ZAHOOR AHMAD RATHER AND ORS ETC versus SHEIKH IMTIYAZ AHMAD AND ORS ETC on 5 December 2018

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ZAHOOR AHMAD RATHER AND ORS ETC

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SHEIKH IMTIYAZ AHMAD AND ORS ETC

(Civil Appeal Nos. 11853-11854 of 2018)

BDECEMBER 05, 2018

[U. U. LALIT ANDDR. DHANANJAYA Y CHANDRACHUD, JJ.]

Service Law:

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Selection – Advertisement for filling up posts of “TechnicianIII” – Qualification specified for the post was “Matric with ITI” –Appellants applied for the post – All of them possessed Diplomaand none of them possessed ITI certification – They were called forwritten test as well as interview – Thereafter Service Selection BoardDdecided that only ITI in the relevant trade would be considered forthe post – Appellants were not included in the Select List – Appellantsfiled writ petitions seeking consideration of their candidature forselection to the post and sought for quashing of the Select List –Single Judge of High Court quashing the Select List held that it wasnot open to exclude the appellants after the process of selectionEwas set in motion and that Diploma being higher qualification thanITI, their qualification was adequate for the post in question – InLetters Patent Appeals, Division Bench of High Court reversed thejudgment of Single Judge – On appeal, held: The Board did notbring about any change in the Rules or in the norms governing theFselection mid-stream – It only resolved to adhere to the qualificationwhich was prescribed in the advertisement – It would not bepermissible to draw an inference that a higher qualificationnecessarily presupposes acquisition of lower qualification – It isfor the State to determine whether a particular qualification shouldor should not be regarded as equivalent qualification – TheGstipulation in Note 12 of the advertisement that the Board was entitledto assign additional weightage for a higher qualification vests inthe Board with a discretion in pursuance of an enabling power,which may or may not be exercised – A candidate has no vestedright to assert that the Board must as a mandate assign an additionalweightage to a higher qualification – Therefore, Division Bench H

was right in holding that the appellants did not meet the prescribedqualification – However, since the appellants have spent nearlyfour years in pursuing their quest for the job and might have becomeage barred, they are granted age relaxation to the extent of fouryears to apply for any post advertised by the State in the next twoyears.

Judicial Review:

Prescription of qualification – For recruitment to a post –Judicial review – Permissibility – Held: Prescription of qualificationsfor a post is a matter of recruitment policy – It is no part of the roleor function of judicial review to expand upon the ambit of theprescribed qualifications – Similarly equivalence of a qualificationis also not a matter which can be determined in exercise of thepower of judicial review.

Disposing of the appeals, the Court

HELD : 1. The prescribed qualifications for the post ofTechnician-III in the Power Development Department is a Matricwith ITI in the relevant trade. The Board at its 116[th] meetingtook notice of the fact that in some districts, the interviews hadbeen conducted for candidates with a diploma in ElectricalEngineering while in other districts candidates with a diplomahad not been considered to be eligible for the post of Technician-III. Moreover, candidates with an ITI in diverse trades had alsobeen interviewed for the post. The Board resolved at its meetingthat only an ITI in the relevant trade namely the Electrical tradeis the prescribed qualification specified in the advertisement.[Para 17][1093-A-C]

2. The Board did not bring about any change in the rules orthe norms governing the selection mid-stream. There was nodeviation from prescribed requirement for the post, of ITI withMatric. In fact the Board resolved to adhere to the qualificationwhich was prescribed in the advertisement. An anomaloussituation had arisen as a consequence of which, despite theprescribed qualifications, interviews of diploma holders had beenconducted in some districts. This was plainly in breach of theconditions of the advertisement and was rectified by the Board.[Para 18][1093-D-F]

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A3.1 The second ground which weighed with the Single Judgeof High Court was that the holder of a diploma is eligible for thehigher post of Junior Engineer and hence a candidate who holdsa diploma must be “pre-supposed” to hold the lower qualificationof an ITI. Absent such a rule, it would not be permissible to drawan inference that a higher qualification necessarily pre-supposesBthe acquisition of another, albeit lower, qualification. Theprescription of qualifications for a post is a matter of recruitmentpolicy. The State, as the employer, is entitled to prescribe thequalifications as a condition of eligibility. It is no part of the roleor function of judicial review to expand upon the ambit of theCprescribed qualifications. Similarly, equivalence of a qualificationis not a matter which can be determined in exercise of the powerof judicial review. Whether a particular qualification should orshould not be regarded as equivalent is a matter for the State, asthe recruiting authority, to determine. [Paras 18 and 22][1093-E-F; 1097-D-G]D

3.2 While prescribing the qualifications for a post, the State,as employer, may legitimately bear in mind several featuresincluding the nature of the job, the aptitudes requisite for theefficient discharge of duties, the functionality of a qualificationand the content of the course of studies which leads up to theEacquisition of a qualification. The State is entrusted with theauthority to assess the needs of its public services. Exigenciesof administration, it is trite law, fall within the domain ofadministrative decision making. The State as a public employermay well take into account social perspectives that require theFcreation of job opportunities across the societal structure. Allthese are essentially matters of policy. Judicial review must treadwarily. [Para 23][1098-A-C]

P M Latha v. State of Kerala (2003) 3 SCC 541 : [2003]2 SCR 653 ; Yogesh Kumar v. Government (NCT ofGDelhi) (2003) 3 SCC 548 : [2003] 2 SCR 662 ; State ofPunjab v. Anita (2015) 2 SCC 170 – relied on.

Jyoti KK v. Kerala Public Service Commission (2010)15 SCC 596 – distinguished.

4. The stipulation that the qualification prescribed is thebare minimum requirement of the job emphasises that it is anessential requirement, a threshold which cannot be dispensedwith. Under Note 12 of the advertisement, the Board is entitledto assign additional weightage for a higher qualification. Whethersuch a weightage should be assigned is a matter for the Board todetermine. The SSSB did not assign an additional weightage fora higher qualification. In not exercising an enabling power, nofault can be found with the SSSB. An enabling provision postulatesa discretion which may or may not be exercised. A candidate hasno vested right to assert that the Board must as a mandate assignan additional weightage to a higher qualification. All that Note 12postulates is that the mere possession of the prescribedqualification will not entitle a candidate to be called for the writtentest or interview. The Board may shortlist among eligiblecandidates by granting a weightage to a higher qualification inthe relevant line or discipline. But the words “as may be decidedby the Board” in Note 12 indicate that the Board is vested with adiscretion in pursuance of an enabling power which it may or maynot exercise. [Para 25][1098-F-H; 1099-A-C]

5. The Division Bench of the High Court was justified inreversing the judgment of the Single Judge and in coming to theconclusion that the appellants did not meet the prescribedqualifications. There is no error in the decision of the DivisionBench. [Para 22][1097-G-H; 1098-A]

6. The appellants applied in 2013 in pursuance of theadvertisement that was issued by the SSSB. They were pursuingtheir remedies in the writ proceedings which ultimatelyculminated in the order of the Single Judge dated 1 August 2017.The Letters Patent Appeal was allowed on 12 October 2017.Having regard to these circumstances, the appellants should begranted an age relaxation to the extent of four years should theyapply for any other post that may be advertised by the State ofJammu and Kashmir in the next two years. The age relaxation offour years shall be available to the appellants for any postadvertised upto 30 November 2020. [Para 26][1099-E-H]

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Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11853-54 of 2018.

From the Judgment and Order dated 12.10.2017 of the High Courtof Jammu and Kashmir at Srinagar in LPA (SW) No. 135 of 2017 andCLPA (SW) No. 136 of 2017.

With

Civil Appeal No. 11855 of 2018

Shashank Tripathi, Ms. Kaveeta Wadia, Kausar Raza Faridi,DSanjay Rastogi, Advs. for the Appellants.

Riyaz Ahmad Jaan, Sr. Adv., G. M. Kawoosa, Ms. Manjula Gupta,M. Shoeb Alam, Ujjwal Singh, Mojahid Karim Khan, Mohd. NaseemMughal, Manish Kumar Vikkey, Ram Naresh Yadav, Shakil Ahmed Syed,Mohd. Parvez Dabas, Uzmi Zameel Husain, Advs. for the Respondents.

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The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

Civil Appeals @ SLP (C)Nos 30797-30798/2017:

1. Leave granted.

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2. These appeals arise from a judgment of a Division Bench ofthe High Court of Jammu and Kashmir dated 12 October 2017. Whileallowing the Letters Patent Appeal, the High Court set aside a judgmentof a learned Single Judge and, in consequence, directed that the writpetitions shall stand dismissed.G

3. By a Government Order dated 4 December 1996, 23,297 postswere created in various departments of the State of Jammu and Kashmir.5,330 fresh posts were created in the Power Development Department,including among them 3,675 posts of Technician-III and 200 posts ofJunior Engineer. The qualification for the post of Technician-III was H

ZAHOOR AHMAD RATHER AND ORS v. SHEIKH IMTIYAZ AHMADAND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

“Matric with ITI”. The qualification for the post of Junior Engineer,which ranks higher in the hierarchy of posts, was a B E (electrical) /diploma (electrical).

4. On 23 February 2013, an advertisement was issued by the J &K State Service Selection Board (SSSB) for filling up the posts ofTechnician-III in the Power Development Department for variousdistricts including Budgam, Srinagar and Ganderbal. Note 3 of theadvertisement contained the following stipulations, which every applicantwas required to fulfil:

“(3) In possession of the prescribed academic/ professional/technical qualifications and fulfil all other eligibility Conditionswherever required as shown against each post in the Annexuresby or before last date of receipt / submission of application formsi.e. 31.3.2013”

The advertisement also contained the following stipulation in Note 12:

“12. The prescribed qualifications reflect the bare minimumrequirement of the job and mere possession thereof shall notentitle a candidate to be called for written test/ interview and alsogrant weightage to the higher qualification in relevant line / disciplineas may be decided by the Board.”

Annexure C 1 to the advertisement specified the qualificationsprescribed for each post which was advertised. For the post ofTechnician-III in the Power Development Department, the prescribedqualification was:

“Matric with ITI in relevant trade.”

5. The appellants applied for the post of Technician-III. The firstappellant holds a Diploma in Electrical Engineering. Appellants 2, 3 and4 hold a Diploma in Electronics and Communication. Appellants 5 and 6hold a Diploma in Electrical Engineering. None of them possesses theITI certification.

6. On 14 August 2014, a list of disqualified candidates was notifiedby the SSSB. The appellants were not part of that list and were calledfor a written test on 23 August 2014. On 20 November 2014, a notificationwas issued for the purpose of shortlisting candidates who had clearedthe written test, for the interview. The notification reflected the category– open or reserved – under which each candidate was considered.

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1088 SUPREME COURT REPORTS [2018] 14 S.C.R.

AInterviews were conducted for the districts of Budgam, Srinagar andGanderbal at which the appellants appeared.

7. On 31 January 2015, the SSSB held its 116[th] meeting at which,among the subjects on the agenda, was the following:

“Agenda No. 11. During the course of scrutiny of documents inBthe process of framing the selection lists for the post of Technician-III (Power Development Department), it has been observed thatthe Convener of the Interview committee (in some districts) hasconducted the interview of candidates having Diploma in ElectricalEngineering provisionally while as in some other districts, theCcandidates having Diploma in Electronics and communicationEngineering, Electrical Engineering, B.E. (Electrical) have beendeclared as not eligible for the post in question. Furthermore, thecandidates having ITI trade in general Electronic Mechanic,Weldar (Gas & Electric), Instrument Mechanic, Weldar (Gas &Arc), Information Technology and Electronic Systems Maintt. haveDalso been interviewed for the post in question.”8. The Minutes of the Meeting record that the following decisionwas arrived at by the Board:

“ After threadbare discussion, it was decided that only ITI inErelevant trade viz Electrician has to considered as prescribed inthe advertisement Notification.”

9. A select list was published on 23 April 2015. The appellantswere not included in the select list. The reason for the omission is thatnone of them possessed an ITI qualification. Aggrieved by their non-inclusion, the appellants instituted writ proceedings seeking considerationFof their candidature for selection to the post of Technician-III on thebasis of their position in the merit list. The appellants sought the quashingof the select list framed for the three districts without considering theirposition in merit and desired the reframing of the select list.

10. The learned Single Judge by a judgment dated 1 August 2017Gallowed the writ petitions on the ground that it was not open to the SSSBto exclude the appellants after the process of selection was set in motionand they had been subjected to a written test as well as an interview. Inthe view of the learned Single Judge, the rules could not have beenchanged after the selection process had been initiated, particularly sinceHthe list of disqualified candidates did not include them. The learned Single ZAHOOR AHMAD RATHER AND ORS v. SHEIKH IMTIYAZ AHMADAND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

Judge noted that a candidate possessing a Diploma – electrical is entitledto appointment to the post of Junior Engineer which ranks higher thanthe post of Technician – III. Hence, in this line of reasoning, if theappellants were eligible to hold a higher post, their qualification wasadequate for the post of Technician-III and a Diploma in ElectricalEngineering pre-supposes the acquisition of the lower qualification ofMatric with ITI. In this view of the matter, the select list was quashedand the SSSB was directed to reframe it according to the merit securedby the appellants and other candidates. Directions were issued for makingappointments on the basis of the select list as reframed.

11. In the Letters Patent Appeals which were filed before theHigh Court, the Division Bench reversed the judgment of the learnedSingle Judge. The Division Bench held that the advertisement mandatedan ITI in the relevant trade as a condition of eligibility and the SSSB hadnot granted any weightage to a higher qualification, in terms of Note 12.Moreover, the SSSB had categorically taken a decision on 31 January2015 that it was only an ITI in the relevant trade with a Matric qualificationthat meets the prescribed qualifications. In arriving at this conclusion,the Division Bench has inter alia relied on a judgment of this Court in PM Latha v State of Kerala[1].

12. Ms Kaveeta Wadia, learned counsel appearing on behalf ofthe appellants has underlined the significance of the provisions containedin Note 12 to the advertisement dated 23 February 2013. The submissionis that the prescribed qualification of a Matric with ITI is “the bareminimum requirement of job” and the Note contemplates that weightagecan be granted to a higher qualification in the relevant line or disciplineas may be decided by the Board. Learned counsel has buttressed hersubmissions by urging that:

(i) a diploma is in fact a higher qualification than an ITI; and

(ii) ITI holders are entitled to a lateral entry to a diploma coursein Electrical Engineering.

Ms Wadia Placed reliance on a series of advertisements issuedby the Board and on the mark-sheets of ITI with a lateral entry to thediploma course. Devoting a considerable amount of industry to herresearch, Ms Wadia has painstakingly placed on the record thesedocuments in the form of a compilation on the record. Ms Wadia urged 1(2003) 3 SCC 541

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Athat there is no prohibition on the holder of a diploma in seekingappointment as Technician-III. Besides the fact that there is an absenceof a prohibition, learned counsel submitted that Note 12 clearly indicatesthat the prescribed qualifications constitute the bare minimum requirementof the job and that a candidate with a higher qualification cannot bedisqualified. This, in her view, is also the position which has been adoptedBby the Board in an affidavit filed in April 2001 before the High Court inRavinder Singh v State[2]. Learned counsel relied on the orders passedin those proceedings by the High Court. Finally it was urged, placingreliance on a judgment of this Court in Jyoti KK v Kerala PublicService Commission[3]that where a person has acquired a higherCqualification, it can be stated to presuppose the acquisition of the lowerqualification prescribed for the post. In the absence of any exclusion ofa person holding higher qualifications, it was urged, a diploma holdercannot be disqualified from applying for the post of Technician-III.13. On the other hand, it has been urged on behalf of the SSSB byDMr Riyaz Ahmad Jaan, learned senior counsel, that:

(i) While creating the post of Technician-III, the qualificationwhich was prescribed by government was that of a ‘Matricwith ITI’;

(ii) The SSSB is a creature of a statute and has a restrictedEmandate, governed by its provisions;

(iii) The Board at its 116[th] Meeting resolved that in terms of theadvertisement, only holders of an ITI with Matric would beeligible for the post;

(iv) The purpose of the above resolution was to bring about aFuniformity in the selection process;

(v) Note 12 of the advertisement is only an enabling provisionwhich permits the Board to assign a weightage to a higherqualification for the purpose of shortlisting; G(vi) The Board decided against the grant of any such weightage;(vii) No right of the appellants has been infringed and the processwhich has been followed is fair; and 2SWP 1706/2000 CMP No 2727/2000

3(2010) 15 SCC 596H

ZAHOOR AHMAD RATHER AND ORS v. SHEIKH IMTIYAZ AHMAD

AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

(viii) The Board has plainly acted in pursuance of the positionAthat the prescribed qualification for the post of TechnicianIII is Matric with ITI. A diploma holder does not fulfil thatrequirement.

Adopting these submissions, Mr Shoeb Alam, learned counsel forthe State of Jammu & Kashmir urged that the SSSB did not change the‘rules of the game’ mid-stream, as the learned Single Judge seemed tosuggest. On the contrary, the SSSB had affirmed the prescribedqualifications.

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14. On 4 December 1996, the Government of Jammu and Kashmirthrough its Planning and Development Department notified its sanctionto the creation of 23,297 posts. Among them was the post of Technician-III. The qualification prescribed for the post of Technician-III is “Matricwith ITI”.

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15. The Jammu and Kashmir Civil Services Decentralisation andRecruitment Act, 2010 provides in Section 5 that appointment to district,divisional and state cadre posts shall be made by the competent authorityon the basis of a selection made by the Public Service Commission orthe State Service Selection Board, as the case may be. Section 6 providesthus:

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“Section 6. Appointment to District Cadre posts – A person shallbe eligible to the appointment to a District Cadre post onlyif he,- E

(i) is a permanent resident of the State;

(ii) is a resident of the concerned district; and F

(iii) possesses the prescribed qualification, eligibilityand experience for the post as specified under therules/orders regulating recruitment to such posts.”

(emphasis supplied)

16. Rules of 2010 have been framed under the provisions of theAct[4]. Rule 6 provides for the constitution of the Services SelectionBoard. The Board has a three-tier set up comprising of selectioncommittees at the state level, divisional level and district level. Rule 13sets out the procedure for inviting applications and eligibility for differentcadres. Sub-rules (1) and (3) of Rule 13 provide as follows:

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4Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010

A“13. Procedure for inviting applications by the Board and eligibilityfor applying to different cadres, -

(1) The Board shall advertise all State cadre vacanciesreferred to it by the requisitioning authority and inviteapplications for selection to the said posts from theBpermanent residents of the State and possessing theprescribed qualification, ability and experience for suchposts.

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(3) The district offices of the Board shall advertise theCDistrict cadre vacancies of the concerned district referredto it by the requisitioning authority and invite applicationsfor selection to the said posts from such permanentresidents of the State who are residents of that District andpossess the prescribed qualification, eligibility andDexperience for such posts.”

(emphasis supplied)

Rule 14(1) provides for the preparation of a select list:

“14. Procedure for preparation of select lists by the Board, - (1)The Services Selection Board shall hold a written test for all theEeligible candidates who apply for the advertised post (s). The viva-voce of the eligible candidates shall be conducted by the designatedSelection Committee of the Board. The number of candidates tobe called for viva-voce shall not be less than three times andmore than five times the number of vacancies to be filled up. TheFfinal selection shall be made by the Board on the basis of marks /points obtained in viva-voce added to the marks / points obtainedin the written test plus the weightage that may be provided forany higher / additional / special qualification (on pro-rata basis).”

The select list which is finalised by the respective committees hasGto be recommended to the requisitioning authority with the prior approvalof the Board, under Rule 14(4). The said rule reads thus:

“(4) The select list so finalized by the respective Committees shallbe equal to the number of vacancies for which requisition wasmade and recommend it to the requisitioning authority with priorHapproval of the Board.”

17. Under the above provisions as well as in the advertisementwhich was issued by the Board, every candidate must possess theprescribed academic/professional/technical qualification and must fulfilall other eligibility conditions. The prescribed qualifications for the postof Technician-III in the Power Development Department is a Matricwith ITI in the relevant trade. The Board at its 116[th] meeting took noticeof the fact that in some districts, the interviews had been conducted forcandidates with a diploma in Electrical Engineering while in other districtscandidates with a diploma had not been considered to be eligible for thepost of Technician-III. Moreover, candidates with an ITI in diverse tradeshad also been interviewed for the post. The Board resolved at its meetingthat only an ITI in the relevant trade namely the Electrical trade is theprescribed qualification specified in the advertisement.

18. The learned Single Judge was persuaded to accept thesubmissions of the petitioners who had moved the Writ Petition primarilyon two grounds. The first was that the Board had changed the rules inthe midst of the selection process. In holding thus, the learned SingleJudge was clearly in error. The Board did not bring about any change inthe rules or the norms governing the selection mid-stream. There wasno deviation from prescribed requirement for the post, of ITI with Matric.In fact the Board resolved to adhere to the qualification which wasprescribed in the advertisement. An anomalous situation had arisen as aconsequence of which, despite the prescribed qualifications, interviewsof diploma holders had been conducted in some districts. This wasplainly in breach of the conditions of the advertisement and was rectifiedby the Board. The second ground which weighed with the learned SingleJudge was that the holder of a diploma is eligible for the higher post ofJunior Engineer and hence a candidate who holds a diploma must be“pre-supposed” to hold the lower qualification of an ITI. This line ofreasoning appears to be based on the judgment of a two Judge bench ofthis Court in Jyoti KK (supra). Before adverting to the decision in JyotiKK, it would be necessary to advert to some of the decisions of thisCourt on the subject.

19. In PM Latha (supra), a two judge Bench of this Court rejectedthe contention that the B.Ed. qualification is a higher qualification thanthe Trained Teachers Certificate (TTC) and that a B.Ed. candidate shouldbe held to be eligible to compete for the post of a primary school teacher.This Court held:

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A“10. We find absolutely no force in the argument advanced by therespondents that BEd qualification is a higher qualification thanTTC and therefore, the BEd candidates should be held to be eligibleto compete for the post. On behalf of the appellants, it is pointedout before us that Trained Teacher’s Certificate is given to teachersspecially trained to teach small children in primary classes whereasBfor BEd degree, the training imparted is to teach students of classesabove primary. BEd degree-holders, therefore, cannot necessarilybe held to be holding qualification suitable for appointment asteachers in primary schools. Whether for a particular post, thesource of recruitment should be from the candidates with TTCCqualification or BEd qualification, is a matter of recruitment policy.We find sufficient logic and justification in the State prescribingqualification for the post of primary teachers as only TTC and notBEd. Whether BEd qualification can also be prescribed forprimary teachers is a question to be considered by the authoritiesconcerned but we cannot consider BEd candidates, for the presentDvacancies advertised, as eligible.” [5]

[See also Yogesh Kumar v Government (NCT of Delhi)][6].

20. The decision in Jyoti KK arises from a case where the PublicService Commission had invited applications to the post of a Sub-EngineerE(Electrical) in the Kerala State Electricity Board. The qualificationsprescribed for the post were:

“2…

1. SSLC or its equivalent.

F2. Technical qualifications—

(a) Diploma in Electrical Engineering of a recognised institutionafter 3 years’ course of study, OR

G(b) a certificate in Electrical Engineering from any one of therecognised technical schools shown below with five years’ serviceunder the Kerala State Electricity Board, …

5id at page 546H6(2003) 3 SCC 548

ZAHOOR AHMAD RATHER AND ORS v. SHEIKH IMTIYAZ AHMADAND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

OR

(c) MGTE/KGTE in electrical light and power (higher) with fiveyears’ experience as IInd Grade Overseer (Electrical) under theBoard.”

The appellants were holders of a B.Tech. degree in ElectricalEngineering or a Bachelors degree in Electrical Engineering. The PublicService Commission held that they were not eligible for selection. Rule10(a)(ii) of the Kerala State and Subordinate Services Rules 1956contained the following stipulation:

“10. (a)(ii) Notwithstanding anything contained in these Rules orin the Special Rules, the qualifications recognised by executiveorders or standing orders of Government as equivalent to aqualification specified for a post in the Special Rules and such ofthose higher qualifications which presuppose the acquisitionof the lower qualification prescribed for the post shall alsobe sufficient for the post.” (emphasis supplied)

A two judge Bench of this Court, while construing Rule 10 (a)held thus:

A two judge Bench of this Court, while construing Rule 10 (a)held thus:

“7. It is no doubt true, as stated by the High Court that when aqualification has been set out under the relevant Rules, the samecannot be in any manner whittled down and a different qualificationcannot be adopted. The High Court is also justified in stating thatthe higher qualification must clearly indicate or presuppose theacquisition of the lower qualification prescribed for that post inorder to attract that part of the Rule to the effect that such ofthose higher qualifications which presuppose the acquisition ofthe lower qualifications prescribed for the post shall also besufficient for the post. If a person has acquired higher qualificationsin the same Faculty, such qualifications can certainly be stated topresuppose the acquisition of the lower qualifications prescribedfor the post. In this case it may not be necessary to seek far.”[7]

“8. Under the relevant Rules, for the post of Assistant Engineer,degree in Electrical Engineering of Kerala University or otherequivalent qualification recognised or equivalent thereto has beenprescribed. For a higher post when a direct recruitment has to be 7Id at page 598

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Aheld, the qualification that has to be obtained, obviously gives anindication that such qualification is definitely higher qualificationthan what is prescribed for the lower post, namely, the post ofSub-Engineer. In that view of the matter the qualification of degreein Electrical Engineering presupposes the acquisition of the lowerqualification of diploma in that subject prescribed for the post,Bshall be considered to be sufficient for that post.” [8]The Court also noted that there was no exclusion of candidateswho possessed a higher qualification.

21. The decision in Jyoti KK has been considered in a judgmentCof two learned Judges in State of Punjab v Anita[9]. In that case,applications were invited for JBT/ETT qualified teachers. Under therules, the prescribed qualification for a JBT teacher included a Matricwith a two years’ course in JBT training and knowledge of Punjabi andHindi of the Matriculation standard or its equivalent. This Court heldthat none of the respondents held the prescribed qualification and anDMA, MSc or MCom could not be treated as a ‘higher qualification’.Adverting to the decision in Jyoti KK, this Court noted that Rule 10(a)(ii)in that case clearly stipulated that the possession of a higher qualificationcan pre-suppose the acquisition of a lower qualification prescribed forthe post. In the absence of such a stipulation, it was held that such aEhypothesis could not be deduced:

“15. It was sought to be asserted on the basis of the aforesaidobservations, that since the private respondents possess higherqualifications, then the qualification of JBT/ETT, they should betreated as having fulfilled the qualification stipulated for the postsFof JBT/ETT Teachers. It is not possible for us to accept theaforesaid submission of the learned counsel for the privaterespondents, because the statutory rules which were takeninto consideration by this Court while recording theaforesaid observations in Jyoti K.K. case [JyotiK.K. v. Kerala Public Service Commission, (2010) 15 SCC 596],Gpermitted the aforesaid course. The statutory rule, in thedecision relied on by the learned counsel for the private respondents,is extracted hereunder: (SCC p. 598, para 6)

8Id at page 599H9(2015) 2 SCC 170

ZAHOOR AHMAD RATHER AND ORS v. SHEIKH IMTIYAZ AHMADAND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

“6. Rule 10(a)(ii) reads as follows:

‘10. (a)(ii) Notwithstanding anything contained in these Rules orin the Special Rules, the qualifications recognised by executiveorders or Standing Orders of Government as equivalent to aqualification specified for a post in the Special Rules and such ofthose higher qualifications which presuppose the acquisitionof the lower qualification prescribed for the post shall alsobe sufficient for the post..’”

(emphasis supplied)

A perusal of the Rule clearly reveals that the possession ofhigher qualification would presuppose the acquisition of thelower qualification prescribed for the posts. Insofar as thepresent controversy is concerned, there is no similarstatutory provision authorising the appointment of personswith higher qualifications.”[10] (emphasis supplied)

22. We are in respectful agreement with the interpretation whichhas been placed on the judgment in Jyoti KK in the subsequent decisionin Anita (supra). The decision in Jyoti KK turned on the provisions ofRule 10(a)(ii). Absent such a rule, it would not be permissible to drawan inference that a higher qualification necessarily pre-supposes theacquisition of another, albeit lower, qualification. The prescription ofqualifications for a post is a matter of recruitment policy. The state asthe employer is entitled to prescribe the qualifications as a condition ofeligibility. It is no part of the role or function of judicial review to expandupon the ambit of the prescribed qualifications. Similarly, equivalence ofa qualification is not a matter which can be determined in exercise of thepower of judicial review. Whether a particular qualification should orshould not be regarded as equivalent is a matter for the state, as therecruiting authority, to determine. The decision in Jyoti KK turned on aspecific statutory rule under which the holding of a higher qualificationcould pre-suppose the acquisition of a lower qualification. The absenceof such a rule in the present case makes a crucial difference to theultimate outcome. In this view of the matter, the Division Bench of theHigh Court was justified in reversing the judgment of the learned Single A

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AJudge and in coming to the conclusion that the appellants did not meetthe prescribed qualifications. We find no error in the decision of theDivision Bench.

23. While prescribing the qualifications for a post, the State, asemployer, may legitimately bear in mind several features including theBnature of the job, the aptitudes requisite for the efficient discharge ofduties, the functionality of a qualification and the content of the courseof studies which leads up to the acquisition of a qualification. The stateis entrusted with the authority to assess the needs of its public services.Exigencies of administration, it is trite law, fall within the domain ofCadministrative decision making. The state as a public employer maywell take into account social perspectives that require the creation of jobopportunities across the societal structure. All these are essentiallymatters of policy. Judicial review must tread warily. That is why thedecision in Jyoti KK must be understood in the context of a specificstatutory rule under which the holding of a higher qualification whichDpresupposes the acquisition of a lower qualification was considered tobe sufficient for the post. It was in the context of specific rule that thedecision in Jyoti KK turned.

24. Ms Wadia sought to draw sustenance from the fact that theholder of an ITI certification can obtain lateral entry to the diploma course.EThe point of the matter, however, is that none of the appellants fit thedescription of candidates who had secured an ITI certification beforeseeking a lateral entry to a diploma course. Plainly, when an ITI withmatric is required, a person who does not hold that qualification is noteligible.F

25. The submission based on Note 12, urged by Ms Wadia, cannotbe accepted. The stipulation that the qualification prescribed is the bareminimum requirement of the job emphasises that it is an essentialrequirement, a threshold which cannot be dispensed with. Under Note12, the Board is entitled to assign additional weightage for a higherGqualification. Whether such a weightage should be assigned is a matterfor the Board to determine. The SSSB did not assign an additionalweightage for a higher qualification. In not exercising an enabling power,no fault can be found with the SSSB. An enabling provision postulates a discretion which may or may not be exercised. A candidate has novested right to assert that the Board must as a mandate assign anadditional weightage to a higher qualification. Whether to do so or not isa matter for the Board to determine. All that Note 12 postulates is thatthe mere possession of the prescribed qualification will not entitle acandidate to be called for the written test or interview. The Board mayshortlist among eligible candidates by granting a weightage to a higherqualification in the relevant line or discipline. But the words “as may bedecided by the Board” in Note 12 indicate that the Board is vested witha discretion in pursuance of an enabling power which it may or may notexercise.

26. Ms Wadia, learned counsel appearing on behalf of theappellants, however, urged that a peculiar situation arises in the presentcase because the appellants were permitted initially to appear for thewritten test and the interview. Their names were not contained in thedisqualification list. Ms Wadia submitted that the appellants would havebecome age barred by now to pursue any future application. Recourseto our jurisdiction under Article 142 is warranted particularly since theappellants have spent nearly four years in pursuing their quest for thejob of Technician III. They had even succeeded before the learnedSingle Judge. Hence, the rigors of the hardship, which the appellantsconfront, can be met by a suitable direction for age relaxation in theircase. As we have noted in the earlier part of this judgment, the appellantsapplied in 2013 in pursuance of the advertisement that was issued by theSSSB. They were pursuing their remedies in the writ proceedings whichultimately culminated in the order of the learned Single Judge dated 1August 2017. The Letters Patent Appeal was allowed on 12 October2017. Having regard to these circumstances, we are of the view that theappellants should be granted an age relaxation to the extent of four yearsshould they apply for any other post that may be advertised by the Stateof Jammu and Kashmir in the next two years. The age relaxation offour years shall be available to the appellants for any post advertisedupto 30 November 2020. Save and except for the above direction inregard to age relaxation, we have not interfered with the judgment andorder of the Division Bench of the High Court. The appeals shall,accordingly, stand disposed of. There shall be no order as to costs.

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ACivil Appeal No. 11855 of 2018 @ SLP (C)No 31196 of2017:

27. Leave granted.

28. This appeal is also disposed of in the same terms, conditions, observations and directions as in Civil Appeal Nos. 11853-11854 of 2018B@ SLP (C) Nos 30797-30798 of 2017.

Kalpana K. Tripathy

Appeals disposed of.

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