ASHISH KUMAR versus THE STATE OF UTTAR PRADESH & ORS. on 31 January 2018

ASHISH KUMAR

v.

THE STATE OF UTTAR PRADESH & ORS.

(Civil Appeal Nos. 170-171 of 2018 )

JANUARY 31, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Service Law:

Appointment – Denial – Propriety of – Advertisement forappointment to the post of ‘Psychologist’ – After written examinationappellant (candidate) was declared successful – At the time ofverification of his documents, he was told that he was not eligiblefor appointment as he did not possess training qualification i.e.L.T./B.T.B.Ed. alongwith graduation with Psychology – Writ Petitionby appellant – Dismissed by Single Judge of High Court – Orderfurther confirmed in Special appeal and also in Review petition –On appeal, held: Advertisement cannot be read to mean providingfor graduate in Psychology with L.T./B.T.B.Ed.– A harmoniousreading may mean that a person graduate in Psychology or L.T./B.T.B.Ed. with Psychology is eligible – Service Rules provide thatPost Graduation in Psychology is qualification for the post andB.Ed’s is only preferential qualification – Any part of advertisementwhich is contrary to the statutory rules has to give way to thestatutory prescription – Appellant being a post-graduate inPsychology fulfills the qualification and hence entitled to beappointed on the post of Psychologist – Janjatiya Vikas ShikshanAur Kermchariverg Sewa Niyamavali, 1991.

Allowing the appeals, the Court

HELD: 1. The advertisement cannot be read to meanproviding for graduate in Psychology with L.T./B.T. B.Ed. Thewords graduate/L.T./B.T. B.Ed. are all alternative qualificationwhich are prefixed with word “In subject of Psychology”. Aharmonious reading may mean that a person graduate in subjectof Psychology or L.T./B.T. B.Ed. with Psychology is eligible. Whenthe post is of Psychologist, both graduation with Psychology andtraining certification i.e. L.T./B.T. B.Ed. have also to be with

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APsychology. The respondents have wrongly interpreted theadvertisement to mean that the person should possess bothgraduate with Psychology as well as L.T./B.T. B.Ed. which on theface of it does not appear to be correct.[Paras 14, 15] [703-D-F]

2. In advertisement, with regard to various qualifications,Bwords “;k” (or) “lkFk” (with), “vFkok”(either) and stroke ‘(/)’ havebeen used. The appointing authority is well aware of the meaningof stroke ‘(/)’, word “or”, “either” and “with” which has beenfrequently used in the qualifications which is apparent from theadvertisement. The Appointing Authority used word ‘with’(lkFk),when it wanted both the qualifications together. Wherever strokeC‘(/)’ has been used it was used, when either of the qualificationswere indicated. [Para 17] [703-G-H; 704-A-B]

3. Before the aforesaid qualifications, the words “inPsychology subject” has been used as prefix, which clearly meansthat all the alternative qualifications were required to have withDPsychology subject i.e. Graduation with Psychology/L.T./B.T.B.Ed. in the subject of Psychology. Hence, all the three i.e.Graduation, L.T., B.T. B.Ed. has to be in Psychology subject.Those persons who have done L.T./B.T. B.Ed. with Psychologysubject are eligible like person graduated with Psychology, whichEis the plain and simple meaning of the advertisement. [Para 17][705-D-E]

4. Janajitiya Vikas Skikshan Aur Kermchariverg SewaNiyamawali (1991 Rules)clearly indicate that qualification forPsychologist is M.A. in Psychology. The B.Ed. is a preferentialFqualification and essential qualification is only M.A. in Psychology.The qualification prescribed in the Rules does not provide forL.T./B.T. B.Ed. as essential qualification. Thus non-possessionof L.T./B.T. B.Ed. does not make him disqualified for the post asper Statutory Rules of 1991. Appellant is post-graduate inpsychology and thus, also fulfills the qualification prescribed inGthe 1991 Rules. When under the statutory rules appellant fulfillsthe qualification; there is no occasion to deny appointment tohim. [Paras 20, 21] [706-F-G; 707-B-C]

5. Any part of the advertisement which is contrary to thestatutory rules has to give way to the statutory prescription. Thus,Hlooking to the qualification prescribed in the statutory rules, appellant fulfills the qualification and after being selected for thepost, denying appointment to him is arbitrary and illegal. [Para22] [707-C-D]

Malik Mazhar Sultan & Anr. v. U.P. Public ServiceCommission & Ors. (2006) 9 SCC 507 : [2006] 3SCR 689 – relied on.

6. The appellant after being selected for the post ofPsychologist was illegally denied issuance of appointment letteron wrong interpretation of the advertisement and the rules, hence,the appellant has made out a case for issuing a direction to appointhim on the post of Psychologist. [Para 23] [708-B-C]

Case Law Reference

[2006] 3 SCR 689relied onPara 22

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 170-171 OF 2018

From the Judgment and Order dated 04.10.2010 in Special AppealNo. 446 of 2006 and Judgment and order dated 20.12.2012 in ReviewPetition No. 354 (Defective) of 2012 of the High Court of Judicature atAllahabad, Lucknow Bench, U. P.

Mukesh K. Giri, Ankit Khera, Advs. for the Appellant.

Ajay Kumar Mishra, AAG, Ms. Aishwarya Pathak, Akshat Kumar,Rajiv Yadav, Advs. for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. These two appeals have been filedagainst the judgment of High Court of judicature at Allahabad (LucknowBench), Lucknow, dated 04.10.2010 dismissing the Special Appeal No.446of 2006 of the appellant as well as judgment dated 20.12.2012 dismissingthe review application filed by the appellant. Parties shall be referred toas referred in the appeal.

2. Brief facts of the case giving rise to these appeals are:

The appellant belongs to other backward caste who has passedgraduation (B.A.) with Psychology and has also done post-graduation inPsychology from Kanpur University. Appellant has also obtained masterdegree in Human Resource Management and Industrial Relations fromLucknow University in the year 1997. An advertisement dated 30.08.2001

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Awas issued by the Director, Social Welfare Department, U.P., advertisingvarious posts under Director, Social Welfare Department and otherdepartment of State. Advertisement also contained recruitment for postof Psychologist (03 posts). The appellant submitted the application forthe post of ‘Psychologist’. The appellant was issued admit card forappearing in the written examination. The appellant appeared in theBwritten examination and was declared successful and included in themerit list. A letter dated 02.05.2003 was issued to the appellant askingthe appellant to appear along with original certificates for verification ofdocuments. The appellant appeared along with all the documents on12.05.2003. When appellant appeared on 12[th] May, he was informedCthat he is not eligible and his appointment for the post of ‘Psychologist’cannot be made. The appellant submitted a representation on 02.06.2003to the respondent. The appellant having not been given appointment;hence, he filed a writ petition praying for the following relief:

“PRAYER

D(I) issue a writ order or direction including a writ in thenature of mandamus commanding theo p p o s i t eparties to appoint the petitioner on the post ofPsychologist for which the petitioner is fullyeligible and qualified as per advertisementpublished for direct recruitment in SAMOOH ‘GA’.E

(II) Issue a writ order or direction including a writ in thenature of mandamus commanding the opposite not toappoint any other candidature on the post ofPsychologist for which the petitioner is fully eligible.

(III) Issue a writ order or direction including a writ in theFnature of mandamus commanding the opposite partiesnot to harass and victimize the petitioner in any mannerwhatsoever.

(IV) Issue such other order/orders as may deem just andproper by this Hon’ble Court in the Circumstances ofGthe case.

(V) Award the cost of petitionin favour of the petitioner.”

3. In the writ petition, learned single Judge directed for filing acounter affidavit and also bringing on record the copy of the Order passedon the representation of the appellant dated 02.06.2003. The appellantHalso filed a Contempt Application No.182 of 2004 in which Director, Social Welfare was directed to appear in person. An Order dated19.04.2004 was passed by the respondent rejecting the representationof the appellant. The appellant prayed for amendment of the writ petition,praying for quashing the order dated 19.04.2004 which prayer wasallowed to be added. Learned single Judge by its judgment dated18.05.2006 dismissed the writ petition. Learned single Judge acceptedthe case taken up by the respondent in the counter affidavit that appellantis not qualified for the post since he does not have training qualificationi.e. L.T./B.T.B.Ed. The appellant filed special appeal which too wasdismissed. Review application filed thereafter was also rejected.

4. We heard Shri Mukesh K. Giri, learned counsel for the appellantand Shri Ajay Kumar Mishra, Additional Advocate General, appearingfor the State of U.P.

5. Learned counsel for the appellant submits that the appellantbeing graduate and post-graduate in ‘Psychology’ was fully eligible forthe post of ‘Psychologist’. It is submitted that the advertisement hasbeen wrongly read by the High Court. Graduate in Psychology wasqualified for the post and advertisement does not prescribe qualificationas graduate with Psychology and L.T./B.T. B.Ed. He further submitsthat although the post of Psychologist in the Social Welfare Departmentwas declared as dead cadre by the Government Order dated 09.05.2008but said posts were again revised by the subsequent Government Orderdated 17.08.2010. He submits that post of Psychologist is not a teachingpost; hence, it was not necessary to have training qualification. Learnedcounsel has also relied on the rules namely Janjatiya Vikas Shikshan AurKermchariverg Sewa Niyamawali, 1991, according to which, he submitsthat for Psychologist, training qualification is not essential qualificationand as per rule minimum qualification is M.A. in Psychology. B.Ed. isonly preferable qualification. He submits that the essential work of thePsychologist was to provide educational counseling to the students andother duties and was not essentially a teaching post. He submits that theadvertisement mentioned, in subject of Psychology Graduate or L.T./B.T. B.Ed.

6. Shri Ajay Kumar Mishra, Additional Advocate General, refutingthe submissions of learned counsel for the appellant contends thatrespondents have rightly held the appellant not qualified. He submitsthat according to advertisement essential qualification is graduate inPsychology with L.T./B.T.B.Ed. He submits that Janjatiya Vikas Shikshan A

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AAur Kermchariverg Sewa Niyamawali, 1991, hereinafter referred to as1991 Rules governed the fields. It is, however, submitted that althoughappellant was called to appear in written examination and interview buton discovering that he is not eligible as per the requirement of therecruitment rule, the respondent corrected the mistake on their part bynot going any further with the appointment of the appellant by rejectingBhis candidature.7. We have considered the submissions of the learned counsel forthe parties and perused the record.

8. The parties are at variance with regard to correct import of theCadvertisement. The appellant’s case was that as per the advertisementthe graduation in Psychology was the minimum qualification andqualification of L.T./B.T. B.Ed. were independent qualification on fulfillingof which candidate was qualified. Advertisement does not requiregraduate with Psychology with L.T./B.T. B.Ed. to make candidate eligible.Whereas the respondent’s case is that the candidate shall be qualifiedDonly when he is both graduate with Psychology and possesses L.T./B.T.B.Ed. The case of the respondent is that although the appellant wasissued admit card and called to appear in the written and in interview buthis appointment was not issued since it was realized that he does nothave L.T./B.T. B.Ed. qualification. In paragraph 4(Xiii) of the counterEaffidavit it has been reiterated that even if there is some ambiguity in theadvertisement, the appointment has to be made as per the recruitmentrules which in this case is 1991 Rules. It is useful to extract following asstated in paragraph 4(Xiii) of the counter affidavit:

“4.(Xiii) That is further respectfully submitted that arguendo,Feven if it is conceded that there was some ambiguity in theadvertisement, the petitioner herein cannot be allowed tomisinterpret the same in his favour as it is trite that theappointment has to be made in accordance with therecruitment rules which in this case is the Janjatiya VikasSikchan Aur Kermchariverg Sewa Niyamawali, 1991. It isGalso humbly submitted that if there was any ambiguity in therequirements mentioned in the advertisement, it has to beread in consonance with the recruitment rules.

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Therefore, keeping the abovesaid settled position of law H

in mind, it is most respectfully submitted by the respondentherein that though the petitioner herein was inadvertentlyissued the admit card for appearing in the writtenexamination as well as called for the interview, therespondent authorities, on discovering that the petitionerherein was not eligible as per the requirements of therecruitment rules as he did not possess the requisite L.T./B.T./B.Ed as prescribed, rightly corrected the mistake ontheir part by not going any further with the appointment ofthe petitioner herein and rejected his candidature as suchan appointment would be void.”

9. Learned single Judge took the view that the appellant shouldhave possessed the qualification of trained graduate and since he doesnot possess the said qualification, his claim has rightly been rejected. Itis useful to quote the last portion of the judgment:

“...Accordingly the petitioner should have possessed thequalification of trained graduate and since he does notpossess the said qualification, which is eligible for on thepost of L.T.grade teacher, I am of the view that the claim forappointment on the post of L.T. grade teacher, has rightlyrejected.

The petition is dismissed. No order as to cost.”

10. The Division Bench of the High Court made followingobservations:

“...The educational qualification for the post in question isthat the candidate must be graduate with the subject ofPsychology along with other essential qualifications of beingL.T./B.T./B.Ed. The condition of being B.Ed or beingpossessed L.T./B.T. certificates or B.Ed. degree is an essentialqualification along with the condition of being graduate withthe subject Psychology. If a candidate is not possessed ofany of the aforesaid essential qualifications, he/she shallnot be eligible for participating in selection nor can beappointed.

Under the relevant rules i.e. Janjatiya Vikas SikchanAur Kermchariverg Sewa Niyamawali, 1991 of which areference has been made by the learned Single Judge also AB

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Ashows that qualifications requires a graduate with the subjectof Psychology, with L.T./B.T./B.Ed., as the case may be.

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Be that as it may, in the advertisement in pursuance ofwhich the appellant had applied the prescribed qualificationBwas graduation with subject Psychology along with L.T./B.T./B.Ed. degree. That being so the appellant fully knew at thetime of application that he mus possess the said essentialqualifications as pronounced in the advertisement. In casehe was aggrieved by description of such qualifications, heCcould have been better advised to challenge the saidadvertisement event before applying but once he has appliedin terms of the aforesaid advertisement without any protesthe cannot take a turn and say that these conditions wereillegally placed in the same.”

D11. The appellant has brought on record both the advertisementas well as 1991 rules. The advertisement has been filed as Annexure A-1 along with I.A.No.2 of 2013. The advertisement was issued in Hindinewspaper “Dainik Jagran” and photocopy of first page of the newspaperis also annexed at page 24 of Annexure A-1. The translated copy inEnglish has also been attached at page 6. We are concerned with theEpost of Psychologist in the present case. Hence, it is useful to refer tothe qualification prescribed for the aforesaid post.

12. The original advertisement being in vernacular Hindi, it is relevant tonote the said content of vernacular advertisement which was to thefollowing effect:F

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13. The English translation of the advertisement at Page 6 ofAnnexure A-1 with regard to the post of Psychologist is as follows:

14. The careful reading of original advertisement which is invernacular language indicate that what was prescribed was, “InPsychology subject graduate/L.T./B.T. B.Ed.”. Use of Stroke betweengraduate and L.T./B.T. B.Ed. indicates that all were alternatequalification. The advertisement cannot be read to mean providing forgraduate in Psychology with L.T./B.T. B.Ed. as has been read by theHigh Court and contended by the respondent.

15. The words graduate/L.T./B.T. B.Ed. are all alternativequalification which are prefixed with word “In subject of Psychology”.A harmonious reading may mean that a person graduate in subject ofPsychology or L.T./B.T. B.Ed. with Psychology is eligible. When thepost is of Psychologist, both graduation with Psychology and trainingcertification i.e. L.T./B.T. B.Ed. have also to be with Psychology. Therespondents have wrongly interpreted the advertisement to mean thatthe person should possess both graduate with Psychology as well asL.T./B.T. B.Ed. which on the face of it does not appear to be correct.

16. Present is a case where appellant was called to appear inwritten examination and interview and his name was included in themerit list. It was only at the time of verification of the certificate he wasdenied the appointment on the ground that he does not fulfill thequalification as advertised, whereas he fulfilled the advertised qualification.

17. There is one more reason to accept the meaning ofadvertisement as noticed above. In advertisement, with regard to variousqualifications, words “;k” (or) “lkFk” (with), “vFkok” (either) and stroke‘(/)’ have been used. The appointing authority is well aware of the A

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Ameaning of stroke ‘(/)’, word “or”, “either” and “with” which has beenfrequently used in the qualifications which is apparent from theadvertisement i.e. Annexure A-1. The Appointing Authority used word‘with’ “lkFk”, when it wanted both the qualifications together. Whereverstroke ‘(/)’ has been used it was used when either of the qualificationswere indicated. The advertisement Annexure A-1 contains qualificationsBfor various posts and in several qualifications stroke (/) has been used.A look into those qualifications clearly indicate that stroke (/) was usedin the other qualifications denoting one or either qualification. It is usefulto extract some qualifications where stroke (/) was used apart fromqualification prescribed for the post of Psychologist. The use of strokeC(/) in the qualifications at Item No. 5 - Grah Mother, Item No. 6 –Karamshalal Prashikshak Foundary Shop / Black Smith Shop, Item No.11– Sewing Trainer, Item No. 16 – Music Teacher and Item No. 17 –Stitching Trainer are extracted as below:- D

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ASHISH KUMAR v. THE STATE OF UTTAR PRADESH & ORS.[ASHOK BHUSHAN, J.]

A perusal of the above qualifications clearly indicated that stroke(/) was used regarding qualifications, in alternative, i.e., one or either. Inabove view of the matter, we are of the view that the use of stroke (/)between Graduate / L.T. / B.T. B.Ed. were in the same line meaningthereby one or either. It is relevant to notice that before the aforesaidqualifications, the words “in Psychology subject” has been used as prefix,which clearly means that all the alternative qualifications were requiredto have with Psychology subject i.e. Graduation with Psychology/L.T./B.T. B.Ed. in the subject of Psychology. Hence, all the three i.e.Graduation, L.T., B.T. B.Ed. has to be in Psychology subject. Thosepersons who have done L.T./B.T. B.Ed. with Psychology subject areeligible like person graduated with Psychology, which is the plain andsimple meaning of the advertisement which has been missed by theState as well as the High Court.

18. The Division Bench in support of its view has interpreted theadvertisement in the following manner:- “.....Even otherwise, if the interpretation of the learned counselfor the appellant is taken as correct, it would mean that therewill be a different set of candidates namely, one who possessB.Ed. degree with the subject Psychology and the others whoare not B.A. with Psychology, but if they are B.Ed. or possessL.T./B.T. certificates, they would be entitled for appointment.”

The above view of the Division Bench that accepting theinterpretation of appellant would mean that there is different set ofcandidates namely one who possess B.Ed. Degree with the subjectPsychology and the others who are not B.A. with Psychology, but if C

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Athey are B.Ed. or possess L.T./B.T. certificates, they would be entitledfor appointment. The above view does not support the interpretation,which we have put on the qualifications mentioned for the Psychologisti.e. Graduate L.T./B.T. B.Ed. were prefixed with the “in the subject ofPsychology”. Thus, there is no question of there being different set ofcandidates. All candidates, who have Psychology as their subject ofBGraduation/L.T./B.T. B.Ed. were eligible for the post and they all formone class, i.e. those, who have studied Psychology. Thus, the view ofthe High Court cannot be accepted.

19. In the counter affidavit filed in this court also the saidqualifications are being read by the respondent as graduate in PsychologyCwith L.T./B.T. B.Ed. 1991 Rules have been filed as Annexure P-1 alongwith the rejoinder affidavit of the appellant. It is relevant to note that inSchedule to the Rules, the post of Psychologist has been referred to atpage 166; it is relevant to quote the qualification mentioned in the Scheduleto the 1991 Rules, which is to the following effect:

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20. The above rules clearly indicate that qualification forPsychologist is M.A. in Psychology. There is no other column in whichPsychologist can be read in the entire rule. The B.Ed. is a preferentialqualification and essential qualification is only M.A. in Psychologyaccording to 1991 Rules. It is relevant to note that although learnedGSingle Judge has referred to 1991 Rules but he observed that 1991 ruleslays down the qualification as trained graduate along with L.T./B.T. B.Ed.,the above observations of learned Single Judge are not sustainable inview of the qualification as prescribed in 1991 Rules as extracted above.

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21. In the counter affidavit filed in this court by the state, 1991rules have been accepted to be the relevant rules regulating therecruitment as has been noted in the Paragraph Xiii extracted above.The qualification prescribed in the Rules does not provide for L.T./B.T.B.Ed. as essential qualification. Thus non-possession of L.T./B.T. B.Ed.does not make him disqualified for the post as per Statutory Rules of1991. Appellant is post-graduate in psychology and thus, also fulfill thequalification prescribed in the 1991 Rules. The respondent in counteraffidavit had themselves come with the case that the appointment has tobe made in accordance with the statutory rules. When under the statutoryrules, 1991, appellant fulfill the qualification; there is no occasion to denyappointment to him.

22. Any part of the advertisement which is contrary to the statutoryrules has to give way to the statutory prescription. Thus, looking to thequalification prescribed in the statutory rules, appellant fulfills thequalification and after being selected for the post denying appointmentto him is arbitrary and illegal. It is well settled that when there is variancein the advertisement and in the statutory rules, it is statutory rules whichtake precedence. In this context, reference is made in judgment of thisCourt in the case of Malik Mazhar Sultan & Anr. Vs. U.P. PublicService Commission & Ors., 2006 (9) SCC 507. Paragraph 21 of thejudgment lays down above proposition which is to the following effect:

“21. The present controversy has arisen as the advertisementissued by PSC stated that the candidates who were withinthe age on 01.07.2001 and 01.07.2002 shall be treated withinage for the examination. Undoubtedly, the excludedcandidates were of eligible age as per the advertisementsbut the recruitment to the service can only be made inaccordance with the Rules and the error, if any, in theadvertisement cannot override the Rules and create a rightin favour of a candidate if otherwise not eligible accordingto the Rules. The relaxation of age can be granted only ofpermissible under the Rules and not on the basis of theadvertisement. If the interpretation of the Rules by PSC whenit issued the advertisement was erroneous, no right canaccrue on basis thereof. Therefore, the answer to the questionwould turn upon the interpretation of the Rules.”

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A23.It has also come on the record that although the post ofPsychologist was declared as dead cadre by the Government Orderdated 09.05.2008, but the posts were subsequently revived by anotherGovernment Order dated 17.08.2010. Reference of 2009 Rules, namely,Uttar Pradesh Social Welfare Department of Teacher Service Rule,2009, has been made which may have no relevance with regard to issueBin the present case since the appointment in the present case was madein pursuance of the 1991 Rules and advertisement was dated 30.08.2001.The appellant after being selected for the post of Psychologist was illegallydenied issuance of appointment letter on wrong interpretation of theadvertisement and the rules, hence, the appellant has made out a caseCfor issuing a direction to appoint him on the post of Psychologist.

24. We, thus, direct the respondents to issue an appointment orderto the appellant in pursuance of his selection against the advertisementdated 30.08.2001 on the post of Psychologist within a period of twomonths from the date, copy of this Order is produced before theDrespondents.

25. The judgments of the High Court are set aside and the appealsare allowed accordingly.

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Kalpana K. Tripathy Appeals allowed.

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