Research › Search › Judgment

J&K High Court · body

2021 DIGILAW 596 (JK)

Aijaz Ahmad Ahanger v. UT of J&K

2021-11-16

ALI MOHAMMAD MAGREY, SANJAY DHAR

body2021
JUDGMENT : Sanjay Dhar, J. 1. Petitioners have challenged judgment dated 25th October, 2021, passed by Central Administrative Tribunal, Jammu Bench, whereby petition bearing TA No.62/7196/2020 filed by the petitioners challenging the selection list pertaining to selection of private respondents as against the posts of Radiographic Technician, Clinical Staff for Casualty Bed, Technical Assistant/Technician (Anaesthesia) and Theatre Assistant/Technician in Government Medical College, Anantnag and Government Medical College, Baramulla, has been dismissed. 2. The facts giving rise to the filing of this writ petition are that respondent Service Selection Board issued two advertisement notices bearing No. 01/2019/001 to 01/2019/041 dated 01.02.2019, whereby online applications were invited from eligible candidates for participation in the selection process for different posts for Government Medical College, Anantnag and Government Medical College, Baramulla. Petitioners No.1 to 7 applied for the post of Radiographic Technician available in the Department of Radiodiagnosis. Petitioners No.8 and 9 offered their candidature for the post of Clinical Staff for Casualty Bed available in the Department of Central Sterilization Services/ Department of Central Casualty Services. Petitioner No.10 applied for the post of Technician/Technical Assistant, Department of Anesthesiology while as petitioners No.11 to 13 applied for the post of Theatre Assistant/Technician available in the Department of OTO Rhino-Laryngology (ENT) General Surgery. Petitioners No.1 to 11 applied for the aforesaid posts in both the Medical Colleges whereas petitioners No.12 and 13 applied only for the posts available in Government Medical College, Anantnag. 3. A Computer Based Written Test was conducted by the respondent Service Selection Board in the month of May, 2019, result whereof was uploaded by the respondent Board in terms of notification No.SSB/Secy/Sel/2019/5160-66 dated 05.10.2019 and provisional shortlist of the candidates for document and biometric verification was issued. According to the petitioners, they figured in the aforesaid list by securing high merit in the aforesaid test. Petitioners are stated to have appeared before the Document Verification Committee and presented their documents, which according to them were found to be correct. 4. It is the case of petitioners that the prescribed qualification as per the advertisement notices was diploma in the relevant field, but they possess a higher qualification i.e., degree in the relevant field. Petitioners are stated to have appeared before the Document Verification Committee and presented their documents, which according to them were found to be correct. 4. It is the case of petitioners that the prescribed qualification as per the advertisement notices was diploma in the relevant field, but they possess a higher qualification i.e., degree in the relevant field. The respondent Board took up the matter relating to clarification with regard to eligibility of candidates having higher qualification in the relevant field with the Health and Medical Education Department in terms of its communication No. SSB/Sel/Secy/2019/6086 dated 17.12.2019. The Health and Medical Education Department in turn took up the matter with respondent No. 4 i.e., Jammu and Kashmir Para-Medical Council in terms of its communication dated 01.01.2020 and in response to the said communication, the respondent No. 4 issued clarification vide communication dated 06.01.2020, holding that the degree in the relevant discipline can be considered for the post for which prescribed qualification is diploma because a degree is a higher qualification in the relevant discipline. The clarification of respondent No. 4 was communicated by Health and Medical Education Department to the respondent Board vide its communication dated 10.01.2021. However, the respondent Board without taking into consideration this clarification issued impugned selection list dated 25.02.2020 ignoring the candidature of petitioners by holding them ineligible. 5. The aforesaid selection list came to be challenged by petitioners by way of writ petition bearing WP (C) 604/2020. The said writ petition came to be transferred to Central Administrative Tribunal, Jammu Bench. After hearing the parties, the Tribunal in terms of the impugned judgment came to the conclusion that the action of respondent Service Selection Board in not accepting the candidature of the petitioners on the ground that they did not possess requisite prescribed qualification as per the advertisement notice cannot be faulted and, accordingly, the petition was dismissed. It is this judgment of the Tribunal which is under challenge before us. 6. We have heard learned counsel for the parties and perused the record. 7. The short point involved in this writ petition is that as to whether it is within the ambit of powers of a Court to expand the scope of qualification prescribed in an advertisement notice by reading into the same the higher qualification as well. 8. 6. We have heard learned counsel for the parties and perused the record. 7. The short point involved in this writ petition is that as to whether it is within the ambit of powers of a Court to expand the scope of qualification prescribed in an advertisement notice by reading into the same the higher qualification as well. 8. Before dilating on the aforesaid question, it would be necessary to refer to relevant portion of the advertisement notice(s) prescribing the requisite qualifications in respect of the posts which are subject matter of this writ petition. S. No. Name of the post Prescribed Qualification 1. Radiographic Technician 10+2 with Science or above qualification with two years Diploma in X-Ray Technician/Radiography from any recognized Institute/SMF. 2. Clinical Staff for casualty bed 10+2 with Science or above qualification with Diploma in Medical Lab. Technology from any recognized Institute. 3. Technical Assistant/Technician 10+2 with Science or above qualification with Diploma in Anaesthesia Assistant Course from any recognized Institute/SMF. 4. Theatre Assistant/Technician 10+2 with Science or above qualification with Diploma in Theatre Assistant/Technician Course from any recognized Institute/SMF. 9. What comes to the fore from the afore-quoted extracts of the advertisement notices, which are subject matter of the present writ petition, is that the prescribed qualification for each post is 10+2 with Science or above with Diploma in the relevant field. The case of petitioners is that besides possessing the requisite academic qualification, they also hold a degree in the relevant field. According to them Degree being a higher qualification than Diploma, it is to be presumed that a degree course encompasses within it a diploma course. Thus, according to petitioners they are eligible for the advertised posts and their candidature could not have been rejected by the respondent Board. 10. The legal position as regards the question as to whether it is open to the Court to widen the scope of eligibility conditions prescribed in an advertisement notice, is more or less settled by various pronouncements of this Court as well as of the Supreme Court. 11. In P M Latha vs. State of Kerala, (2003) 3 SCC 541 , the Supreme Court, while dealing with the issue whether B.Ed. 11. In P M Latha vs. State of Kerala, (2003) 3 SCC 541 , the Supreme Court, while dealing with the issue whether B.Ed. qualification which is a higher qualification than the Trained Teachers Certificate should be recognized as an eligible qualification for the post of primary school teacher, observed as under: “We find absolutely no force in the argument advanced by the respondents that B.Ed. qualification is a higher qualification than TTC and therefore, the B.Ed. candidates should be held to be eligible to compete for the post. On behalf of appellants, it is pointed out before us that Trained Teachers Certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed. degree, the training imparted is to teach students of classes above primary. B.Ed. degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed. qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for post of primary teachers as only TTC and not B.Ed. Whether B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates, for the present vacancies advertised, as eligible.” 12. The Supreme Court in the case of Zahoor Ahmed Rather and others v. Sheikh Imtiyaz Ahmed, (2019) 2 SCC 404 , observed that the reasoning that a candidate who holds diploma must be pre-supposed to hold a lower qualification of an ITI, cannot be adopted in the absence of such a rule. The Court while discussing its earlier judgment in the case of Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596, made the following observations: 26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti KK in the subsequent decision in Anita (supra). The decision in Jyoti KK turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily pre-supposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The decision in Jyoti KK turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily pre-supposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The state as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the state, as the recruiting authority, to determine. The decision in Jyoti KK turned on a specific statutory rule under which the holding of a higher qualification could pre-suppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench of the High Court was justified in reversing the judgment of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision of the Division Bench. 27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The state is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision making. The state as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti KK must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti KK must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti KK turned. 28. Ms Wadia sought to draw sustenance from the fact that the holder of an ITI certification can obtain lateral entry to the diploma course. The point of the matter, however, is that none of the appellants fit the description of candidates who had secured an ITI certification before seeking a lateral entry to a diploma course. Plainly, when an ITI with matric is required, a person who does not hold that qualification is not eligible. 29. The submission based on Note 12, urged by Ms Wadia, cannot be accepted. The stipulation that the qualification prescribed is the bare minimum requirement of the job emphasises that it is an essential requirement, a threshold which cannot be dispensed with. Under Note 12, the Board is entitled to assign additional weightage for a higher qualification. Whether such a weightage should be assigned is a matter for the Board to determine. The SSSB did not assign an additional weightage for a higher qualification. In not exercising an enabling power, no fault can be found with the SSSB. An enabling provision postulates a discretion which may or may not be exercised. A candidate has no vested right to assert that the Board must as a mandate assign an additional weightage to a higher qualification. Whether to do so or not is a matter for the Board to determine. All that Note 12 postulates is that the mere possession of the prescribed qualification will not entitle a candidate to be called for the written test or interview. The Board may shortlist among eligible candidates by granting a weightage to a higher qualification in the relevant line or discipline. But the words “as may be decided by the Board” in Note 12 indicate that the Board is vested with a discretion in pursuance of an enabling power which it may or may not exercise. 13. The Board may shortlist among eligible candidates by granting a weightage to a higher qualification in the relevant line or discipline. But the words “as may be decided by the Board” in Note 12 indicate that the Board is vested with a discretion in pursuance of an enabling power which it may or may not exercise. 13. A Division Bench of this Court, of which one of us (Magrey ‘J’) was a member, in the case of J&K Service Selection Board & anr. V. Basit Aslam Wani & Ors. (LPASW No.194/2018 c/w LPASW No.161/2017 decided on 13.10.2020), after noting the ratio laid down by the Supreme Court in the aforesaid case, held that merely because a candidate possesses a degree of B. Pharmacy does not mean that he is eligible for a post where prescribed qualification is diploma in Pharmacy. Para 15 of the said judgment is relevant to the context and the same is reproduced as under: “15. Thus, as seen from the above judgment of the Supreme Court, the law is settled that prescription of qualification for a post is a matter of recruitment policy, and that the State as employer is entitled to prescribe qualifications as a condition of eligibility after taking into consideration nature of job, aptitudes required for efficient discharge of duties, functionality of qualifications, course content leading up to acquisition of qualification etc. Further, that judicial review cannot expand upon the ambit of prescribed qualifications to decide equivalence thereof. In absence of specific statutory rule under which holding of higher qualification could presuppose acquisition of lower qualification, such inference cannot be drawn. It is also settled that the Note of the advertisement notice, postulating that mere possession of prescribed qualification would not entitle a candidate to be called for written test or interview and the Board may shortlist among eligible candidates by granting weightage to higher qualification as may be decided by it, merely indicates that Board is vested with discretion in pursuance of enabling power which it may or may not exercise, and that a candidate has no vested right to assert that Board must as a mandate assign additional weightage to higher qualification.” 14. In Chief Manager, Punjab National Bank and Anr. In Chief Manager, Punjab National Bank and Anr. v. Anit Kumar Das, 2020 SCC Online SC 897, the Supreme Court, while noting its earlier judgments on the subject, observed that it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. Para 21 of the judgment is relevant to the context and the same is reproduced as under: “21. Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts. In the present case, prescribing the eligibility criteria/educational qualification that a graduate candidate shall not be eligible and the candidate must have passed 12th standard is justified and as observed hereinabove, it is a conscious decision taken by the Bank which is in force since 2008. Therefore, the High Court has clearly erred in directing the appellant Bank to allow the respondent-original writ petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement.” 15. In the face of the ratio laid down by the Supreme Court and this Court in the judgments referred to hereinbefore, it is clear that it is for the employer to determine the relevancy and suitability of the qualification for the post keeping in view the interest of the institution and the Courts are not equipped to assess the expediency and the advisability of prescription of these qualifications. Thus, the Court cannot expand the scope of qualification prescribed in the advertisement notice by reading into the same a higher qualification. 16. Thus, the Court cannot expand the scope of qualification prescribed in the advertisement notice by reading into the same a higher qualification. 16. It is vehemently urged by learned counsel for the petitioners that in the instant case, the Board sought clarification from the indenting department which in turn referred the matter to the J&K Para-Medical Council, the Expert Body, as regards the equivalence of degree vis-à-vis diploma in the relevant field and in response to the same, it was clearly communicated by the J&K Para-Medical Council that degree in the relevant field includes the diploma and, as such, the candidates holding degree in the relevant field are eligible to participate in the selection process. According to the learned counsel, once such clarification came from the Expert Body, it was not open to the respondent Service Selection Board to reject the candidature of the petitioners. 17. It is true that the respondent Service Selection Board did seek clarification from the indenting department which in turn referred the matter to the J&K Para-Medical Council and it is also a fact that the respondent No.4-J&K Para-Medical Council rendered its opinion favourable to the petitioner but in the absence of any ambiguity in the prescribed qualification, there was hardly any need for the respondent Board to undertake such an exercise. While in the advertisement notice, the indenting department had given scope for entertaining applications of the candidates having higher academic qualification by using the word “10+2 or above” but a similar expression has not been used in the advertisement notice while prescribing the professional qualification. The advertisement notices clearly provide that the prescribed qualification is Diploma in the relevant field. The expression “above” is missing over here leaving no scope for inclusion of higher professional qualification. The advertisement notices were issued on the basis of the requisition made by the indenting department i.e. Health and Medical Education Department and the prescribed qualification was governed by the Government Order issued in this regard as there were no recruitment rules framed for the advertised posts. Once there was absolute clarity in the qualification prescribed, there was no scope for the respondent Board to seek clarification or seek opinion about equivalence of the qualifications on its own. The exercise undertaken by the respondent Board in this regard was simply superfluous in the facts and circumstances of this case. Once there was absolute clarity in the qualification prescribed, there was no scope for the respondent Board to seek clarification or seek opinion about equivalence of the qualifications on its own. The exercise undertaken by the respondent Board in this regard was simply superfluous in the facts and circumstances of this case. The opinion rendered by respondent No.4- J&K Para-Medical Council, therefore, is of no help to the case of petitioners. 18. It has been next contended by learned counsel for the petitioners that in some of the Medical Colleges of the Union Territory of Jammu and Kashmir certain persons holding degrees in the relevant field have been engaged on contractual basis on similar posts, meaning thereby that petitioners who are holding degrees in the relevant field are eligible to hold the posts for which they have applied. According to the learned counsel, the fact that degree holders have been engaged on contractual basis on similar posts clarifies the position as regards the prescribed qualification. To support his argument, the learned counsel has relied upon the judgement of the Supreme Court in the case of Puneet Sharma v. Himachal Pradesh Electricity Board Ltd., AIR 2021 SC 2221 . It was a case where the Court held that a degree in Electrical Engineering/Electrical and Electronics Engineering is technically a higher qualification than a diploma in that discipline and, therefore, degree holders are eligible for appointment to the post of Junior Engineer Electrical. 19. A careful analysis of the facts in Puneet Sharma’s case (supra) reveals that though as per original rules, the prescribed qualification was diploma in the relevant discipline, yet a clarification was issued later on declaring that the candidates with higher qualification are also entitled to apply or be considered for appointment. Besides this, as per the rules relevant to the said case, 5% of sub-quota was earmarked for those who held degrees before joining as Junior Engineers. It was in these circumstances that the Supreme Court held that rule making authority had in mind that degree holders too could compete for the posts of Junior Engineers. In the instant case neither there is any specific rule which makes the degree holders eligible nor is there any clarification issued by the Government in this regard. Further there is no such material on record from which it can be inferred that degree holders are eligible for the advertised posts. In the instant case neither there is any specific rule which makes the degree holders eligible nor is there any clarification issued by the Government in this regard. Further there is no such material on record from which it can be inferred that degree holders are eligible for the advertised posts. Therefore, the ratio laid down by the Supreme Court in Puneet Sharma’s case (supra) does not apply to the facts of the instant case. 20. Learned counsel for the petitioners has laid much emphasis on Note 5 of the advertisement notice, which reads as under: “(5). The prescribed qualifications reflect the bare minimum requirement of the job and mere possession thereof shall not entitle a candidate to be called for different stages of selection process.” According to the learned counsel the afore-quoted Note clearly shows that the prescribed qualifications are minimum qualifications and any person having a higher qualification in the relevant field cannot be debarred from participating in the selection process. 21. The argument raised by learned counsel for the petitioners does not hold any merit for the reason that what the afore-quoted Note conveys is that holding of prescribed qualification does not entitle a candidate to be called for different stages of selection. It does not convey that a qualification which is higher than the prescribed qualification would ipso facto lead to acceptance of candidature of an applicant. The intention of Selection Board to incorporate the said Note is to convey to the applicants that there can be shortlisting of the candidates holding prescribed qualification on the basis of their merit in academic/professional qualification or on the basis of similar other factors. It does not convey anything more than this. 22. Apart from the above, the petitioners have not challenged the advertisement notice to the extent it prescribes the qualification for the posts for which the petitioners have applied. It is on the basis of the prescribed qualification only that petitioners have been held ineligible. Without challenging the advertisement notice to this extent, it is not open to the petitioners to challenge the selection itself. 23. For the foregoing reasons, we do not find any error or illegality in the impugned judgment passed by the Tribunal. The impugned judgment of the Tribunal is well reasoned and lucid. The same does not call for any interference. The writ petition lacks merit and the same is, accordingly, dismissed.