Uttarakhand Peyjal Sansadhan Evam Nirman Nigam & Others vs Tripti Thapliyal & Others

Ramesh Ranganathan, CJ

These appeals are preferred by the Uttarakhand Peyjal Sansadhan Evam Nirman Nigam and the Uttarakhand Subordinate Service Section Commission against the interlocutory order passed by the learned Single Judge in Writ Petition (S/S) No.1941 of 2019 dated 23.08.2019.

The respondent-writ petitioner filed Writ Petition (S/S) No.1941 of 2019 seeking a writ of mandamus directing the respondents to treat the petitioner as qualified for the post of Junior Engineer as she has a degree in Civil Engineering; and for a writ of certiorari to quash the condition in the advertisement whereby three year diploma in Civil Engineering alone was prescribed for appointment to the post of Junior Engineer.

In the interlocutory order under appeal dated 23.08.2019, the learned Single Judge noted that the writ petitioner was having a degree in B.Tech. (Civil Engineering) from a University in India established under the law, which was a higher qualification; on-line applications had been invited only from candidates, who were having three years diploma in Civil Engineering from a recognized institution or university established in India under law; applications, of B.Tech. degree holders, were not being entertained; and since B.Tech. was a higher qualification, and would include a diploma in Civil Engineering in the same category, the writ petitioner was entitled to be considered for appointment to the post of Junior Engineer.

As an interim measure, the learned Single Judge directed the Uttarakhand Subordinate Service Section Commission to open the portal for candidates who possess a degree, from Universities established in India under law, in B.Tech (Civil Engineering), and to apprise candidates, by mentioning in the portal that eligible candidates who were willing to submit online forms having degree in Civil Engineering, may also file their application forms; to extend the last date of the on-line application form; and to issue an amended notification/corrigendum in this regard so that all the aspirants, having a degree of B.Tech. (Civil Engineering), may also apply. The learned Single Judge made it clear that submission of online form, by the degree holder (Civil Engineering), shall be subject to the final outcome of Writ Petition (S/S) No.1941 of 2019.

The submission, urged on behalf of the appellants, is that, since the qualification prescribed in the advertisement is a three year diploma in Civil Engineering, it is only candidates, who have a three year diploma in Civil Engineering, who are eligible to be considered for appointment; and no candidate, who has a bachelor's degree in Civil Engineering from a University in India established under law, is entitled to apply since what has been specified in the advertisement is only a three year diploma in Civil Engineering; and the learned Single Judge was in error in directing the appellant-respondent to also consider candidates who have a bachelor's degree in Civil Engineering, though the advertisement does not permit such candidates to submit their applications for appointment to the posts of Junior Engineer.

Since reliance is placed on behalf of the respondent-writ petitioner on the judgment of the Supreme Court, in Jyoti K.K. & others vs. Kerala Public Service Commission & others: (2010) 15 SCC 596, and on behalf of the appellants on State of Punjab & others vs. Anita & others: (2015) 2 SCC 170 and Zahoor Ahmad Rather & others vs. Sheikh Imtiyaz Ahmad & others: (2019) 2 SCC 404, it is necessary to take note of the law declared therein.

In Jyoti K.K, the relevant Rule read as under:-

"Rule 10(a)(ii) read as follows:

Notwithstanding anything contained in these Rules or in the Special Rules, the qualifications recognised by executive orders or standing orders of Government as equivalent to a qualification specified for a post in the Special Rules and such of those higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post." (emphasis supplied)

It is in the context of this Rule, that the Supreme Court held that, if a person acquired higher qualifications in the same faculty, such qualifications can certainly be stated to pre-suppose the acquisition of a lower qualification prescribed for the post.

Subsequently, in Anita, the Supreme Court distinguished the judgment in Jyoti K.K. and held that, in the said judgment, Rule 10(a)(ii) of the Rules revealed the condition of a higher qualifications which presupposes the acquisition of the lower qualification prescribed for the post; and, since there were no similar statutory provisions authorizing appointment of persons with higher qualifications, reliance could not be placed on Jyoti K.K by those who had a higher qualification seeking appointment to the post contrary to the statutory Rules.

In Zahoor Ahmad Rather, the Supreme Court considered Rule 10(a)(ii), which fell for consideration in Jyoti K.K and, after referring to Anita, held that the decision in Jyoti K.K. 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, presupposes 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, was entitled to prescribe qualifications as a condition of eligibility; it was no part of the role, or function, of judicial review to expand upon the ambit of the prescribed qualifications; similarly, equivalence of a qualification was not a matter which can be determined in exercise of the power of judicial review; and whether a particular qualification should or should not be regarded as equivalent was a matter for the State, as the recruiting authority, to determine.

In the present case, the Regulations governing the field are the Uttarakhand Peyjal Sansadhan Vikas Evam Nirman Nigam Subordinate Engineering Service Regulations, 2011. Rule 11(1), thereunder, prescribes that the post of Junior Engineer (Civil) shall be recruited from such persons, who have the following minimum qualifications (a) three years Diploma in Civil Engineering from any recognized institution or university established by law in India.

The requirement of Rule 11(1)(a) is for a candidate to possess the minimum stipulated qualification which is a three years diploma in Civil Engineering. By use of the word 'minimum', it does appear, prima facie, that a higher education qualification is not excluded from consideration. As these are all matters for elaborate examination in the Writ Petition, after the appellants herein file their respective counter-affidavits, the learned Single Judge could not have issued such directions, in the order under appeal, which may travel even beyond the relief which can be granted when the Writ Petition is finally heard and decided.

Suffice it, in such circumstances, to set-aside the order under appeal; and, instead, direct the respondents, while permitting them to proceed with the selection process, not to issue any appointment order to any one of the selected candidates until further orders in the Writ Petition. It is also made clear that the selection process, if any undertaken by the appellant, shall be subject to further orders in the Writ Petition.

The appellants herein shall file their respective counter-affidavits within three weeks from today. It is open to the learned counsel, appearing for any of the parties, to request the learned Single Judge to take up the Writ Petition for admission/hearing any day after three weeks from today.

Both the Special Appeals are, accordingly, disposed of. No costs.