribed by the State Government for appointment to the post on which one of the petitioners has been appointed and it is settled legal position that when requisite qualification for appointment to a post has been laid down by an organization especially which comes within the definition of the State then the eligibility criteria has to be fulfilled by a person seeking appointment to the post and if he does not have requisite qualification the same cannot be condoned. 23. Thus, in view of the discussions made above, we find that the impugned judgment and order of the learned Single Judge is not sustainable in law or on facts and the same is hereby set aside. 24. The L.P.A is hereby allowed.