Court No. - 39
Case :- WRIT - A No. - 18144 of 2021 Petitioner :- Amresh Kumar Sharma Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Jagdish Sharan Tomar Counsel for Respondent :- C.S.C.,M.N. Singh
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Vikas Budhwar,J.
Heard learned counsel for the petitioner, Sri Avnish Tripathi learned Advocate appearing for the respondent-Commission and learned Standing Counsel for the State respondents.
By means of the present writ petition, the petitioner herein who is not even an applicant against the advertisements dated 13.8.2021 and 8.11.2021, seeks to challenge the validity of the said advertisements as also the Rule 8 of the U.P. Fire Service (Gazetted Officers) Service Rules, 2016 (In short as "the Rules, 2016") being contrary to the old Rules i.e. U.P. Fire (Gazetted Officers) Service Rules, 1984 (In short as "the Rules, 1984") as also the U.P. Fire Safety Act, 2005 (In short as "the Act, 2005") readwith the U.P. Fire Safety Rules, 2005 (In short as "the Rules 2005") as well as the National Building Code, 2016.
At the outset, it is sought to be submitted by the learned counsel for the petitioner that one of such writ petitions has been entertained by the Lucknow Bench and the counter affidavit has been called for. The contention, thus, is that this Court may also call for the counter affidavit.
Considering the same, we have requested the learned counsel for the petitioner to address us on the merits of the challenge to the advertisement as also the validity of the Rule 8 of the Rules, 2016.
We may note, at this juncture, that the qualifications as prescribed in the advertisement under challenge are in conformity with the Rule 8 of the Rules, 2016, which has been framed by the Governor of the State in exercise of the power conferred by the proviso to Article 309 of the Constitution and in super-session of all existing rules and orders on the subject. The Rules, 2016 namely the Uttar Pradesh Fire Service (Gazetted Officers) Service Rules, 2016 has been framed to regulate recruitment and conditions of service of persons appointed to the U.P. Fire Service (Gazetted Officers) Service. For the post of Chief Fire Officer, the academic qualification prescribed in Rule 8 of the Rules, 2016 reads as under:-
"8. A candidate for direct recruitment to the post of Chief Fire Officer in the Service must possess the following qualifications:-
Degree in Fire Engineering from National Fire Service College, Nagpur or any equivalent degree from an Institution of comparable status recognised by Government of India and the State Government of Uttar Pradesh;
or Bachelor of Engineering/B.Tech in Mechanical/ Chemical/Civil/Electrical/Industrial/Hydraulic Engineering from an Institution regognised by the Government of India and the State Government of Uttar Pradesh."
Having perused the qualification prescribed therein, it is evident that apart from the Degree in Fire Engineering which is accorded by the National Fire Service College, Nagpur or any equivalent degree from an institution of comparable status recognized by the Government of India and the State of Uttar Pradesh is one of the qualification for appointment to the post of Chief Fire Officer. Another alternative qualification is the Degree in Bachelor of Engineering/B.Tech in Mechanical/Chemical/Civil/Electrical/Industrial/Hydraulic Engineering from an Institution recognized by the Government of India and the State of U.P.
The challenge to the said qualification is based solely on the ground that the old Rules, 1984 which had also been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution provided the essential qualification for the post of Chief Fire Officer as under:-
"Three years degree in Fire Engineering from National Fire Service College, Nagpur or any equivalent degree from a recornised institution of comparable status.
or Divisional Officers Course from National Fire Service College, Nagpur or equivalent course from recognised institution of comparable status."
The preferential qualifications as prescribed therein for the post in question reads as under:-
"(i) Knowledge of automobile repairing.
(ii) Experience of practical Fire Fighting and handling major conflagrations."
The essential and preferential qualification as prescribed in the Old Rules had been amended by framing Rules, 2016 which had superseded all the existing Rules. There is no challenge to the competence for amendment nor there is any challenge to the validity of the Rules, 2016 being in contravention of any of the provisions of the Constitution. The plea of the petitioner of the Rules, 2016 being not in consonance with the old Rules, 1984, which has been superseded in exercise of powers conferred under Article 309 of the Constitution of India, is nothing but wholly misconceived.
Nothing could be placed before the Court as to whether the said Rules are framed in contravention of the present Act, i.e. the U.P. Fire Safety Act, 2005.
Even otherwise, prescribing a qualification for appointment to a post is the job of the experts. The Court is not equipped to sit over the decision of the experts as in appeal to prescribe or to adjudge or assess the suitability or desirability of a particular qualification that may be stipulated. It is not for the Court to assume the role of the expert to delve into the question of equivalence or relevance of an education qualification as the said function necessarily stands reserved for the experts in the field namely the Academicians.
In the case of P.V. Joshi And Others Vs. Accountant General, Ahemdabad And Others reported in 2003 (2) SCC 632 the Hon'ble Supreme Court has held as under:-
"10. We have carefully considered the submissions made on behalf of both parties. 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 and 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/substruction 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. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
In the case of Sanjay Kumar Manjul v. U.P.S.C. reported in (2006) 8 SCC 42 the Hon'ble Apex Court has held as under:-
"25. The statutory authority is entitled to frame statutory rules laying down terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned who can take ultimate decision therefor.
26. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same.
27. It is well-settled that the superior courts while exercising their jurisdiction under Articles 226 or 32 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post."
The Supreme Court in the case of Zahoor Ahmad Rather Vs. Sheikh Imtiyaz Ahmad reported in (2019) 2 SCC 404 has held as under:-
"26. ...... 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 K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on a specific statutory rule under which the holding of a higher qualification could presuppose 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 [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the High Court was justified in reversing the judgment [Zahoor Ahmad Rather v. State of J&K, 2017 SCC OnLine J&K 936] 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 [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the Division Bench."
The Hon'ble Apex Court in the case of Maharashtra Public Service Commission Vs. Sandeep Shriram Warade reported in 2019 (6) SCC 362 has held as under:-
"9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being on a par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same."
More recently three learned Judges of the Supreme Court in Punjab National Bank Vs. Anit Kumar Das reported in 2020 SCC Online SC 897 has observed 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 "
A full Bench decision of this Court in the case of Deepak Singh and Others Vs. State of U.P. and Others (2020) All LJ 596 (FB) while exercising the question posted before held as under:-
"The State Government, while prescribing the essential qualifications or desirable qualifications are best suited to decide the requirements for selecting a candidate for nature of work required by the State Government and the courts are precluded from laying down the conditions of eligibility. If the language in the Rules is clear judicial review cannot be used to decide what is best suited for the employer."
The proposition of law as culled out by the Hon'ble Apex Court as well as this Court clearly mandates that the Court under Article 226 of the Constitution of India cannot trench into the province which is earmarked for the rule making authority and discharge the role and the function of the experts to prescribe a particular qualification for a post to be filled namely, the academicians.
Even otherwise, no material has been brought before us in the present writ petition to even demonstrate that the alternative qualification of Bachelor of Engineering/B.Tech prescribed for recruitment to the post of Chief Fire Officer has no relevance with the nature of the job or the post in question.
For all the above reasons, we do not find any good ground to entertain the writ petition.
The writ petition is, accordingly, dismissed as misconceived.
Order Date :- 23.12.2021 Brijesh