Heard Sri Anurag Srivastava, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri Neerav Chitravanshi, learned counsel for the opposite party Nos.2 to 4.
Sri Anurag Srivastava, learned counsel for the petitioner has filed supplementary affidavit, today in the Court, the same is taken on record.
This Court has passed the order dated 11.02.2021 as under:-
"1. Heard Sri Anurag Srivastava, learned counsel for the petitioner, learned standing counsel for respondent No.1 and Sri Neerav Chitravanshi, learned counsel for respondent Nos.2 to 4.
2. The petitioner claims that he was granted appointment on the post of Junior Engineer (JE), Electrical in U.P. Power Corporation Ltd. vide appointment order dated 07.05.2012 and in pursuance thereof, he joined the post and is discharging his duties and functions.
3. Learned counsel for the petitioner submitted that under Rule 5 of U.P. Vidyut Parishad Abhiyanta Seva Viniyamawali, 1970, it has been provided that JEs, who are eligible as per rules, are entitled for grant of promotion on the post of Assistant Engineer (AE).
4. He further submitted that one of the criteria under the rules is that the candidate, who is claiming promotion on the post of AE, should be appointed as JE having qualification of B.E. / A.M.I.E. and should have completed ten years service but due to COVID-19 pandemic, petitioners B.E. qualification could not be completed within time period stipulated under the rules.
5. He next submitted that the petitioner is otherwise qualified, in case exemption is granted in regard to date prescribed under the rules and in case taking into consideration the COVID-19 pandemic, the same is relaxed, the petitioner shall be entitled for consideration of his claim for grant of promotion on the post of A.E.
6. He next submitted that in regard to grievances raised in the present writ petition, the petitioner has already filed representation before respondent No.4, which is lying pending consideration.
7. On the other hand, learned counsel for the respondents submitted that there is a rider under the rules that JE, who has claimed promotion on the post of AE, should qualify till first july of the year of selection proposed to be made.
8. They further submitted that it is admitted case of the petitioner that he does not have qualification of B.E. on first of july of the selection year, therefore, his claim is contrary to Rule 5 of Rules of 1970.
9. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
10. Law is very much settled in the case of U.P. Public Service Commission Vs. Kumari Alpana; 1994 SCC (2) 723, wherein the controversy came for consideration that whether the rule prescribing a date to qualify and complete the qualification in pursuance to a notification issued, can be considered for grant of appointment / selection / promotion, if he does not have requisite qualification on the last date of submission of application form or date prescribed under the rules, Hon'ble Apex Court has imposed a rider that the date prescribed under the rules of notification inviting applications cannot be held to be arbitrary or illegal. In this regard, Hon'ble Apex Court has further held that relevant date for consideration of requisite qualification is the date fixed under the rules or the advertisement. The candidate, who does not fulfill the requisite criteria prescribed under the advertisement, is not entitled to apply in pursuance to the advertisement.
11. Learned counsel for the petitioner requested that some time be granted so that he may examine the ratio of the judgment pointed out by this court.
12. Accordingly, put up this matter as fresh on 17.02.2021.
13. It is, however, clarified that on the next date fixed, the case shall not be adjourned on any count."
Learned counsel for the petitioner has submitted that undoubtedly the law is clear on the point that if the candidate does not fulfill the requisite criteria prescribed under the advertisement, he would not be entitled to apply pursuant to the said advertisement. However, considering the peculiar circumstances, mainly the circumstances of COVID-19, the Board of Directors has power to relax such condition. Therefore, the liberty may be given to the petitioner to approach the Board of Directors to relax the condition of the requisite qualification till first of July of the selection year.
Sri Neerav Chitravanshi, learned counsel for the opposite party Nos.2 to 4 has submitted that in view of the settled law by the Hon'ble Apex Court in re: Kumari Alpana (supra), the candidature of the petitioner could not have been considered as he was lacking qualifications in terms of the advertisement. Therefore, he has submitted that if the petitioner approaches the Competent Authority preferring a representation, the decision shall be taken strictly in accordance with law and in the given facts and circumstances his candidature may not be considered, therefore, preferring the representation would be a futile exercise.
So far as the powers of the Board of Directors to relax the conditions are concerned, Sri Chitravanshi has submitted that he has no instructions on that point, therefore, he may not comment thereon.
Without entering into merits of the issue and considering the rival submissions of learned counsel for the parties, the liberty is given to the petitioner to prefer a fresh representation to the Board of Directors within a period of fifteen days taking all pleas and grounds which are available with him annexing therewith the relevant documents in support of his claim and if such representation is preferred by the petitioner, the Board of Directors shall consider and decide the same strictly in accordance with law by a speaking and reasoned order with expedition preferably within a period of three months from the date of receipt of a certified copy of this order along with representation and the decision thereof be intimated to the petitioner forthwith.
In view of the aforesaid terms, the writ petition is disposed of finally.
Order Date :- 19.2.2021 Suresh/ [Rajesh Singh Chauhan,J.]