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2016 DIGILAW 689 (UTT)

State of Uttarakhand v. Ritu Agarwal

2016-10-03

ALOK SINGH, K.M.JOSEPH

body2016
JUDGMENT : K.M. Joseph, J. 1. Appellants are the State and the Child Development Project Officer. By the order challenged in the Appeal, the learned Single Judge directed the candidature of the writ petitioner to the post of Mukhya Sevika to be considered. It was, however, made clear that the appointment will only be given to the writ petitioner, if posts are lying vacant, as contended by the learned counsel for the writ petitioner. Petitioner applied for the post of Mukhya Sevika. She was working as Angan Bari Karyakarti. The post of Mukhya Sevika is a higher post than Angan Bari Karyakarti. It is by way of promotion from Angan Bari Karyakarti and by direct recruitment that the post of Mukhya Sevika is to be filled. Admittedly, one of the essential qualifications for the post of Mukhya Sevika is that the candidate must have Sociology as a subject in graduation. The writ petitioner was not having Sociology as a subject in graduation, but she was post graduate in Sociology. Her candidature was, however, rejected as she was not having the minimum qualification. The learned Single Judge has reasoned as follows: "4. On the date of advertisement i.e. 04.05.2011, the petitioner through was not having Sociology as subject in graduation, but was post-graduate in Sociology, hence, she applied. The candidature of the petitioner has been rejected, as she was not having minimum qualification of Sociology subject in graduation. This contention of the respondent No. 3/Uttarakhand Board of Technical Education as well as the State of Uttarakhand is totally misconceived, though the petitioner does not have the subject Sociology in graduation, but she has a post graduate degree in Sociology. This being in the same stream i.e. the stream of humanities. It is, therefore, if at all has to be considered as a higher qualification than graduation with Sociology. The rejection of the petitioner’s candidature on this ground is totally wrong." 2. It is on the said basis that the direction has been issued. 3. We heard Mr. H.M. Bhatia, Brief Holder for the State of Uttarakhand/appellants and Sri Sanjay Bhatt, learned counsel for the respondent. 4. The rejection of the petitioner’s candidature on this ground is totally wrong." 2. It is on the said basis that the direction has been issued. 3. We heard Mr. H.M. Bhatia, Brief Holder for the State of Uttarakhand/appellants and Sri Sanjay Bhatt, learned counsel for the respondent. 4. The reasoning of the learned Single Judge we have already noticed, is that the writ petitioner has not done graduation with Sociology as subject, but she has done post graduation in Sociology and this being in the same stream i.e. the stream of humanities and it is, therefore, if at all has to be considered as a higher qualification than graduation with Sociology. The rejection of the writ petitioner’s candidature is wrong. The reasoning and finding of the learned Single Judge is clearly insupportable. What the employer has fixed as the requisite qualification is that the candidate must have the essential qualification of graduation in Sociology. Admittedly, the writ petitioner has not done graduation in Sociology. The inquiry of the Court should have ended there. There was no occasion in law for the Court to consider the fact that though the writ petitioner has not done graduation in sociology, her possession of post graduation in Sociology will suffice on the basis of two reasons given, firstly, it is stated that it is in the same stream i.e. the stream of humanities and secondly, post graduation is a higher qualification. Since the issue has received the attention of the Hon’ble Apex Court also, we deem it appropriate to refer to the said case law. In State of Punjab and Others vs. Anita and Others reported in (2015) 2 SCC 170 , the Hon’ble Apex Court took the view that it is imperative for the candidate to possess the statutory qualification, which was JBT/ETT. The possession of higher qualification of M.A., M.Sc., M.Com. etc. was found to be inconsequential. In the course of the judgment, the Hon’ble Apex Court dealt with the earlier case law, namely, Jyoti K.K. vs. Kerala Public Service Commission reported in (2010) 15 SCC 596 and this is how the Court proceeded to distinguish the said judgment: “14. To be fair to the learned counsel for the private respondents, we may also make a reference to the decision rendered by this Court in Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596. To be fair to the learned counsel for the private respondents, we may also make a reference to the decision rendered by this Court in Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596. The learned counsel had invited our attention to para 7 thereof, wherein it was observed as under: (SCC p. 598) “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.” It is no doubt true, that this Court held ion the aforesaid judgment, that if a person had acquired higher qualifications in the same faculty, such qualifications can certainly be stated to presuppose the acquisition of the lower qualification. Possession of the higher qualification would therefore, according to the learned counsel, make a candidate eligible for the post, even though, the candidate does not possess the prescribed qualification. The question however is, whether the above position can be applied to the present case? 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 post of JBT/ETT Teachers. It is not possible for us to accept the aforementioned 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. case 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. 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 recognized 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.” 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 authorizing the appointment of persons with higher qualifications.” 5. Still further, we notice Prakash Chand Meena and Others vs. State of Rajasthan and Others reported in (2015) 8 SCC 484 . Therein, the Hon’ble Apex Court held as follows: “8. Having heard the parties, we have also perused the written submissions filed on behalf of some of them and have perused the judgment of the learned Single Judge and the impugned judgment of the Division Bench. In our considered view, the issue noticed at the outset must be decided on the basis of settled law noticed by the learned Single Bench that recruitment process must be completed as per terms and conditions in the advertisement and as per Rules existing when the recruitment process began. In the present case, the Division Bench has gone to great lengths in examining the issue whether BPEd and DPEd qualifications are equivalent or superior to CPEd qualification but such exercise cannot help the cause of the respondents who had the option either to cancel the recruitment process if there existed good reasons for the same or to complete it as per terms of advertisement and as per Rules. They chose to continue with the recruitment process and hence they cannot be permitted to depart from the qualification laid down in the advertisement as well as in the Rules which were suitably amended only later in 2011. In such a situation, factual jurisdiction cannot change the legal position that the respondents acted against law and against the terms of advertisement in treating such applicants successful for appointment to the post of PTI Gr. In such a situation, factual jurisdiction cannot change the legal position that the respondents acted against law and against the terms of advertisement in treating such applicants successful for appointment to the post of PTI Gr. III who held other qualifications but not the qualification of CPEd. Such candidates had not even submitted separate OMR application form for appointment to the post of PTI Gr. III which was essential as per the terms of advertisement.” 6. Therefore, the fact that this is in the same stream i.e. the stream of humanities and the post graduation is a higher qualification cannot detract from the need for the essential qualification, namely, graduation in Sociology to be possessed by the candidate. Therefore, the judgment of the learned Single Judge cannot be supported. The Appeal is allowed. The judgment of the learned Single Judge will stand set aside. The writ petition will stand dismissed. No order as to costs.