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2018 DIGILAW 2173 (ALL)

YOGENDRA SINGH RANA v. STATE OF U. P.

2018-10-10

ASHWANI KUMAR MISHRA

body2018
JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—Uttar Pradesh Subordinate Service Selection Commission, Lucknow, had initiated recruitment process vide Advertisement No. 12/2016 for filling up 1917 post of Assistant Accountant; 255 post of Auditor; and 702 post of Assistant Treasury Accountant in different departments of the State of Uttar Pradesh. The advertisement in Table-3 provided for educational qualification to be possessed by a candidate for the post. Since the dispute in this petition is restricted to the post of Assistant Accountant, as such, the qualification for such post alone needs to be examined. The qualification as per the advertisement reads as under : in Øekad foHkkx dk uke in uke vfuok;Z vgZrk 1- funs'kd] vkarfjd ys[kk ,oa ys[kk ijh{kd] mRrj Áns'k] y[kuÅ lgk;d ys[kkdkj 1- Hkkjr esa fof/k }kjk LFkkfir fo'ofo|ky; ls dkWelZ esa Lukrd dh mikf/k vFkok ljdkj }kjk ekU;rk izkIr fo'ofo|ky; vFkok laLFkku ls ,dkmaVsalh esa LukrdksRrj fMIyksekA 2- ljdkj }kjk ekU;rk izkIr fdlh laLFkku ls dEI;wVj lapkyu eas ^vks^ ysoy fMIyksekA 2. The recruitment is otherwise governed by the provisions of the U.P. Government Department Subordinate Accounts Cadre (Non-Gazetted) Service Rules, 2014. These rules have been framed by the Governor exercising his power under the proviso to Article 309 of the Constitution of India. Part-IV of the rules prescribes the qualification for the different posts. Rule 10 is relevant for the present purposes and is reproduced hereinafter : “10. A candidate for direct recruitment to the post of Assistant Accountant in the Service must possess the following qualifcations: (i) Bachelor’s Degree in Commerce from a University established by law in India or a Post Graduate Diploma in Accountancy from a University or Institute recognZed by the Government. (ii) ‘O’ level Diploma in computer operation from an Institute recognZed by the Government.” 3. Requirement of possessing ‘O’ level diploma in computer operation from an institute recognZed by the Government is an essential educational qualification for the post in question. 4. The Commission has issued a notification on 27.8.2018, which reiterates the educational qualification required for appointment to the post of Assistant Accountant. This notification also recites that there exists no Government order providing for grant of equivalence to ‘O’ level diploma required for the post. 4. The Commission has issued a notification on 27.8.2018, which reiterates the educational qualification required for appointment to the post of Assistant Accountant. This notification also recites that there exists no Government order providing for grant of equivalence to ‘O’ level diploma required for the post. A further recital is contained in this notification that National Institute of Electronics & Information Technology (NIELIT) vide its letter dated 12.4.2018 has clarified that they have not authorZed any other agency for issuing ‘O’ level diploma. Based upon such assertions the Commission has taken a decision to entertain certificate of ‘O’ level diploma issued by NIELIT and also ‘O’ level certificate issued by a University. Such certificates must be issued on a date prior to last date of applying for appointment i.e. 4.8.2016. It is this notification of 27th August, 2018, which is the cause of concern for the petitioners and a prayer has been made to quash it. A further prayer is made to allow the petitioners to participate in the interview on the basis of successful performance in the written examination, without taking any objection relating to their computer qualification and also to declare petitioners’ final result in the selection. 5. Petitioners have applied for appointment to the post of Assistant Accountant and have also cleared written examination conducted on 11.9.2016. According to the petitioners, they possess qualification higher than ‘O’ level diploma and, are therefore, eligible to be considered for appointment to the post in question. Petitioner No. 1 claims to be Master of Science in Computer from Maharishi Dayanand Rohtak University and is also having postgraduate diploma in Computer Application from Makhan Lal Chaturvedi University of Journalism & Communication, Bhopal. Petitioner No. 2 claims to be possessing a Diploma in Computer Operation & Programming Assistant awarded by Government Industrial Training Institute, Noida. Similarly, all other petitioners claim that they possess postgraduate diploma in computer application awarded by different recognZed bodies/universities. Petitioner No. 7 claims that he has ‘O’ level diploma from National Institute of Computer Technology, Meerut. 6. It is asserted on behalf of the petitioners that NIELIT (formerly known as DOEACC Society) awards certificates in computer education of ‘O’ level, ‘A’ level and ‘B’ level. ‘O’ level, as per petitioners, is treated as equivalent to foundation level while ‘A’ level certificate is equivalent to Advance Diploma and ‘B’ level certificate is equivalent to MCA level. 6. It is asserted on behalf of the petitioners that NIELIT (formerly known as DOEACC Society) awards certificates in computer education of ‘O’ level, ‘A’ level and ‘B’ level. ‘O’ level, as per petitioners, is treated as equivalent to foundation level while ‘A’ level certificate is equivalent to Advance Diploma and ‘B’ level certificate is equivalent to MCA level. Government of India is stated to have granted recognition to the certificate issued by NIELIT accordingly. ‘O’ level diploma is of one year course and its syllabus has been brought on record of the writ petition as Annexure-23. As per the syllabus annexed, ‘O’ level course is of 500 hours duration and is at par with 1st year of bachelors course. Similarly, ‘A’ level (Part-I) course is of 625 hours duration to be placed at par with 2nd year of Bachelors course and ‘A’ level (Part-II) course of of 625 hours is to be placed at par with 3rd year of bachelors course. 7. ‘O’ level course is equivalent to foundation level course of computer application, which can be obtained by a student possessing 10+2 or ITI certificate. Its syllabus is specified in clause 6.2 & 6.3, which reads as under : “6.2 Syllabus for DOEACC ‘O’ level course: The syllabus for ‘O’ level has been diversified. Consequent on diversification, it contains one compulsory module and three elective modules. In the diversified syllabus, new subjects have been added as electives and certain amendments have been made to the syllabus on some of the subjects. Examination for ‘O’ level will be held only under the diversified syllabus from January, 2000 onwards. Certificate will be issued to candidates, who are registered at ‘O’ level and have successfully completed two modules under the diversified syllabus for ‘O’ level, including compulsory module of ‘Personal Computer Software’. Such candidates are required to pay a fee of Rs. 250/- by Demand Draft in favour of DOEACC payable at New Delhi. The papers for ‘O’ level are as under : M1 IT Tools and Application M2 Business Systems M3 Internet and Web Design M4.1 Programming & Problem Solving through C Lagunage M4.2 Programming through Visual Basic (One subject out of M4.1/M4.2 is to be chosen) The syllabus for ‘O’ level can be obtained by post or in person form the DOEACC Society and the cost is Rs. 125/-. 6.3 Project: At ‘O’ level there is one project. 125/-. 6.3 Project: At ‘O’ level there is one project. No marks are assigned Candidates are expected to carry out a project successfully and submit certificate in the prescribed format from the head of the institute running the accredited course or the organisation of which the candidate is an employee.” 8. Petitioners have also brought on record syllabus of courses studied by them in order to substantiate that they possess higher qualification than what is required for the ‘O’ level diploma, and therefore, petitioners are entitled to be considered for appointment. With reference to the syllabus prescribed for ‘O’ level diploma course, it is contended on behalf of the petitioners that the rules require only an ‘O’ level diploma as essential qualification, which is not limited to a certificate awarded by NIELIT only. Petitioners have also relied upon a judgment of this Court in Abha Tripathi v. State of U.P and others, 2016(9) ADJ 739 , to contend that qualification higher than a ‘CCC’ certificate has been held to be sufficient qualification for appointment. This judgment is stated to have been affirmed by different Division Benches. Argument is that ‘O’ level certificate awarded by NIELIT cannot be insisted upon as being the only qualification admissible for the post in question and thereby excluding higher qualification in the same field of study. 9. A short counter-affidavit has been filed by the Commission referring to the qualification prescribed in the rules and also in the advertisement. It is stated that the notification dated 27.8.2018 is consistent with the terms of advertisement and also provisions of statute, which does not suffer from any infirmity. It is stated that during the process of selection, applications were received by the Commission for permitting applicants who possess proficiency in computer operation relying upon other qualifications and that is why appropriate clarification was sought from NIELIT. It is contended by the respondents that no writ can be issued contrary to the specifications contains in the rules, particularly when the petitioners have not even challenged the specific clause contained in the advertisement. It is submitted that qualification possessed by the petitioners have not been declared as equivalent to ‘O’ level diploma, and therefore, petitioners cannot be permitted to participate in the recruitment process. It is submitted that qualification possessed by the petitioners have not been declared as equivalent to ‘O’ level diploma, and therefore, petitioners cannot be permitted to participate in the recruitment process. Reliance is placed upon a decision of the Apex Court in Prakash Chand Meena and others v. State of Rajasthan and others, (2015) 8 SCC 484 . Relying upon the aforesaid judgment respondents submit that having proceeded to take part in the recruitment exercise without any challenge to the rules or prescription of qualification in advertisement petitioners cannot be permitted to challenge the notification dated 27.8.2018. Reliance is also placed upon a Division Bench judgment of this Court in Prashant Kumar Chaurasiya v. State of U.P. and others being Special Appeal No. 140 of 2017, decided on 7.3.2017. 10. I have heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddharth Khare, learned counsel for the petitioners, Sri Kailash Singh Kushwaha, learned counsel for the Commission, Sri Vikram Bahadur Singh, learned Standing Counsel for the State authorities, Sri Seemant Singh, learned counsel for the intervenors and have perused the materials brought on record. 11. Recruitment to the post of Assistant Accountant is to be made in accordance with the Rules of 2014, which clearly requires possessing of ‘O’ level diploma in computer operation from an institute recognZed by the Government. The prescription of qualification in the advertisement is to the same effect. Neither the rules have been challenged, nor the advertisement is questioned. Rather, petitioners have applied for appointment with their open eyes and were aware that possessing of ‘O’ level diploma is an essential qualification required for appointment to the post of Assistant Accountant. The notification dated 27.8.2018 reiterates the eligibility required for appointment to the post of Assistant Accountant. It merely specifies that no Government Order has been issued granting equivalence in favour of any other courses with ‘O’ level diploma. It also records that NIELIT has also not authorZed to any other agency/organZation to issue such certificate. The Secretary of the Commission has therefore clarified that ‘O’ level diploma issued by NIELIT or by any University alone would be acceptable qualification for appointment to the post in question. The notification dated 27.8.2018 is not shown to be in derogation of any provision of the Rules of 2014 or the stipulations contained in the Advertisement No. 12 of 2016. The notification dated 27.8.2018 is not shown to be in derogation of any provision of the Rules of 2014 or the stipulations contained in the Advertisement No. 12 of 2016. It merely clarifies that it is certificate of ‘O’ level that alone has been granted recognition by the Government. The communication appears more to be in the nature of a clarification, which is consistent with the rules and advertisement. Attention of the Court has not been invited to any provision of the rules or the advertisement which could be said to be inconsistent with the notification. 12. Main thrust of Sri Ashok Khare’s argument is that a higher qualification since is possessed by petitioners, as such their claim ought not to be ignored only because they do not possess ‘O’ level diploma. To substantiate his submission Sri Khare has placed the syllabus of ‘O’ level course vis-a-vis the syllabus of course cleared by the petitioners. 13. Argument of Sri Khare is countered by Sri Kushwaha by submitting that knowledge of computer operation is distinct from expertise in the field of computer application, inasmuch as the focus in higher qualification is on programming whereas the requirement for the post in question is computer operation. It is contended that the requirement of qualification for a post has to be prescribed by the employer and its assessment ought not to be interfered with unless it is shown to be patently arbitrary. 14. Ordinarily, this Court in exercise of jurisdiction under Article 226 of the Constitution of India would not enter into the fields of expertise/policy and the task would be left to be performed by the employer or by the Government. The argument of Sri Kushwaha is that proficiency in computer operation is the requirement for the post and not any expertise in the field of software. It would be relevant, at this stage, to note the qualification prescribed for other posts advertised by the same recruitment notification. For the post of Assistant Accountant in the office of U.P. Project Corporation Limited, the applicant is required to possess knowledge of tally software or such other software which may in use in the field of accounting. It is clearly discernible that different areas/fields of computer expertise have been emphasZed in the advertisement depending upon the specific requirement of posts. 15. It is clearly discernible that different areas/fields of computer expertise have been emphasZed in the advertisement depending upon the specific requirement of posts. 15. In State of Rajasthan and others v. Lata Arun, (2002) 6 SCC 252 , the Apex Court has been pleased to observe as under in para 10 & 13 : “10. The points involved in the case are twofold: one relating to prescription of minimum educational qualification for admission to the course and the other relating to recognition of the Madhyama Certificate issued by the Hindi Sahitya Sammelan, Allahabad as equivalent to or higher than +2 or 1st year of TDC for the purpose of admission. Both these points relate to matters in the realm of policy decision to be taken by the State Government or the authority vested with power under any statute. It is not for Courts to determine whether a particular educational qualification possessed by a candidate should or should not be recognZed as equivalent to the prescribed qualification in the case. That is not to say that such matters are not justiciable. In an appropriate case the Court can examine whether the policy decision or the administrative order dealing with the matter is based on a fair, rational and reasonable ground; whether the decision has been taken on consideration of relevant aspects of the matter; whether exercise of the power is obtained with mala fide intention; whether the decision serves the purpose of giving proper training to the candidates admitted or it is based on irrelevant and irrational considerations or intended to benefit an individual or a group of candidates. 13. From the ratio of the decisions noted above, it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for Courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority.” (Emphasis supplied) 16. In Prakash Chand Meena (supra) a similar issue arose before the Apex Court in the matter relating to selection for appointment to the post of Physical Training Instructor Grade-III. In the context of those who claim to possess higher qualification the Apex Court has observed as under : “10. In Prakash Chand Meena (supra) a similar issue arose before the Apex Court in the matter relating to selection for appointment to the post of Physical Training Instructor Grade-III. In the context of those who claim to possess higher qualification the Apex Court has observed as under : “10. For the aforesaid reasons, in our view the Division Bench [Dinesh Kumar Panwar v. Suresh Chand, Civil Special Appeal (Writ) No. 1181 of 2012, decided on 1-7-2013 (Raj), 2013 SCC OnLine Raj 3770] erred in interfering with the judgment of the learned Single Judge [Prakash Chand Meena v. State of Rajasthan, 2012 SCC OnLine Raj 1898] who had correctly allowed the writ petitions filed against the result declared by the Commission on the basis of the State Government’s Letter dated 6-1-2010. The impugned judgment [Dinesh Kumar Panwar v. Suresh Chand, Civil Special Appeal (Writ) No. 1181 of 2012, decided on 1-7-2013 (Raj), 2013 SCC OnLine Raj 3770] under appeal is, therefore, set aside and the judgment and order of the learned Single Judge [Prakash Chand Meena v. State of Rajasthan, 2012 SCC OnLine Raj 1898] is restored. That should be complied forthwith. The appeals are accordingly allowed but without any order as to costs.” In Prashant Kumar Chaurasiya (supra), this Court has observed as under : “We have proceeded to peruse the advertisement in question and the advertisement clearly reflects that the minimum eligibility criteria prescribed for offering appointment as Assistant Accountant was that the candidate must be a Graduate in Commerce and must possess Computer ‘O’ Level Diploma issued by the DOEACC now called NIELIT. The petitioner admittedly has not got to his credit Computer ‘O’ Level Diploma issued by the DOEACC but contrarily to he has got his credit CHM-O Level Diploma issued by DOEACC. Once there is material distinction in between Diploma in Computer ‘O’ Level issued by DOEACC and ‘CHM-O Level Diploma’ issued by DOEACC, then certainly in our considered opinion, the petitioner was not having the requisite eligibility criteria. Fixation of eligibility criteria is the domain of employer and Courts have no authority to go into the issue of equivalence. Once there is material distinction in between Diploma in Computer ‘O’ Level issued by DOEACC and ‘CHM-O Level Diploma’ issued by DOEACC, then certainly in our considered opinion, the petitioner was not having the requisite eligibility criteria. Fixation of eligibility criteria is the domain of employer and Courts have no authority to go into the issue of equivalence. In view of this, once a conscious decision has already been taken by the authority concerned that the petitioner was not having the requisite eligibility criteria for offering appointment as Assistant Accountant, then in exercise of authority of judicial review we cannot intrench upon the field of eligibility by proceeding to enlarge the field of eligibility. In view of the above, the special appeal sans merit and it is accordingly, dismissed.” 17. The observation of the Apex Court in Prakash Chand Meena (supra) that once higher qualification was not specified in the advertisement the course open for those possessing higher qualification was to challenge the advertisement is apposite in the facts of this case. The rules or the advertisement otherwise does not admit of any equivalence, and therefore, there does not appear to be any scope for confusion in that regard. Even in the case of equivalence which has to be granted by the competent authority on or before initiation of recruitment process, or else, other similarly placed persons may loose out as they may not have applied for the post. It is not that the issue is not justifiable, but the scope would have to be restricted to judicially accepted and recognZed principles. The notification dated 27.8.2018, as per which only those certificates of ‘O’ level would be entertained as have been issued by NIELIT or a university is otherwise not shown to be irrational or arbitrary. 18. In the facts and circumstances of the present case, the requirement of possessing adequate knowledge in computer operation is specified in the rules and the advertisement. The nature of alleged higher qualification would not only require a detailed comparative assessment of two qualifications, but it would have to be seen as to whether such higher qualification carries with it a higher proficiency in the field of computer operation. The nature of alleged higher qualification would not only require a detailed comparative assessment of two qualifications, but it would have to be seen as to whether such higher qualification carries with it a higher proficiency in the field of computer operation. Such assessment would lie in the field of policy, and therefore, would not justify interference by the writ Court, particularly when petitioners were aware throughout of the educational qualification prescribed in the rules and the advertisement and no challenge was made to it at the threshold. 19. Having acquiesced to the process, the petitioners cannot be permitted to question the wisdom of employer in prescribing a particular qualification and thereby suggesting that determination of qualification in the advertisement was irrational. The Division Bench of this Court in Prashant Kumar Chaurasiya (supra) has also observed that interference by the writ Court would ordinarily not be required in such matters. 20. In view of the discussions, aforesaid, no case for interference is made out and this writ petition, accordingly, fails and is dismissed.