Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 37 (ALL)

PRIYA v. STATE OF U. P.

2019-01-04

SUNEET KUMAR

body2019
JUDGMENT Suneet Kumar, J. Heard Sri Anil Tiwari, learned counsel for the petitioner, learned Standing Counsel appearing for the first respondent and Sri Ashish Mishra, learned counsel appearing for the second and third respondent. 2. The instant writ petition is directed against the order dated 4 October 2016 passed by the third respondent-District and Sessions Judge, Agra, whereby, services of the petitioner on the post of Junior Assistant has been terminated for the reason that she does not fulfill the minimum qualification. It is further prayed that the circular dated 26 August 2016 issued by the second respondent-High Court, Allahabad be quashed insofar it relates to private institutions imparting diploma in computer course. 3. Facts giving rise to the petition, briefly stated, is that the second respondent vide advertisement No. 01/2014 invited applications for Group-C post pursuant to the U.P. Civil Court Staff Centralized Recruitment Scheme, 2014. Pursuant thereof, petitioner applied for the post of Junior Assistant. The appointment on the post of Junior Assistant is governed by the Uttar Pradesh State District Court Service Rules, 2013 (Rules 2013). Schedule-B of the Rules, 2013 provides for the essential qualification for the post in the cadre, which inter alia, mandates that the candidate must possess Course of Computer Concepts 'CCC' certificate issued by the DOEACC Society presently known as National Institute of Electronics & Information Technology (NIELIT). Petitioner has obtained diploma in Computer Application and Information Technology under Kaushal Vridhi Yojna, a one year computer course, being from U.P. Industrial Consultants Ltd. (UPICO) higher qualification in comparison to Course on Computer Concepts i.e. CCC. It is not in dispute that petitioner qualified the written examination and typing test, consequently, she was appointed Junior Assistant vide letter dated 1 October 2015. Petitioner was called upon to show cause by the third respondent vide notice dated 14 September 2016 seeking explanation in respect of her claim for equivalent/or higher qualification than CCC issued by the DOEACC Society. 4. Petitioner responded to the notice by submitting reply on 20 July 2017 stating therein that UPICO is a State Government organization; one year diploma in computer offered by the organization is higher than CCC certificate. The third respondent, however, found no merit in the reply submitted by the petitioner, as such, by the impugned order, services of the petitioner came to be terminated. 5. The third respondent, however, found no merit in the reply submitted by the petitioner, as such, by the impugned order, services of the petitioner came to be terminated. 5. It is urged by the learned counsel for the petitioner that as per circular dated 26 August 2016, issued by the High Court, a candidate possessing higher qualification, in computer science/or equivalent CCC certificate from an institution duly recognized by the State Government, prior to the last date of submission of the application form is required to be offered appointment. Petitioner is having one year diploma from a government organization, whereas, CCC is a three month certificate course. The service of the petitioner could not have been terminated. 6. In rebuttal, learned standing counsel and counsel appearing for the second and third respondent have opposed the petition contending that petitioner does not have the requisite qualification as required under the Rules 2013. UPICO is a company registered under the Companies Act, majority shares are held by various Banking and Financial Institutions. The Articles of Association and Memorandum of Association, inter alia, provide that company was established for providing consultancy services to its clients, both in government and non government/private organizations. It is, therefore, urged that UPICO is not an educational institution; diploma conferred by the company is not recognized by University/Institution, as such, inadmissible under the Rules 2013. There is no documentary evidence to show that the certificate issued by the consultancy company is equivalent/or higher qualification nor there is any material to show that the company was authorized to impart such training and/or the training undergone by the petitioner is equivalent to or higher qualification than CCC. Petition being devoid of merit is liable to be dismissed. 7. Rival submissions fall for consideration. 8. Facts, inter se, parties are not in dispute. Petitioner applied for the post of Junior Assistant pursuant to the advertisement notified by the second respondent and she qualified the written examination and typing test. Petitioner was duly appointed Junior Assistant, however, by the impugned order, her services came to be terminated as she did not possess the requisite minimum qualification prescribed under Rules, 2013. In other words, petitioner did not have CCC certificate issued by the DOEACC Society, thereby, lacking the qualification for the post of Junior Assistant prescribed in the Schedule to the Rules, 2013. Sl. In other words, petitioner did not have CCC certificate issued by the DOEACC Society, thereby, lacking the qualification for the post of Junior Assistant prescribed in the Schedule to the Rules, 2013. Sl. No. Category Posts (“C” Cadre Posts) Essential Qualification Experience 1 Junior Assistant (Admin Grade-II Category “C”/Copyist (Civil & Police Case Diaries/Assistt. Account Clerk/Additional Clerk/Court Clerk/Admin Clerk/Writer & Runner/Typist, etc. Clerk-cum-Typist Category “C”) Intermediate with Special Knowledge of Urdu and Hindi along with a CCC certificate issued by DOEACC Society and 25/30 words, per minute for Hindi/English Typewriting on Computer, Arithmetic, mensuration, elementary land surveying and mapping, Order XXVI of Act No. V of 1908 and Rules (Civil) relating to the work and duties of the Junior Assistant. Note: xxx xxx xxx N.A. 9. It appears that certain hardships were being faced by the District Judges in offering appointment to the selected candidates as some candidates possessed higher qualification in computer science or equivalent to CCC certificate obtained from various Universities/Institutes, consequently, High Court vide resolution dated 3 August 2016 clarified the position with regard to computer certificate/equivalent certificate or higher qualification, which was communicated to all the District Judges subordinate to the High Court vide impugned circular dated 26 August 2016 to act accordingly. Relevant portion of the circular is extracted: “1. The candidates who have obtained requisite qualification i.e. CCC certificate/equivalent certificate or higher qualification in computer science after the last date of submission of on-line application form are disqualified and need not to be considered for the purpose of appointment on the post of Group 'C' (Clerical Cadre) and Stenographer Gr-III in District Courts. 2. The candidates, who have possessed higher qualification in Computer Science or equivalent to CCC certificate from the Universities/Institutions duly recognized by AICTE/UGC/Govt. Of India/State Government with computer as one of the subject prior to the last date of submission of the application be offered appointment/permitted to join. The candidates who have possessed certificates issued by private institutes registered under Society Registration 1860 Act may not be offered appointment and they shall be treated to be disqualified. Further, vide minutes dated 18.01.2016 committee resolved that a comprehensive report, candidate wise from the Sub-Ordinate Courts be obtained. The candidates who have obtained computer qualification from the institutes established under Companies Act 1956, shall be also treated to be disqualified.” 10. Further, vide minutes dated 18.01.2016 committee resolved that a comprehensive report, candidate wise from the Sub-Ordinate Courts be obtained. The candidates who have obtained computer qualification from the institutes established under Companies Act 1956, shall be also treated to be disqualified.” 10. The resolution, inter alia, prohibited to honour the computer qualification obtained by the candidates from the institutes established under the Companies Act, 1956 and private institutes registered under the Societies Registration Act, therefore, all candidates having certificates/diploma from these institutes were treated disqualified. 11. It is not in dispute that the certificate relied upon by the petitioner is a one year diploma in Computer Application and Information Technology (Under Kaushal Vridhi Yojna) conferred by UPICO (IT Education & Training Division) under the sponsored programme of Social Welfare Department of Government of Uttar Pradesh. It is not disputed by learned counsel for the petitioner that UPICO was incorporated under the Companies Act, 1956 on 30 March 1974. As per Memorandum of Association, the main object of the company, inter alia, includes : “(i) To carry out or have carried out through suitable agencies market surveys of different areas of different products, commodities and studies of industries, trades, professions and calling to identify investment opportunities, consumption Patterns and opportunities for entrepreneurs for self employment. (ii) To undertake any type of research and service in order to promote the objectives of the company for evaluating or dealing with marketing or investments and to undertake and carry on techno-economic or other studies or surveys in connection with the development of industry.” xxx xxx xxx xxx xxx 32. To appoint or employ temporarily or permanently or obtain on deputation any person or persons who may be required for purpose of the Company and to pay for their services, salaries wages, gratuities, provident fund and other contributions.” 12. The share holding of the Company, as reflected from the material placed on record, includes Financial & Banking Companies viz. The Pradeshiya Industrial Corporation of U.P. Ltd. (PICUP), The U.P. Small Industries Corporation Ltd. (UPSIC), Bank of Baroda, Allahabad Bank, Small Industrial Development Bank of India (SIDBI), IFCI Ltd. Central Bank of India, Bank of India, Pubjab National Bank, Canara Bank, Union Bank of India, Syndicate Bank, UCO Bank, Indian Overseas Bank, State Bank of India, ICICI Bank Ltd.. Government of Uttar Pradesh, Director of Industries, Govt. Government of Uttar Pradesh, Director of Industries, Govt. of UP, Kanpur is holding 0.01% shares; whereas, 48.99% share holding is with SIDBI. The Government of Uttar Pradesh does not hold majority shares in UPICO. 13. Learned counsel for the applicant has relied upon the preface of the course book published for Kaushal Vriddhi Yojana for Uttar Pradesh contending that training is conducted by UPICO, a leading Government Consultancy Company in training and education to create IT literate and IT aware society. For providing IT manpower tool, so as to work towards development and reduction of unemployment in the country. The mission of UPICO is to spread the knowledge for empowerment, growth and progress in areas of Technology, Professional Skills and SelfEmployment. 14. Prescription of qualifications and other conditions of service pertains to the field of policy and is within the exclusive discretion and jurisdiction of the State/Employer. It is not open to the Courts to direct the Government to have a particular method of recruitment or eligibility criteria. The observation of the Supreme Court in P.U. Joshi and Others vs. Accountant General, Ahmedabad and others, (2003) 2 SCC 632 read thus: “10. ... Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate.” (Refer: V.K. Sood vs. Secretary, Civil Aviation, (1993) AIR SC 2285) 15. In Chandigarh Administration vs. Usha Kheterpal Waie and others, (2011) 9 SCC 645 Supreme Court, in paragraph 22, observed thus: “22. In Chandigarh Administration vs. Usha Kheterpal Waie and others, (2011) 9 SCC 645 Supreme Court, in paragraph 22, observed thus: “22. It is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. [See J. Rangaswamy vs. Govt. of A.P., (1990) 1 SCC 288 and P.U. Joshi vs. Accountant General, (2003) 2 SCC 632]. In the absence of any rules, under Article 309 or statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of Ph.D. is unreasonable.” 16. In Jyoti K.K. and others vs. Kerala Public Service Commission and others, (2010) 15 SCC 596 the Supreme Court held that the higher qualification must clearly indicate or 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. However, in the facts of the instance case, a qualification conferred by a body which is neither authorized nor recognized either or by an established procedure and norms cannot be considered or be an acceptable qualification. It would be wholly unfair to place the holder of a recognized qualification on the same pedestal as one who does possess one. This Court in Prashant Kumar Jaiswal and others vs. State of U.P. and others, (2018) 2 ADJ 633 in a similar challenge to treat computer eligibility certificate obtained from unrecognized institutions was negated. “This Court is of the considered view that a recognized qualification must be recognized 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. “This Court is of the considered view that a recognized qualification must be recognized 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 organization irrespective of whether it is recognized 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.” 17. In appointment to public service, the object of process of selection is to secure the best and the most suitable person to be tested impartially and objectively. The Court has no role in determining the methodology of recruitment or laying down the criteria/qualification of selection. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer in public service is contrary to any constitutional or statutory provision or is patently arbitrary. The Constitution does not permit the Court to direct or advise executive in matters of policy. 18. In Lila Dhar v. State of Rajasthan and others, (1981) 4 SCC 159 Supreme Court held as follows: “4. The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services. The ideal in recruitment is to do away with unfairness. Open competitive examinations are a peculiarly democratic institution. Any qualified person may come forward. His relative competence for appointment is determined by a neutral, disinterested body on the basis of objective evidence supplied by the candidate himself. No one has “pull”; everyone stands on his own feet. The system is not only highly democratic, it is fair and equitable to every competitor. The same rules govern, the same procedures apply, the same yardstick is used to test competence.” 19. Supreme Court in Union of India vs. Pushpa Rani and others, (2008) 9 SCC 243 observed as follows: “37. The system is not only highly democratic, it is fair and equitable to every competitor. The same rules govern, the same procedures apply, the same yardstick is used to test competence.” 19. Supreme Court in Union of India vs. Pushpa Rani and others, (2008) 9 SCC 243 observed as follows: “37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.” 20. In Asif Hameed and others vs. State of Jammu and Kashmir and others, (1989) Supp2 SCC 364 Supreme Court, in paragraph 19, observed thus: “19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The Court sits in judgment on the action of a coordinate branch of the government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.” 21. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.” 21. The Courts do not possess the expertise to compare the equivalence of educational qualifications to make comparisons for eligibility for the posts in the statutory rules. 22. In State of Rajasthan & Ors. v. Lata Arun, (2002) AIR SC 2642 Supreme Court held as under:- “12. From the ratio of the decision 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.” 23. In Urmila devi v. State of U.P. & Anr., (2012) 90 AllLR 314 the Court held in para 13 as follows:- “13. The equivalence to the examinations can only be allowed by the State Government after consulting experts looking into various factors such as the teaching facilities, syllabus and the other such candidates. The Courts do not have any authority to do the job of experts and grant such equivalence.” [Ref: Amit Tiwari and 7 others vs. State of U.P. and another, (Special Appeal Defective No. 122 of 2015)] 24. I need not note various decisions on the points where the Courts have held that the matter pertaining to the equivalence being an area of expert opinion should be left to the experts and Courts should not indulge in voyagerism. Mere equivalence is not enough it must be recognized as such. No such expert opinion or decision has been placed before me to support the contention of the petitioner that the computer certificate course offered by UPICO is duly recognized and equivalent to CCC or equivalent to or higher degree in computer. (Ref: Deepesh Singh and 8 others vs. State of U.P. and 2 others (Writ A No. 9605 of 2018) ) 25. (Ref: Deepesh Singh and 8 others vs. State of U.P. and 2 others (Writ A No. 9605 of 2018) ) 25. Learned counsel for the petitioner has failed to show from the impugned circular as to how the resolution of the High Court in excluding the computer course imparted by the companies registered under the Companies Act or private institutes under the Societies Registration Act is patently arbitrary. More so, no material was brought on record to show that the computer course imparted by the Companies and Societies are duly recognized in accordance with the norms established for recognition of course in computers from the competent/authorized Universities/Institutes/Government. 26. In view of above, writ petition is dismissed.