Ashish Kumar vs The State of Uttar Pradesh & Ors.

These two appeals have been filed against the judgment of High Court of judicature at Allahabad (Lucknow Bench), Lucknow, dated",,,,,,,,,

04.10.2010 dismissing the Special Appeal No.446 of 2006 of the appellant as well as judgment dated 20.12.2012 dismissing the review,,,,,,,,,

application filed by the appellant. Parties shall be referred to as referred in the appeal.,,,,,,,,,

Brief facts of the case giving rise to these appeals are:,,,,,,,,,

The appellant belongs to other backward caste who has passed graduation (B.A.) with Psychology and has also done post-graduation in,,,,,,,,,

Psychology from Kanpur University. Appellant has also obtained master degree in Human Resource Management and Industrial Relations from,,,,,,,,,

Lucknow University in the year 1997. An advertisement dated 30.08.2001 was issued by the Director, Social Welfare Department, U.P.,",,,,,,,,,

advertising various posts under Director, Social Welfare Department and other department of State. Advertisement also contained recruitment for",,,,,,,,,

post of Psychologist (03 posts). The appellant submitted the application for the post of `Psychologist''. The appellant was issued admit card for,,,,,,,,,

appearing in the written examination. The appellant appeared in the written examination and was declared successful and included in the merit list.,,,,,,,,,

A letter dated 02.05.2003 was issued to the appellant asking the appellant to appear along with original certificates for verification of documents.,,,,,,,,,

The appellant appeared along with all the documents on 12.05.2003. When appellant appeared on 12th May, he was informed that he is not",,,,,,,,,

eligible and his appointment for the post of `Psychologist'' cannot be made. The appellant submitted a representation on 02.06.2003 to the,,,,,,,,,

respondent. The appellant having not been given appointment; hence, he filed a writ petition praying for the following relief:",,,,,,,,,

PRAYER",,,,,,,,,

(I) issue a writ order or direction including a writ in the nature of mandamus commanding the opposite parties to appoint the petitioner on,,,,,,,,,

the post of Psychologist for which the petitioner is fully eligible and qualified as per advertisement published for direct recruitment in,,,,,,,,,

SAMOOH ''GA''.,,,,,,,,,

(II) Issue a writ order or direction including a writ in the nature of mandamus commanding the opposite not to appoint any other candidature,,,,,,,,,

on the post of Psychologist for which the petitioner is fully eligible.,,,,,,,,,

(III)Issue a writ order or direction including a writ in the nature of mandamus commanding the opposite parties not to harass and victimize,,,,,,,,,

the petitioner in any manner whatsoever.,,,,,,,,,

(IV) Issue such other order/orders as may deem just and proper by this Hon''ble Court in the Circumstances of the case.,,,,,,,,,

(V) Award the cost of petition in favour of the petitioner.""",,,,,,,,,

In the writ petition, learned single Judge directed for filing a counter affidavit and also bringing on record the copy of the Order passed on the",,,,,,,,,

representation of the appellant dated 02.06.2003. The appellant also filed a Contempt Application No.182 of 2004 in which Director, Social",,,,,,,,,

Welfare was directed to appear in person. An Order dated 19.04.2004 was passed by the respondent rejecting the representation of the,,,,,,,,,

appellant. The appellant prayed for amendment of the writ petition, praying for quashing the order dated 19.04.2004 which prayer was allowed to",,,,,,,,,

be added. Learned single Judge by its judgment dated 18.05.2006 dismissed the writ petition. Learned single Judge accepted the case taken up by,,,,,,,,,

the respondent in the counter affidavit that appellant is not qualified for the post since he does not have training qualification i.e. L.T./B.T.B.Ed. The,,,,,,,,,

appellant filed special appeal which too was dismissed. Review application filed thereafter was also rejected.,,,,,,,,,

We heard Shri Mukesh K. Giri, learned counsel for the appellant and Shri Ajay Kumar Mishra, Additional Advocate General, appearing for the",,,,,,,,,

State of U.P.,,,,,,,,,

Learned counsel for the appellant submits that the appellant being graduate and postgraduate in `Psychology'' was fully eligible for the post of,,,,,,,,,

`Psychologist''. It is submitted that the advertisement has been wrongly read by the High Court. Graduate in Psychology was qualified for the post,,,,,,,,,

and advertisement does not prescribe qualification as graduate with Psychology and L.T./B.T. B.Ed. He further submits that although the post of,,,,,,,,,

Psychologist in the Social Welfare Department was declared as dead cadre by the Government Order dated 09.05.2008 but said posts were,,,,,,,,,

again revised by the subsequent Government Order dated 17.08.2010. He submits that post of Psychologist is not a teaching post; hence, it was",,,,,,,,,

not necessary to have training qualification. Learned counsel has also relied on the rules namely Janjatiya Vikas Shikshan Aur Kermchariverg Sewa,,,,,,,,,

Niyamawali, 1991, according to which, he submits that for Psychologist, training qualification is not essential qualification and as per rule minimum",,,,,,,,,

qualification is M.A. in Psychology. B.Ed. is only preferable qualification. He submits that the essential work of the Psychologist was to provide,,,,,,,,,

educational counseling to the students and other duties and was not essentially a teaching post. He submits that the advertisement mentioned, in",,,,,,,,,

subject of Psychology Graduate or L.T./B.T. B.Ed.,,,,,,,,,

Shri Ajay Kumar Mishra, Additional Advocate General, refuting the submissions of learned counsel for the appellant contends that respondents",,,,,,,,,

have rightly held the appellant not qualified. He submits that according to advertisement essential qualification is graduate in Psychology with,,,,,,,,,

L.T./B.T.B.Ed. He submits that Janjatiya Vikas Shikshan Aur Kermchariverg Sewa Niyamawali, 1991, hereinafter referred to as 1991 Rules",,,,,,,,,

governed the fields. It is, however, submitted that although appellant was called to appear in written examination and interview but on discovering",,,,,,,,,

that he is not eligible as per the requirement of the recruitment rule, the respondent corrected the mistake on their part by not going any further with",,,,,,,,,

the appointment of the appellant by rejecting his candidature.,,,,,,,,,

We have considered the submissions of the learned counsel for the parties and perused the record.,,,,,,,,,

The parties are at variance with regard to correct import of the advertisement. The appellant''s case was that as per the advertisement the,,,,,,,,,

graduation in Psychology was the minimum qualification and qualification of L.T./B.T. B.Ed. were independent qualification on fulfilling of which,,,,,,,,,

candidate was qualified. Advertisement does not require graduate with Psychology with L.T./B.T. B.Ed. to make candidate eligible. Whereas the,,,,,,,,,

1.,Psychologist-03,18-35 years,4500-7000,"Graduation in Psychology/L.T./B.T.B.Ed in the subject of Psychology.

Preferential Qualification:

Diploma in guidance psychology from Bureau of Psychology, Allahabad or

Government of India or from other recognized institutions,

Working experience in Hindi",,,,,

5.,Grah Mother - 02,18-35 years,3200-4900,"Intermediate examination passed along with Home Science. Essential

Qualification: two years practical experience of Grah Mother in any

Institute/ Committee",,,,,

6.,"Karamshalal Prashikshak Foundary

Shop / Black Smith Shop - 02",-do-,4500-7250,"Intermediate examination passed from U.P. Madhyamik Education

Council or a Institution recognized by the Government equivalent thereto.

Certificate of G.S.T.S. for three years from the concerned branch or

Certificate of G.I.T.I./ I.T.I. from concerned branch or Diploma of

Polytechnic. Essential Qualification: Three Years Industrial experience

after the Certificate.",,,,,

11.,"Sewing Trainer (National Baggers

Home) - 01",-do-,3050-4590,"Passed Intermediate or equivalent thereto and I.T.I. in concerned Trade/

Apprentice Certificate or Diploma.",,,,,

16.,Music Teacher- 03,-do-,4000-6000,"Intermediate passed from Music College or a Certificate/ Diploma

recognized by the Government.",,,,,

17.,Stitching Trainer-01,-do-,-do-,"Intermediate passed or equivalent thereto and ITI in concerned Trade,

Apprentice/ Certificate or Diploma.

Examination Fees :General Category 60/- Other Backward Class 40/-,

Schedule Caste/Schedule Tribe 25/-",,,,,

,,,,,,,,,

10.,Psycho logist,4,4,8,"Through the

commission

directly","M.A. in Psychology

prefer ably B.Ed or

diploma from any

recognized institution

in teaching subject",21,32,"515-15-590-18-

626-EB-18-68-20-

780-Eb-20-860

(Before

registration)