Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Gaurav Mehrotra,Badrish Kumar Tripathi And Case :- SPECIAL APPEAL DEFECTIVE No. - 234 of 2021 Appellant :- State Of U.P. Thru Prin.Secy. Karmik Anubhag-2, And Anr.
Respondent :- Mohit Kumar And Anr.
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Gaurav Mehrotra,Badrish Kumar Tripathi Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Manish Kumar,J.
(Delivered by Hon'ble Manish Kumar,J.)
1. The aforesaid two appeals are against the common judgment dated 10.03.2021, which is impugned in both the appeals, thus, the appeals are being decided by a common judgment.
2. There is a delay in filing of the present special appeals.
Reasons mentioned in the affidavit filed along with application for condonation of delay are found to be satisfactory, hence, the delay in filing the special appeals is condoned and the appeal are heard on merit.
3. The private respondents in the present appeals had preferred writ petitions for non consideration of their candidature in the interview for appointment on the post of Cane Supervisor in pursuance of the advertisement dated 06.10.2016 for the reason that they were not in possession of certificate of Course on Computer Concepts (hereinafter referred to as, the Certificate of CCC) issued by the DOEACC Society.
4. The learned counsel for the private respondents/petitioners in the present appeals has submitted that they were in possession of degrees in which, computer course was one of the subjects, thus, they were eligible for the appointment on the post of Cane Supervisor in view of the Government Order dated 06.05.2016 and 23.09.2016, as clarified subsequently by the order dated 05.07.2018.
5. In supoort of the submissions that these Government orders or the Executive orders are applicable upon the private respondents/petitioners, they relied upon the judgment of the Hon'ble Apex Court in the case of Dhananjay Malik and others Vs. State of Uttaranchal and others reported in (2008) 4 SCC 171 and in the case of Union of India Vs. K.P. Joseph and others reported in 1973 1 SCC 194.
6. The aforesaid judgments of the Hon'ble Supreme Court are on the issue of filling up the gaps. In this case, there is no gap in Rule 9 (ii) of Rules, 2015 which is required to be filled up by any government order or instructions, thus, the judgment relied are not applicable in this case.
7. The learned Single Judge allowed the writ petitions in reference to the Government Orders, which have relaxed the qualifications otherwise provided under the Statutory provisions taking into consideration that the intention of the legislature/employer in providing requirement of the certificate of CCC for the said post is to recruit the candidates suitable to work efficiently in the changing work environment of office. In the judgment impugned, it has been specifically been mentioned that the private respondents did not possess the certificate of CCC but they were in possession of equivalent qualification issued by other recognized institutions which makes them suitable to fulfill the requirement of employer for the post in question.
8. On the other hand, the learned counsel appearing for the State-appellant has submitted that as per the Rule 9 of the Uttar Pradesh Ganna Paryaveshak (Group III) Service Rules, 2015 (Second Amendment) (hereinafter referred to as the Rules, 2015), the certificate of CCC awarded by the DOEACC Society is the academic qualification for the purpose of consideration for appointment on the post of Cane Supervisor. For convenience, the Rule 9 of the Rules of 2015 is being quoted hereunder:-
" Substitution of Rule 9.
COLUMN-1 Existing Rules COLUMN-2 Rule as hereby substituted Academic Qualification
9. A candidate for direct recruitment to a post in the service
(i) must have passed the Intermediate (Agriculture) Examination from the Board of High School and Intermediate Education, Uttar pradesh or an examination recognized by the Government as equivalent thereto, OR
(ii) (a) must have passed the High School Examination from the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto;
(b) must possess two years diploma in Agriculture from a recognized institution.
Academic Qualification
9. A candidate for direct recruitment to a post in the service must possess the following qualification :
(i) Bachelor's degree in Agriculture Science from a University established by law in India or a qualification recognized by the Government as equivalent thereto.
(ii) CCC Certificate in Computer operation awarded by the DOEACC Society.
9. As per the substituted qualification, one was required to be in possession of Bachelor's degree in Agriculture Science apart from CCC Certificate in computer operation of DOEACC Society. The petitioners/ private respondents were not in possession of CCC Certificate. The prayer is accordingly to set aside the judgement of learned Single Judge.
10. Learned counsel for the private respondents submits that petitioners/private respondents were in possession of the Bachelor's degree in Agricultural Science, where the Computer was one of the subject. Thus as per Government Order, they were eligible for appointment on the post of Cane Supervisor. The prayer is accordingly to upheld the judgement of learned Single Judge.
11. We have considered the rival submissions of the parties and perused the records.
12. It is not in dispute that the post in question is governed by the Uttar Pradesh Ganna Paryaveshak (Group III) Service Rules, 2015 (Second Amendment). The qualification provided therein is as under :
9. A candidate for direct recruitment to a post in the service must possess the following qualification:
(i) Bachelor's degree in Agriculture Science from a University established by law in India or a qualification recognized by the Government as equivalent thereto.
(ii) CCC Certificate in Computer operation awarded by the DOEACC Society.
As per Rule 9, one should be in possession of Bachelor's degree in Agriculture Science apart from CCC Certificate of DOEACC Society. It has not been disputed that petitioner is not in possession of CCC Certificate in computer operation. Thus as per the statutory provisions, he is not eligible for appointment on the post of Cane Supervisor. The Government issued letter dated 6.5.2016 to relax the qualification of CCC Certificate. The part of the letter dated 6.3.2016 is also quoted hereunder for ready reference:
**dfu"B lgk;d ,oa vk'kqfyfid ds inks ij p;u gsrq Mh-vks-bZ-,-lh-lh- ¼Mks;d½ lkslkbZVh }kjk iznRr lh-lh-lh- izek.k&i= dh led{krk ds lEcU/k eas 'kklu }kjk fuEuor~ fu.kZ; fy;k x;k gS%& ¼1½ ek/;fed f'k{kk ifj"kn] mRrj izns'k ds lkFk&lkFk dsUnz vFkok fdlh jkT; ljdkj }kjk LFkkfir fdlh [email protected]'k{kk] [email protected]"kn }kjk lapkfyr gkbZLdwy vFkok baVjehfM,V ijh{kk es i`Fkd fo"k; ds :i es dEI;wVj lkbUl fo"k; dks fy;k x;k gksA ¼2½ ;fn fdlh vH;FkhZ }kjk dEI;wVj lkUbl es fMIyksek vFkok fMxzh izkIr dh xbZ gks rks og Hkh dfUk"B lgk;[email protected]'kqfyfid ds inksa ij HkrhZ gsrq ik= gksxkA "
12. The another letter was issued on 23.9.2016 and relevant part of it, is also quoted herein below:
**mijksDr fo"k;d lela[;d 'kklukns'k fnukad [email protected] ebZ 2016 dk d`i;k lanHkZ xzg.k djs] ftlds ek/;e ls dfu"B lgk;d ,oa vk'kqfyfid ds inks ij p;u gsrq Mh-vks-bZ-,-lh-lh- ¼Mks;d½ lkslkbZVh }kjk iznRr lh-lh-lh- izek.k&i= dh led{krk ds lanHkZ es 'kklu }kjk fuEuor~ fu.kZ; fy;k x;k Fkk ¼1½ ek/;fed f'k{kk ifj"kn mRrj izns'k ds lkFk&lkFk dsUnz vFkok fdlh jkT; ljdkj }kjk LFkkfir fdlh [email protected]'k{kk] [email protected]"kn }kjk lapkfyr gkbZ Ldwy vFkok baVjehfM,V ijh{kk es i`Fkd fo"k; ds :i es dEI;wVj lkbUl fo"k; dks fy;k x;k gksA ¼2½ ;fn fdlh vH;FkhZ }kjk dEI;wVj lkUbl es fMIyksek vFkok fMxzh izkIr dh xbZ gks rks og Hkh dfUk"B lgk;[email protected]'kqfyfid ds inksa ij HkrhZ gsrq ik= gksxkA **
13. The Government Order dated 05.07.2018 is also quoted hereunder:
fo"k;& Mh-vks-bZ-,-lh-lh-¼Mks;d½ lkslkbVh }kjk iznRr lh-lh-lh- izek.k&i= dh led{krk ds lEcU/k esaA egksn;] dfum lgk;d] vk.kqfyfid ,oa ,slh leLr jkT;k/khu yksd lsokvksa vkSj inksa ftu ij p;u gsrq Mh-vks-bZ-,-lh-lh-¼Mks;d½ lkslkbZVh ¼ifjofrZr uke NIELIT-National Institute of Electronics And Information Technology½ }kjk iznRr lh-lh-lh- izek.k&i= visf{kr gS] dh led{krk ds lEcU/k esa lela[;d 'kklukns'k fnukad [email protected] ebZ] 2016 ,oa 23 flrEcj] 2016 fuxZr fd;s x;s gSaA 2- led{krk ds lEcU/k esa gks jgh O;kogkfjd dfBukbZ;ksa ds n`f"Vxr lh-lh-lh- izek.k i= ,oa mldh leds{k vgZrk dks vkSj Li"V djus gsrq lE;d~ fopkjksijkUr 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd dEI;wVj esa mPPk ;ksX;rk /kkjh ;Fkk&dEI;wVj esa fMIyksek] fMxzh] ih-th-Mh-lh-,-] ch-lh-,-] ,e-lh-,- rFkk xsztq,s'ku vFkok mPp fMxzh ¼ch-,-] ch-,l-lh-] ch-Vsd- ,e-,l-lh] ,e-ch-,-½ esa dEI;wVj ,oa fo"k; ds :i vFkok ,d lsesLVj esa dEI;wVj dkslZ /kkfjr djus okys vH;fFkZ;ksa dks Hkh iz'uxr inksa ds p;u gsrq vgZ ekuk tk;sxkA 3- bl lEcU/k esa eq>s ;g dgus dk funs'k gqvk gS fd 'kklu }kjk fy, x, mDr fu.kZ; dk vuqikyu lqfuf'pr fd;k tk;A
14. At this stage it is necessary to observe that the administrative order referred to above i.e. 3/6.5.2016, 23.9.2016 and 05.07.2018 cannot be read in conflict to the Rule 9 (ii) of Rules, 2015. The Rule , 2015, as amended require CCC Certificate of computer science. It could not have been nullified by an administrative order, unles so provided in the Rules itself as in the case of Rule 9 (i) of Rules, 2015.
15. The Hon'ble Supreme Court in catena of judgments has held that the statutory provisions cannot be supplanted by issuance of Administrative Orders, Office Memorandums etc. The relevant extract of the judgment of the Hon'ble Supreme Court in the case of Union of India and Another Vs. Ashok Aggarwal reported in (2013) 16 SCC 147 is being quoted hereunder:-
" 59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. ( Vide Union of India Vs. Majji Jangamayya, P.D. Aggarwal V. State of UP, Paluru Ramkrishnaiah v. Union of India, C. Rangaswamaiah v. Karnataka Lokayukta and Joint Action Committee of Air Line Pilots' Assn. of India V. D.G. of Civil Aviation. )
60. Similarly, a Constitution Bench of this Court in Naga People's Movement of Human rights V. Union of India, held that the executive instructions have binding force provided the same have been issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions."
16. The Hon'ble Supreme Court in the case of Government of Andhra Pradesh and others Vs. P. Laxmi Devi reported in (2008) 4 SCC 720 has held as under:- .
" 34. In India the grundnorm is the Indian Constitution, and the hierarchy is as follows:-
i) The Constitution of India;
ii) Statutory law, which may be either law made by Parliament or by the State Legislature;
iii) Delegated legislation, which may be in the form of rules made under the statute, regulations made under the statute, etc;
iv) Purely executive orders not made under any statute.
35. If a law (norm) in a higher layer in the above hierarchy clashes with a law in a lower layer, the former will prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the directive principles which, by Article 37, have been expressly made non-enforceable. "
17. It is settled law that an administrative order can supplement the statutory provisions but cannot supplanted it. The administrative order referred to above and quoted has supplanted the statutory provisions. It was not in the domain of the administration to issue order dehors the statutory provisions. Thus even the administrative order could not have been read to the benefit of candidate going dehors the Rules.
18. A similar controversy has been decided by this Court in Special Appeal Defective No. 440 of 2021 by the judgment dated 07.07.2021 and held that the statutory provisions cannot be superseded by the administrative orders.
19. The learned counsel for the private respondents-petitioners failed to dispute that a similar controversy has already been attained finality by the judgment dated 07.07.2021 passed in Special Appeal (Defective ) No. 440 of 2021.
20. The qualification is to be determined by the employer for any post and it is not for the Courts to consider and assess the possession of qualification.
21. The Hon'ble Supreme Court in the case of Zahoor Ahmad Rather and others Vs. Sheikh Imtiyaz and others reported in (2019) 2 SCC 404 has held as under:-
".....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 Rattler, 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 other IPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the Division Bench.
22. A similar note of restraint was entered in Maharashtra Public Service Commission v. Sandeep Shriram Warade [2019 6 SCC 362]. The para no. 9 is being reproduced hereunder of the said judgment:-
"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."
23. Recently, the Hon'ble Supreme Court in the case of Punjab National Bank Vs. Amit Kumar Das reported in 2020 SCC Online SC 897 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 prescribed 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....."
24. Learned Single Judge, however, placed reliance on the administrative orders ignoring the statutory provisions. The petitioners / private respondents were not having CCC Crtificate from DoEACC Society as provided under Rule 9 (ii) of Rules, 2015 without any exception or reservation. It does not suffice the condition given even in the administrative order and otherwise it could not have been read in conflict with the statutory provisions. Accordingly, we find substance in the appeal and accordingly the judgement of learned Single Judge dated 10.03.2021, is set aside.
25. Accordingly, the appeals are allowed.
Order Date :- 13.08.2021 Ashish Court No. 32 Case :- SPECIAL APPEAL DEFECTIVE No. - 233 of 2021 Appellant :- State Of U.P. Thru. Prin.Secy. Karmik Anubhag Lko. & Anr.
Respondent :- Mohit Kumar & Ors.
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Gaurav Mehrotra,Badrish Kumar Tripathi And Case :- SPECIAL APPEAL DEFECTIVE No. - 234 of 2021 Appellant :- State Of U.P. Thru Prin.Secy. Karmik Anubhag-2, And Anr.
Respondent :- Mohit Kumar And Anr.
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Gaurav Mehrotra,Badrish Kumar Tripathi Hon'ble Manish Kumar,J.
The judgment is being pronounced under Chapter VII 1 (2) of the Allahabad High Court Rules, 1952.
Order Date :- 13.08.2021 Ashish