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2023 DIGILAW 306 (ALL)

State of U. P. v. Khushaboo Kumari Gupta

2023-01-31

J.J.MUNIR, RAJESH BINDAL

body2023
ORDER : 1. This order will dispose of bunch of appeals bearing Special Appeal Nos.1206 of 2019, 98 and 154 of 2020 and 595 of 2022 as the common legal issues are involved. FACTS OF THE CASE Special Appeal No. 595 of 2022 2. The writ petitioner/respondent herein, who appeared in person, was a candidate for the post of Village Development Officer (hereinafter referred to as "VDO"). The writ petition was filed by her as her candidature was rejected, after the recommendation made by the Uttar Pradesh Subordinate Selection Commission, on the ground that she does not have CCC Certificate from DOEACC/NIELIT. The writ petition was allowed by the learned Single Judge. 3. To put the record straight, it needs to be mentioned that earlier the petitioner approached this Court by filing writ petition bearing Writ-A No.14181 of 2018 as she was not allowed to participate in the interview. The said writ petition was dismissed on June 27, 2018. However, in Special Appeal No.1165 of 2018 filed by her, she was allowed to participate in the interview and her result was directed to be placed before the Court. The aforesaid appeal was finally disposed of on April 29, 2019. When the mark-sheet of the writ petitioner was placed before the Court, learned counsel for the State submitted that on the basis of marks secured by the writ petitioner in interview, her position in merit list shall be examined and final result shall be communicated to her. Special Appeal No.1206 of 2019 4. The writ petitioners/respondent Nos.1 to 17 in the present case were Ex-Servicemen and were candidates to the post of VDO. The issue again was with reference to qualification of CCC Certificate. The stand of the State that the same was required only from DOEACC/NIELIT was not accepted and the direction was issued by the learned Single Judge that the candidature of the writ petitioners will not be ignored only on the ground that their CCC Certificates are not issued from DOEACC/NIELIT. Special Appeal Nos. 98 and 154 of 2020 5. The writ petitions, on identical facts, were disposed of by the learned Single Judge in the same terms as its earlier judgment in Writ Petition No.1782 of 2019 titled as Pramod Kumar and others v. State of U.P. and others against which Special Appeal No.1206 of 2019 is pending. ISSUE INVOLVED IN THE CASE 6. The writ petitions, on identical facts, were disposed of by the learned Single Judge in the same terms as its earlier judgment in Writ Petition No.1782 of 2019 titled as Pramod Kumar and others v. State of U.P. and others against which Special Appeal No.1206 of 2019 is pending. ISSUE INVOLVED IN THE CASE 6. The controversy in the writ petitions revolves around the qualification required for the post of VDO. It is again limited to CCC Certificate. Firstly, as to whether that qualification is required and secondly as to whether it is required only from DOEACC/NIELIT or some other Institute as well. The learned Single Judge held in favour of the writ petitioners. The State is in appeal. 7. At the time of hearing, when this Court had asked a specific question to the learned counsel for the State as to whether there is any other writ petition/appeal pending in this Court raising the same legal issues, the answer was in negative. SUBMISSIONS 8. Argument raised by the learned counsel for the State is that the advertisement for the post of VDO was issued vide Advertisement No.3 (Exam)/2016. The same clearly provided the qualifications required for the post, which included CCC Certificate in computer operation. It was provided for in terms of the Government Order issued by the Government on March 27, 2012. As it was approved by the Governor, hence the qualification is required for the post. The aforesaid Government Order was followed by the another Government Order dated July 23, 2013, wherein it was specifically provided that CCC Certificate has to be from the DOAECC. The argument is that none of the respondents in the appeals possesses the said certificate from DOAECC/NIELIT. Hence, they were not eligible and have been wrongly directed to be appointed by learned Single Judge. In support of the argument, reliance was placed upon the judgment of the Hon'ble Supreme Court in Mukul Kumar Tyagi v. State of Uttar Pradesh and others, (2020)4 SCC 86 . 9. In response, learned counsel appearing for the respondents and also the respondent, who appeared in person, submitted that the post in question is governed by the Uttar Pradesh Rural Development (Gram Sewak) Service Rules 1980 (hereinafter referred to as the "Rules"). For the post in question, CCC Certificate is not the requisite qualification. Hence, it could not have been added in the advertisement. For the post in question, CCC Certificate is not the requisite qualification. Hence, it could not have been added in the advertisement. Still, what is sought in the advertisement is merely a certificate and not the Institute from where it should be. In fact, no Institute as such can be specified. The required certificate should be from recognized Institute. It was further submitted that by communication issued by the Secretary, Government of U.P., the statutory Rules cannot be amended. Rules framed under Article 309 of the Constitution of India cannot be changed only by writing letters. Proper procedure has to be followed. What is evident from letter dated March 27, 2012 issue by Principal Secretary, Government of U.P. is that the Governor has granted permission for addition of CCC Certificate as a qualification for the post of VDO. Thereafter, due process was to be followed for amendment of Rules. Nothing was done, as the Officers in the State do not follow the law or they are law into themselves. Another communication was sent by Special Secretary, Government of U.P. dated July 23, 2103 whereby sanction was granted for recruitment to the vacant post. In this letter, it was mentioned that CCC Certificate has to be from DOEACC. 10. The submission is that the qualification having not been prescribed in the Rules, the same could not be a ground to reject the candidature of the respondents. Anything stated in the advertisement, which is contrary to the Rules, has to be ignored, as the legal position is otherwise that the qualification prescribed in the Rules will be applicable, even if advertisement is different. It was submitted that in the advertisement what is required is only CCC Certificate and no other condition. However, the candidature is sought to be rejected on the ground that CCC Certificate from DOEACC/NIELIT only is required. It was mentioned in inter-departmental communication. Though the letter dated July 23, 2013 is sought to be relied upon for the purpose, still in the advertisement issued nothing was mentioned. The candidate is not supposed to know what is mentioned in the inter-departmental communication. He can be knowing only the Rules which are notified and not otherwise. 11. It was mentioned in inter-departmental communication. Though the letter dated July 23, 2013 is sought to be relied upon for the purpose, still in the advertisement issued nothing was mentioned. The candidate is not supposed to know what is mentioned in the inter-departmental communication. He can be knowing only the Rules which are notified and not otherwise. 11. It was submitted that in Ex-Servicemen (Re-employment in Central, Civil Services and Post) Rules, 1979, amendment was carried out on February 12, 1986, wherein it was provided that if sufficient number of candidates holding the requisite qualifications are not available, the qualification can be relaxed subject to the condition that such relaxation will not affect the level of performance. 12. In the case in hand, the respondents are having the qualification equivalent to CCC Certificate and in no way their performance can be compromised. 13. In response, it was submitted by learned counsel for the State that when the pay-scales were revised by VIth Pay Commission, it was recommended by the Commission that the qualification of CCC Certificate is required to be added. It was for the reason that the entire country was going in digital mode. Hence, for government employees' knowledge of computer was required. No question could be raised by the candidates, as it is for improving efficiency in discharging of their duties to serve the public. DISCUSSION 14. Heard learned counsel for the parties and perused the paper book. 15. The undisputed fact on record is that an advertisement for recruitment to the post of VDO was issued providing for the following qualifications : ^^vfuok;Z vgZrk & 1- foKku ;k d`f”k ds lkFk ek/;fed f’k{kk ifj”kn] mŒ izŒ dh baVjehfM,V ijh{kk ;k jkT;iky }kjk mlds led{k ekU;rk izkIr dksbZ ijh{kk mRrh.kZ dh gksA 2- dEI;wVj lapkkyu esa ^^lhŒ lhŒ lhŒ izek.k^^ i= dh vgZrkA^^ 16. The post in question is governed by the Rules where the qualification for the post provided for is as under: "Academic qualification-A candidate for direct recruitment to the service must have passed the Intermediate examination with Science, or Agriculture, from the U.P. Board of High School and Intermediate Education or an examination recognised by the Governor as equivalent thereto." 17. The post in question is governed by the Rules where the qualification for the post provided for is as under: "Academic qualification-A candidate for direct recruitment to the service must have passed the Intermediate examination with Science, or Agriculture, from the U.P. Board of High School and Intermediate Education or an examination recognised by the Governor as equivalent thereto." 17. The origin of qualification of CCC Certificate for the post in question is a communication dated March 27, 2012 issued by Principal Secretary, Government of Uttrar Pradesh to Commissioner, Village Development, Uttar Pradesh, Lucknow, which mentions that Governor has granted approval for addition of CCC Certificate along with existing qualifications for the post of VDO. The relevant para thereof reads as under: ^^mi;ZDr fo”k; ds lEca/k esa eq>s ;g dgus dk funsZ’k gqvk gS fd foRr foHkkx ds ‘kklukns’k la[;k& osŒ vkjŒ&2&1987@nl&54¼,e½@2008 VhŒlhŒ fnukad 22 uoEcj] 2011 }kjk fy;s x;s fu.kZ; ds dze esa xzke fodkl foHkkx ds xzke fodkl vf/kdkjh ds inksa ij orZeku esa fu/kkZfjr ‘kSf{kd vgZrk ds lkFk dEI;wVj lapkyu esa ^lhŒ lhŒ lhŒ^ izek.k i= dh vgZrk dks lfEefyr fd;s tkus dh Jh jkT;iky ls egksn; lg”kZ Lohd`fr iznku djrs gSaA^^ 18. Vide subsequent letter dated July 23, 2013 when the vacant posts were sanctioned for recruitment, it was mentioned that CCC Certificate was required from DOEACC/NIELIT. 19. It is in view of the aforesaid two letters, which the State claims to be Government Orders, that the candidature of the respondents is sought to be rejected on the ground that they do not possess CCC Certificate from DOEACC/NIELIT. It was not disputed that all of them have CCC Certificate issued by different Institutes from where they passed the same after getting the training. The fact remains that in the Rules or even in the advertisement issued, there is no mention of qualification of CCC Certificate from any specified Institute i.e. DOEACC/NIELIT. A candidate is supposed to know the relevant Rules under which the recruitment is sought to be made and has to be qualified in terms thereof. Inter-departmental communications, which are not referred to in the advertisement, are not supposed to be in the knowledge of a candidate. 20. A candidate is supposed to know the relevant Rules under which the recruitment is sought to be made and has to be qualified in terms thereof. Inter-departmental communications, which are not referred to in the advertisement, are not supposed to be in the knowledge of a candidate. 20. The learned Single Judge allowed the writ petition bearing Writ-A No.13847 of 2021 on the ground that in earlier round of litigation the State-respondents themselves had given clear statement that CCC Certificate was not essential qualification which was clear from the Rules and also nothing that was placed on record contrary to that. While writ petitions bearing Nos.1782, 5076 and 5140 of 2019 were allowed by the learned Single Judge holding that the candidature of the writ petitioners cannot be ignored on the ground that they do not possess CCC Certificate from DOEACC/NIELIT as the Rules and the advertisement do not prescribe so. 21. We find merit in the contention raised by the learned counsel for the State that on account of large scale computerisation in Government functioning, qualification of computer knowledge is must at all levels in the State and in case such a qualification was prescribed and all the candidates knowing fully had participated in the process of selection, no issue can be permitted to be raised. Though it was claimed that the VIth Pay Commission suggested this qualification to be added, however, without mentioning in the advertisement, the Institute from where that certificate has to be, on this ground the candidature of a candidate could not be rejected. CCC Certificate as such may be required, however, condition that it should be from DOEACC/NIELIT cannot stand to judicial scrutiny. 22. So far as the judgement of Hon'ble Supreme Court in Mukul Kumar Tyagi's case (supra) is concerned, the same will not come to rescue of the State for the reason that the fact as pleaded before Hon'ble the Supreme Court was that there is no other Institute except DOEACC/NIELIT which issues CCC Certificate. In the case in hand, the respondents have produced certificates from different Institutes and the qualification as such has not been denied by the learned counsel for the State. 23. In the case in hand, the respondents have produced certificates from different Institutes and the qualification as such has not been denied by the learned counsel for the State. 23. While concurring with the view expressed by learned Single Judge in Writ-A No.1782 of 2019 and in Writ-A No.13847 of 2021, the present appeals are disposed of and the writ petitioners are held entitled to the relief, as granted by learned Single Judge. 24. As the issues under consideration pertain to an advertisement issued way back in the year 2016 for which the selection process was concluded in the year 2019, any other writ petition filed claiming the same relief will be considered on its own merits including the principle of delay and laches.