Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1436 (ALL)

Rohit v. State of U. P.

2018-06-22

MAHESH CHANDRA TRIPATHI, NEERAJ TIWARI

body2018
JUDGMENT : Mahesh Chandra Tripathi, J. Heard Shri Mahipal Singh, learned counsel for the petitioner-appellant and Shri Abhishek Srivastava, learned counsel appearing for Electricity Service Commission, U.P. Power Corporation Limited, Lucknow. 2. The petitioner-appellant is before this Court assailing the order dated 30.5.2018 passed by learned Single Judge of this Court in Writ A No.13216 of 2018 (Rohit vs. State of UP and 2 others) by which he has proceeded to dismiss the writ petition in question. 3. Learned counsel for the petitioner-appellant submits that the appellant possesses the requisite qualification as prescribed under the advertisement in question and his CCC certificate has been issued by the appropriate authorities and it is recognized as equivalent certificate. He was declared successful in the written examination as well as interview and thereafter, he was selected as Technician Grade-II (Electrical) in U.P. Power Corporation Limited on 18.8.2015. He joined his duties on the same day i.e. 18.5.2018. After completing the probation period of two years, the appellant was confirmed on his post and since then, he is still working on the post in question. The selection of the appellant has been cancelled without giving any opportunity of hearing to the appellant on the ground that the Corporation has constituted a Committee for the purpose of determining the equivalence of the educational qualification of the candidates. The Committee constituted by the Corporation has accepted the norms/parameters/guidelines provided in the Government order dated 3.5.2016. The writ petition was filed assailing the order of the third respondent dated 13.5.2018 on the ground that similar writ petition was disposed of, by granting interim order but learned Single Judge has dismissed the writ petition without giving proper opportunity of hearing. Learned Single Judge has committed manifest error of law in dismissing the writ petition as on the same ground he has allowed/disposed of the similar writ petition No.12520 of 2018 on 24.5.2018. On the next date i.e. 31.5.2018, learned Single Judge has also disposed of two other similar writ petitions. The impugned order is causing serious prejudice to the appellant and in case the impugned order is allowed to stand, then he shall suffer an irreparable loss and injury. 4. On the next date i.e. 31.5.2018, learned Single Judge has also disposed of two other similar writ petitions. The impugned order is causing serious prejudice to the appellant and in case the impugned order is allowed to stand, then he shall suffer an irreparable loss and injury. 4. On the other hand, Shri Abhishek Srivastava, learned counsel appearing for the Corporation has vehemently opposed the special appeal by contending that rightful order has been passed by learned Single Judge and no interference is required with the order impugned. He has placed reliance on the judgement and order passed by learned Single Judge of this Court dated 7.10.2017 in Writ A No.41750 of 2015 (Prashant Kumar Jaiswal and others vs. State of UP and others) connected with bunch of writ petitions. In compliance of the aforesaid judgment, the Electricity Service Commission has selected the eligible candidates in place of ineligible candidates on 21.6.2018. Relevant paragraphs of the judgment are quoted herein below:- "This Court is of the considered view that a recognised qualification must be recognised to be an integral facet of Article 16 and consequently of the right of "equal opportunity". It is accordingly declared as such. Acceptance of certificates of doubtful validity or dubious credibility would be clearly violative of Article 16. The submission therefore that any certificate granted by any organisation irrespective of whether it is recognised as per established norms should be accepted is untenable and liable to be rejected outright. The acceptance of this proposition would have deleterious consequences and unleash pernicious possibilities. 5. The Court additionally bears in mind that the selections in question were for recruitment to a public service, a service in and under a corporation of the State. Certificates and diplomas issued by organisations which this Court chooses to describe as "sweatshop centers" which have no recognition or approval cannot be accepted as rendering a holder thereof eligible for employment in public service. An incumbent aspiring to enter public service or a corporation of the State must possess qualifications which are recognised or capable of being recognised in law. This because of the very nature of the employment being sought. After all, the incumbent and others like him in public service are the sinews of the organ which we call the State. An incumbent aspiring to enter public service or a corporation of the State must possess qualifications which are recognised or capable of being recognised in law. This because of the very nature of the employment being sought. After all, the incumbent and others like him in public service are the sinews of the organ which we call the State. On them is placed the burden and obligation to ensure the well being of the citizen, to secure the welfare of the people. A member of such a service must necessarily be possessed of certain core qualifications of a particular standard. Dealing with the issue of public service and employment in the context of appointments having been obtained on the basis of false caste certificates, the Supreme Court in Chairman and Managing Director FCI & others Vs. Jagdish Balaram Bahira and others made the following significant and eloquent observations which would ring true even in the present case and guide the Court in dealing with such issues. The Supreme Court noted:- "77. Service under the Union and the States, or for that matter under the instrumentalities of the State sub-serves a public purpose. These services are instruments of governance. Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Affirmative action in our Constitution is part of the quest for substantive equality. Available resources and the opportunities provided in the form of public employment are in contemporary times short of demands and needs. Hence the procedure for selection, and the prescription of eligibility criteria has a significant public element in enabling the State to make a choice amongst competing claims. The selection of ineligible persons is a manifestation of a systemic failure and has a deleterious effect on good governance. Firstly, selection of a person who is not eligible allows someone who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits upon an imposter undeservingly. These effects upon good governance find a similar echo when a person who does not belong to a reserved category passes of as a member of that category and obtains admission to an educational institution. Thirdly, an illegality is perpetrated by bestowing benefits upon an imposter undeservingly. These effects upon good governance find a similar echo when a person who does not belong to a reserved category passes of as a member of that category and obtains admission to an educational institution. Those for whom the Constitution has made special provisions are as a result ousted when an imposter who does not belong to a reserved category is selected. The fraud on the constitution precisely lies in this. Such a consequence must be avoided and stringent steps be taken by the Court to ensure that unjust claims of imposters are not protected in the exercise of the jurisdiction under Article 142. The nation cannot live on a lie. Courts play a vital institutional role in preserving the rule of law. The judicial process should not be allowed to be utilised to protect the unscrupulous and to preserve the benefits which have accrued to an imposter on the specious plea of equity. Once the legislature has stepped in, by enacting Maharashtra Act XXIII of 2001, the power under Article 142 should not be exercised to defeat legislative prescription. The Constitution Bench in Milind spoke on 28 November 2000. The state law has been enforced from 18 October 2001. Judicial directions must be consistent with law. Several decisions of two judge benches noticed earlier, failed to take note of Maharashtra Act XXIII of 2001. The directions which were issued under Article 142 were on the erroneous inarticulate premise that the area was unregulated by statute. Shalini noted the statute but misconstrued it. 91. Medical education is what middle-class parents across the length and breadth of the county aspire for their children (whether this will continue to be so in future is a moot question). There is intense competition for a limited number of under-graduate, post-graduate and super-speciality seats. This can furnish no justification for recourse to unfair means including adopting a false claim to belong to the reserved category. The fault - lines of our system, be it in education, health or law, are that its lethargy and indolence furnish incentives for the few who choose to break the rules to gain an unfair advantage. This can furnish no justification for recourse to unfair means including adopting a false claim to belong to the reserved category. The fault - lines of our system, be it in education, health or law, are that its lethargy and indolence furnish incentives for the few who choose to break the rules to gain an unfair advantage. In such a situation, the court as a vital institution of democratic governance must be firm in sending out a principled message that there is no incentive other than for behaviour compliant with rules and deviance will meet severe reprimands of the law." (emphasis supplied) The views expressed by the Supreme Court in Jagdish Balaram highlighting the concepts of "substantive equality", the recognition of "limited opportunities" all bid us to hold that in matters of public employment the processes undertaken must be strictly tested on the principles enshrined in Articles 14 and 16 of the Constitution. The Supreme Court has aptly described public services as "instruments of governance". This clearly underpins the conclusion arrived at by this Court that there can be no entry in public services on the strength of unrecognised qualifications. This Court therefore finds itself unable to accept the submission that an unrecognised qualification or for that matter a certificate issued by an organisation which is not recognised or acknowledged by law can be accepted in recruitment to a public service or in an organisation which is State as understood in terms of Article 12 of the Constitution. CONCLUSIONS In the end, the Court records the following conclusions:- 1. A recognised qualification is an essential facet of Article 16 of the Constitution. 2. No rights can be recognised in a candidate aspiring to enter public service on the strength of an unrecognised qualification or one granted by an institution which is not conferred the authority to grant the same in accordance with law. 3. The qualification as prescribed by the respondents does not merit interference at the behest of the petitioners. 4. The decision of the Board of Directors of the Corporation dated 23 November 2015 was an act of ratification and therefore does not merit interference. 5. The Commission failed to undertake any enquiry in respect of equivalence of qualifications. It undertook a wholly perfunctory exercise and that too prompted only by the interim directions of this Court. 6. 4. The decision of the Board of Directors of the Corporation dated 23 November 2015 was an act of ratification and therefore does not merit interference. 5. The Commission failed to undertake any enquiry in respect of equivalence of qualifications. It undertook a wholly perfunctory exercise and that too prompted only by the interim directions of this Court. 6. Even in this exercise no accepted or legally sustainable norms were applied to adjudge the equivalence of certificates. 7. The equivalence of qualifications cannot be left to depend or rest upon a self certification of candidates. 8. No certificate can possibly be accorded equivalence unless an enquiry is addressed towards its course content and syllabus. 9. None of the candidates holding other than CCC certificates were shown to hold qualifications recognisable in law. Their inclusion in the select list has clearly tainted the recruitment exercise. It has resulted in the induction of candidates who were not entitled to be selected or offered appointment. 10. Since their inclusion in the select list is invalid and would consequently merit the select list being redrawn, the petitioners are not liable to be non suited on the basis of the cut off marks prescribed by the Commission. Accordingly and in light of the above discussion and the conclusions recorded above, the select list prepared by the respondents is rendered unsustainable and must in consequence be set aside. The writ petitions preferred by the non selected candidates are therefore allowed to the extent indicated below. The Court negatives the challenge to the decision of the Board of the Corporation dated 23 November 2015 and the condition of eligibility contained in the two advertisements. All interim orders operating on the writ petitions shall stand discharged in order to enable the Commission to proceed in the matter in light of the directions being issued herein after. Writ Petition No. 18129 of 2017 shall stand disposed of in light of the above and the directions issued herein. The select list drawn up pursuant to the advertisements in question insofar as it includes candidates who do not hold a CCC certificate conferred or recognised by NIELIT is quashed. The respondents shall in consequence redraw the select list restricting it to candidates who hold a recognised CCC certificate or a qualification recognised in law as being equivalent thereto. The select list drawn up pursuant to the advertisements in question insofar as it includes candidates who do not hold a CCC certificate conferred or recognised by NIELIT is quashed. The respondents shall in consequence redraw the select list restricting it to candidates who hold a recognised CCC certificate or a qualification recognised in law as being equivalent thereto. The Commission shall as a result of the above, reframe the merit list and publish the results thereof afresh. All consequences to follow." 6. We have proceeded to examine the record in question and perused the order impugned, wherein learned Single Judge found that the petitioner did not possess the requisite certificate of Course on Computer Concepts (CCC) on the last date of submission of application form. In the advertisement in question it was mentioned as Course on Computer Concepts (CCC) or its equivalent course. The appellant passed the CCC Course from the National Institute of Electronics and Information Technology in October, 2015 and his CCC certificate was issued on 19.11.2015, which is more than one year after the last date of the submission of the testimonials. On the date of the submission of the online application form, the appellant has not passed the CCC Course. He has done one year D.S.T. Course from the Skill Computer Centre, which is not equivalent to CCC certificate. 7. Admittedly, the petitioner did not possess the CCC certificate on the last date of submission of application form. Some unsuccessful candidates have also approached this Court by preferring several writ petitions seeking the revision of the select list for appointment to the post of Technician Grade-II (Training Electrical) after excluding the candidates, who had obtained computer eligibility certificates on dates subsequent to 30th September, 2014 as also those candidates, who did not possess the CCC certificate as awarded by DOEACC Society. Learned Single Judge has allowed the bunch of writ petitions led by Writ A No.41750 of 2015 (Prashant Kumar Jaiswal and others vs. State of UP and others) with the directions quoted as above. In pursuance thereof, the Electricity Service Commission has published a select list on 21.6.2018 selecting the eligible candidates in place of ineligible candidates. 8. We do not find any infirmity or illegality in the order of learned Single Judge. 9. Consequently, the Special Appeal is dismissed.