PUNEET SHARMA & ORS. ETC versus HIMACHAL PRADESH STATE ELECTRICITY BOARD LTD. & ANR. ETC. on 7 April 2021

1. Leave granted. With consent of counsel, the appeals and petitionwere heard finally.

2. Whether a degree in Electrical Engineering/Electrical andBElectronics Engineering is technically a higher qualification than a diplomain that discipline and, whether degree holders are eligible for appointmentto the post of Junior Engineer (Electrical) under the relevant recruitmentrules, is the issue that falls for decision in these appeals arising out of acommon judgment of the Himachal Pradesh High Court[1]. As is evident,Cthis issue is not novel and has an almost endemic tendency requiringjudicial attention, albeit in myriad and diverse contexts.

3. The Himachal Pradesh Staff Selection commission (“HPSSC”hereafter), acting on the requisition sent by the Himachal Pradesh StateElectricity Board Ltd., (“HPSEB” hereafter) advertised 222 posts ofJunior Engineer (Electrical- hereafter referred to as “JE”) on 27.06.2018.DDegree-holders in the concerned discipline applied for the post; afterqualifying the written examination, they were called for verification ofdocuments but the final result was not declared. They approached theHigh Court in writ proceedings, claiming that since they possessededucational qualifications that were higher than the prescribed minimumE(and advertised) qualifications, they could not be denied consideration.The diploma holders opposed this claim, and argued that that thequalifications possessed by degree holders was neither higher nor canbe considered in teeth of the recruitment rules as also on the basis of theadvertisement issued by the Himachal Pradesh Staff SelectionCommission. The HPSEB adopted a neutral position; however, itFhighlighted that per the applicable regulations, the minimum essentialqualification provided for recruitment to the post of Junior Engineer (Elect.)was “matriculation with Diploma in Electrical/ Electronics/Electronics and Communication/ Computer Science from therecognized Institution/ Board/University duly recognized by theCentral or State Government”. HPSEB further stated that the HPSSCGcould not traverse beyond the regulations, and was bound to makerecruitments in accordance with them. The HPSSC, which issued the 1 In CWP No. 138/2020, CWPOA No. 3601/2019 and CWPOA No. 3633/2019 filed bythe degree-holders (hereafter ‘degree-holders’) claiming the right of consideration, andCWPOA No. 6534/2019 and CWPOA No. 6252/2020 have been filed by theHdiploma-holders (“diploma-holder”) opposing the claim of the degree-holders.

advertisement and conducted the selection, opposed the petitions andasserted that degree holders could not be considered for recruitment.

4. By the impugned judgment, the High Court considered theparties’ submissions, the position in the recruitment rules, and variousdecisions of this court[2] besides its own decisions[3], and concluded that:

“40. It would be noticed that the Hon’ble Supreme Court hascategorically held that normal rule would be that candidatewith higher qualification is deemed to be fulfilled the lowerqualification prescribed for the post. But that higherqualification has to be in the same channel, which is not theposition in the present case. Therefore, the guiding factorwhile considering the case of higher qualification is that itmust be in the same line. The degree in engineering is not inthe same line as diploma in engineering and it, therefore,cannot be considered to be a higher qualification.

41. Judged in light of the aforesaid exposition of law, aDiploma in Engineering and Degree in Engineering are twodistinct qualifications and a degree in the field in questioncannot be viewed as a higher qualification when comparedto Diploma in that field.

Consequently, the degree holder petitioners cannot bepermitted to urge that they possess higher qualification whichwould meet the requirement of specific qualifications specifiedin the rules or advertisement.

42. In addition to the aforesaid, it would be noticed that therespondent- Electricity Board has itself not considered thedegree in Electrical Engineering/ Electrical & ElectronicsEngineering to be superior to the diploma and rather treated 2 Jyoti KK v Kerala Public Service Commission (2010) 15 SCC 596; State of Uttarakhandand others vs. Deep Chandra Tewari and another (2013) 15 SCC 557; State of Punjabv Anita {(2015) 2 SCC 170} Parvaiz Ahmad Parry v State of Jammu and Kashmir&Ors (2015) 17 SCC 709 Zahoor Ahmad Rather v Sheikh Imtiyaz Ahmad {(2019) 2SCC 404; Maharashtra Public Service Commission, v Sandeep Shriram Warade&ors2019 (6) SCC 362; Zonal Manager, Bank of India Zonal Office, Kochi &Ors v AarayaK. Babu &Anr (2019) 8 SCC 587

3 Himachal Pradesh Staff Selection Commission &Ors v Pawan Thakur 2019 (3) Shim.L.C. 1676; Bhupinder Sharma v State of HP & ors (CWP No. 161/2019); AvinashKoundalv Himachal Pradesh Staff Selection Commission (CWP No. 1155/2020)

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356SUPREME COURT REPORTS

Athese to be two separate and distinct qualifications and thatis why it vide notification dated 03.06.2020 has amended theRecruitment and Promotion Rules for the post of JuniorEngineer (Electrical/Junior Engineer (IT) Class -III (Non-Gazetted) in the following manner….”

BArguments of the degree holders

5. Ms. Kavita Wadia, appearing for the degree holder appellants,contended that the expression “minimum”[4] was deliberately used withoutany bar under the rules and did not prevent appointment of degree holdersto the post of JE (Elect.) in HPSEB, and that diploma was only a minimumCrequirement. This, she argued is established beyond doubt from Clause11 of the Rules for appointment to higher promotional post of AssistantEngineers (Elect.) where under 5% quota is provided for those whopossessing degree at the time of their appointment as JE (Elect.) and5% separately for those who acquired degree during their service as JE(Elect.) after their confirmation. She relies on the decision of this courtDin Govt of A.P. vs P. Dalip Kumar[5] which held that the expression‘minimum’ entitles the employer to choose a person with higherqualification. A minimum acts as a cut-off filter for the same, and doesnot debar recruitment of higher qualified candidates.

6. Ms. Wadia submits that the arguments of diploma holders, i.e.Ethat the “with” in the rules, is disjunctive (in column 7) - while providingthat the qualification stipulated would be “Minimum Matriculation withdiploma in electrical engineering/electrical & ElectronicsEngineering ...”-defies logic because if ‘with’ were disjunctive andexpression ‘minimum’ was used for making matriculation as a minimumFeducational requirement, then there was no need to use the expression“minimum” since to pursue the diploma course a candidate has to havepassed matriculation as is reflected in the requirements for admission todiploma courses in prospectuses of government colleges. In other words, 4 Occurring in the rules, (The HPSEB amendments in Column – 2, 7 & 10 of theRecruitment and Promotion regulations to the post of Junior Engineer (Elect.) NotifiedGby notification No. HPSEC (SECTT) R&E/106-10/2006-93342-562 dated 13.12.2006and further amended by Notificaiton No. HPSEC (SECTT)R&E/106-10/2010-22792-991 dated 25.05.2010) which read as follows:

“Minimum matriculation with diploma in Electrical Engineering/ Electrical &Electronics Engineering from a recognized institution/ Board University dulyrecognized by the Central/State Government for JE (Elect.) post.”H5 1993(2)SCC 310 (Ref. Para 13 and 15)

contends Ms. Wadia, the minimum qualification would only bematriculation in that case, defeating the purpose of the rule, which isthat those diploma holders with matriculation would be considered aspossessing the minimum or threshold qualification. It is submitted that“minimum” was intentionally used without any bar under the Rulesconcerning the appointment of degree holders to the Post of JE (Elect.)in HPSEB, making diploma as only a minimum requirement. This isestablished beyond doubt from Clause 11 of the Rules for appointmentto higher promotional post of Assistant Engineers (Elect). The expression‘minimum’ entitles the employer to choose a person with higherqualification as ‘minimum’ acts as a cut off filter for the same and doesnot debar recruitment of those who are higher qualified.

7. It is also argued that the term “with” in Clause 7, (reproducedabove) is adjunctive in the said group of words, since it adds to themeaning of a sentence but when removed, makes no harm to its grammar.As a noun, an adjunctive joins two components of same weight such asco-ordinating conjunctions. It is further urged that, the decision in A.KRaghumani Singh & ors v. Gopal Chandra Nath & Ors[6] is inapplicablesince the issue there was whether experience required with thequalification equivalent to degree was subsequent to attaining the degreeor prior to it. To have held that the experience was to be attained afteracquiring the degree would have led to “with” being read as “subsequentto”. Further, this court held that “with” has to be contextually interpretedand was to be a disjunctive in the context of the said rule. It is argued,that in the present case, if the term were to be interpreted contextuallyto mean that the diploma would not be a minimum while matriculationwould be, - a construction that renders the expression ‘minimum’ useless,for diploma cannot be pursued without matriculation and at the sametime renders otiose the co-related Clause 11(v). This is contrary topurposive interpretation of the Rules, which ought to apply to gather theintention of the lawmaker. The appellant relies on CHD V. UshaKheterpal Waie[7] where this court observed that so long as thequalification prescribed by the employer is reasonably relevant and hasa rational nexus with the function and duties attached to the post, andare not violative of the provisions of Constitution or the statute and Rules,it must be upheld. Counsel submitted that the impugned judgment fellinto error in distinguishing, and not following Jyoti K.K[8].

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A8. It was lastly argued that the High Court erred in applying thejudgment of this court in Zahoor Ahmad (supra) since it pertained toappointments to the Post of Technician III which is relatable more tofield jobs, and restricted the consideration of ‘ITI’ Certificate holdersfor the said Post to the exclusion of diploma holders. In the present case,the relevant post is a higher post of JE (Elect.) of which the promotionalBpost is that of AE (Elect.). Also, in Zahoor Ahmad (supra) no expressionviz “minimum” was used in the Rules and the same was mentioned in anote in the advertisement therein, which was interpreted by this court. Itwas lastly urged that it is not in dispute that the appointing authoritycannot defy the rules or make appointments and, or support a viewCcontrary to the governing and applicable rules. However, in the presentcase the applicable rules ought to be read meaningfully, purposively andin a way that is not destructive of the entire scheme and balance soughtto be maintained in the Rules, keeping in mind the needs of the posts andthe State as well as domiciles. It is submitted that the interpretation ofthe earlier rules and the 2020 Rules in Para 40 to 42 of the impugnedDorder is destructive and does complete violence to the intent of the rulemakers.

9. On behalf of the contesting respondents, i.e. the diploma holders,Mr. Maninder Singh, learned senior counsel requested this court not tointerfere with the well-reasoned judgment of the High Court. It is submittedEthat the expression “minimum” is used with the academic qualification,i.e. matriculation and not the essential technical qualification, viz. adiploma. A diploma in electrical engineering can be obtained after pursuinga three years course. That should be preceded by a matriculation orafter completing a two years study- after 10[th]standard in school.FTherefore, a candidate to be eligible should have obtained a diplomaafter matriculation or after 10+2.This clearly eliminated degree holdersfrom the zone of eligibility.

10. It was argued that the use of “with” between minimum“matriculation” and diploma operates as a disjunctive. It cannot be readGwith the word diploma. It is submitted that only diploma holders such asthe contesting respondents could be considered for selection; theirselections were finalized on 02.09.2020 and the select list was preparedby the Commission. Having fulfilled the eligibility conditions and aftergetting selected through a valid and legal selection process, the entirerecruitment process was valid. Accordingly, such of the contestingH

respondents who qualified in the exam and were successful deserved tobe appointed.

11. Learned counsel relied upon the relevant rules to submit thatdirect recruitments are made to select category of posts by the Board,i.e. the Sub-Station Attendant, Electrician and Lineman for whom theessential educational qualifications are matriculation with ITI. For thesecategories of posts, there was conscious change in the rules with effectfrom 03.05.2018 when the words “or any other higher qualificationin the same trade” were deleted. Thus, from 03.05.2018 diploma holderswere ineligible for consideration for the post of Sub-Station Attendant,Electrician and Lineman. Secondly, for the post of Junior Engineer(Electrical), the essential qualification – which is under challenge, isreserved only for diploma holders. Thirdly, direct recruitment is possiblefor Assistant Engineers with regular/full time degree in electrical orelectronic engineering or AMIE or those with full time computer scienceand electronics and electrical engineering or its equivalent. Therefore,diploma holders cannot be directly recruited either in the lower grade ofSub-Station Attendants with effect from 03.05.2018 or as AssistantEngineers.

12. It is pointed out that 15 government polytechnic colleges offerdiploma courses in Himachal Pradesh whereas only three governmentcolleges offer degree courses in electrical engineering. The student intakein the diploma course college is as much as 400, whereas the intake indegree courses in electrical engineering in government colleges is 170students. Keeping this in mind, if the degree holders were permitted tocompete with diploma holders, the latter would suffer severely and wouldbe disadvantaged.

13. It is submitted that a close look at the recruitment rules for theHPSEB would further reveal that even in respect of higher posts ofAssistant Engineer, degree holders are entitled to 36% direct recruitment;diploma holders are entitled to be promoted in a quota of 64%. Therelevant portions of the recruitment rules, it is submitted indicate thefollowing:

[(i) Junior Engineers/ Junior Engineer (Sub-station)/ JuniorEngineer (C/Room)/ Junior Engineer (Power House)/JuniorEngineer (Test)/ Junior Engineer (Installation)/ JuniorEngineer (Telephone)/Foreman in the trade concerned, who AB

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are Diploma Holder with 7 years’ service in the grade, to theextent of 40%

(ii) Junior Engineers/ Junior Engineer (Sub-station)/ JuniorEngineer (C/Room)/ Junior Engineer (Power House)/ JuniorEngineer (Test)/ Junior Engineer (Installation)/ JuniorEngineer (Telephone)/ Foreman in the trade concerned, i.e.persons who are ITI qualified having 12 years’ service in thetrade.

(b) Junior Engineers/ Junior Engineer (Sub-station)/ JuniorEngineer (C/Room)/ Junior Engineer (Power House)/ JuniorEngineer (Test)/ Junior Engineer (Installation)/ JuniorEngineer (Telephone)/ Foreman in the trade concerned, i.e.non – ITI holders with 15 years’ service in the grade (a) + (b)= 10%.

(iii) From amongst those persons who pass/acquire thequalification of AMIE (Section A & B) or who acquire Fulltime/Regular Degree in Electrical Engineering/ Electrical &Electronic Engineering/ Computer Science Engineering.Electronics & Communication Engineering & InformationTechnology in service after confirmation to service to the extentof 5%.

(iv) Drawing Staff

Circle Head Draftsman with diploma in Electrical Engineeringor Diploma Certificate of draftsmanship from a recognizedinstitute with 5 year service in the grade having which 10years’ service as Draftsman/ Circle Head Draughtsman andwith combined 15 years’ service in the Draftsman Cadre: 4%

(v) Before joining the service as JE who possess Regular/Full time degree in Electrical Engineering/ Electrical &Electronic Engineering/ Computer Sciences EngineeringElectronics and Communication Engineering & InformationTechnology from a recognised University approved by AICTE,Ex Servicemen who have the relevant qualificationequivalence to a recognised degree in Electrical Engineeringor Electrical & Electronic Engineering stream/ disciplinerecognized by Govt of India or person who possess AMIE

qualification in above stream/ discipline from Institute ofEngineers (India Calcutta) after confirmation of service =5%.]

14. It is submitted that the break-up of promotional quota shownwith that of the total promotional quota show that 59% is clearly set outfor diploma holders and those Junior Engineers having a degree, canapply in the 5% quota. This also implies that some degree holders can beappointed provided they also had a diploma. Reliance is placed uponcertain extracts of a seniority list, setting out names of nine individuals,who have both diploma and B. Tech /AMIE qualifications. It is submittedthat such individuals were recruited not on the basis of degreequalifications but rather because they held the requisite diplomaqualifications.

15. It is submitted furthermore that there is nothing in therecruitment rules, either express or implied, which permitted the stateauthorities to consider and process the candidature of those possessingdegrees in electrical engineering but not possessing diploma. It issubmitted that the impugned judgment quite correctly surmised that thedecision in Jyoti K.K. (supra) was no longer a binding authority in viewof the later judgment of this Court in Anita (supra) and Zahoor AhmadRather (supra). Those decisions held that the prescription of a minimumqualification does not (absent given compelling circumstances) permitcandidates possessing higher qualifications in the discipline, to apply andbe considered for appointment.

16. The HPSEB submits that the rule in question should be sointerpreted and applied to permit degree holders a chance at selection. Itis submitted that any interpretation of rules to exclude better qualifiedpersons is irrational and robs the employer the chance of choosing abetter qualified candidate. It is also argued that the post of Junior Engineer(Electrical) is technical and public interest demands that the interpretationof the rule extends consideration to someone holding degree.

17. Counsel for the HSEB argued that it is the inherent right ofthe employer to seek out better qualified individuals for public appointment;furthermore equivalence of qualification is not a matter for the courts todetermine. HSEB argued that the High Court in the present case decidedthat a degree is not a better qualification than a diploma, without anyexpert view and contrary to settled law. It further argued that the AB

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Anotification dated 03.06.2020 is an outcome of an attempt to rationalizethe recruitment norms throughout the State Government for technicalposts in all departments and is an outcome of an exercise beginning inthe year 2019 and has nothing to do with the present litigation, and thatnotification is applicable prospectively. It cannot, at any rate be challengedbefore this court for the first time merely on the ground that an erroneousBinterpretation has been taken qua the said notification by the High Court.

Analysis and Conclusions:

18. The relevant rules stipulating essential qualifications for thepost of JE, were framed and brought into force on 13.12.2006; theyCrepealed the then existing rules framed by HPSEB in 1996. Thenotification to the extent it is relevant is extracted below:

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19. On 12.01.2007, the All-India Council for Technical Education(AICTE) prescribed that a student acquires a diploma in EngineeringGthrough a minimum of 3 years of institutional study (after 10+2 SecondaryExamination). Diploma holders were to be academically equivalent tostudents who passed the first year of the 4 year engineering degreeprogramme. On 24.05.2010 by Clause 11 the Recruitment and PromotionRegulations applicable to HPSEB were amended; they provided forHessential qualifications for promotion from the post of Junior Engineer (Electrical) to the post of Assistant Engineer (Electrical). Effective from21.06.2012, the rules of recruitment and regulations were amended- interalia, to the cadre of Assistant Engineer, by HPSEB providing two distinctquotas in the promotion quota (from amongst serving Junior Engineers).The existing quota of 6% available to those who acquired AMIE/Degreein Electrical Engineering qualifications etc. in servicewith minimum oneyears’ regular service after confirmation was reduced to 5% quota bythe amendment. In addition, the promotional quota to the post of AssistantEngineer, from the cadre of Junior Engineers (with which the presentdispute is concerned) was to the extent of 5% eligible for consideration.This quota was specifically identified as those who had completed theirengineering degree “before joining the service of Junior Engineer.”The relevant extract of amendments- of 2012 are set out below:

“ASSISTANT ENGINEER (E)

COL. 7 (Direct Recruitment)

“ASSISTANT ENGINEER (E)

COL. 7 (Direct Recruitment)

Minimum educational and other qualification required fordirect recruits.

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364SUPREME COURT REPORTS

AASSISTANT ENGINEER (E)

Col. No. 11 (iii) (iv) & (v)

In case of recruitment by promotion, deputation, transfer,grades from which promotion/deputation/transfer is to be made.

Existing Provision Amended Provisions B(iii) from amongst those persons who pass/acquire (iii) from amongst those persons who pass/acquire the the qualification of AMIE/Degree in Electrical qualification of AMIE (Section A & B) or who acquire Engineering/ Electrical & Electronic Engineering/ Full time/ Regular Degree in Electrical Engineering/ Computer Science Engineering, Electronic & Electrical &Electronic Engineering/ Computer Science Communication Engineering & Information Engineering. Electronics & Communication Technology in Service having minimum one year Engineering & Information Technology in service after regular service after confirmation to service confirmation to service. = 5% = 6%C(iv) Drawing Staff: (iv) Drawing Staff: Circle Head Draftsman possessing Diploma in Circle Head Draftsman possessing Diploma in Elect. Elect. Engineering or Diploma Certificate of Engineering or Diploma Certificate of Draftsmanship Draftsmanship from a recognized Institute having from a recognized Institute having 5 years’ service in 5 years’ service in the grade failing which 10 the grade failing which 10 years’ service as years’ service as Draftsman/Head Draftsman/Head Draughtsman/Circle Head Draughtsman/Circle Head Draughtsman and Draughtsman and failing both total 15 years services in failing both total 15 years services in the the Draftsman cadre. = 4% Draftsman cadre. = 3 % D(v) Before joining the service as JE who possess (v) Before joining the services as JE who possess degree in Electrical Engineering/ Electrical & Regular/ Full time degree in Electrical Engineering/ Electronic Engineering/ Computer Science Electrical & Electronic Engineering/ Computer Science Engineering. Electronics & Communication Engineering. Electronics & Communication Engineering Engineering & Information Technology from a & Information Technology from a recognized university recognized university including AMIE & having approved by the AICTE. Ex-servicemen who have the minimum one year regular service in the cadre of relevant qualification equivalence to a recognized JE after confirmation in the service. =5% Degree in Electrical Engineering or Electrical & Electronic Engineering Stream/ discipline recognized by Ethe Govt. of India or person who posses AMIE qualification in above stream/ discipline from Institute or Engineers (India Calcutta) after confirmation to service. =5%

Note: other terms and conditions shall remain unchanged.These amendments will be applicable with immediate effects.F20. By the advertisement in question, HPSEB invited applicationsfor direct recruitment to 222 vacancies in the cadre of JE (Electrical).Several candidates including the present appellants (who are degreeholders) applied. They were allowed to participate in the written testand many of them were even called for an interview and verification ofdocuments - sometime in April 2019. When matters stood thus, diplomaGholders preferred an application[9] before the State AdministrativeTribunal. By order dated 21.12.2018 the tribunal interdicted therecruitment process. As there was some conflict and confusion withrespect to the interpretation of the rules on the question i.e. whether H9 O.A. 7397 of 2018

H9 O.A. 7397 of 2018

degree holders could compete for the post of Junior Engineer, other writpetitions were preferred. The High Court[10] constituted an expertcommittee to examine all issues of equivalence of academic/technicalqualification and also whether persons possessing equal qualificationswere eligible for the advertised post. The committee by this report dated15.06.2019; influenced by this Court in Zahoor Ahmad Rather (supra)expressed the opinion that candidates possessing higher qualificationswere not eligible for consideration. Other writ petitions too were preferredbefore the High Court.

21. During pendency of the litigation, on 03.06.2020, the HPSEBfurther amended the Rules inserting a provision enabling candidates witha minimum matriculation with diploma in Computer Science Engineeringor Electronic & Communication Engineering as well as those withdegrees. The amendment reads as follows:

“Diploma or degree in Computer Science Engineering orElectronicEngineering & Communication Engineering orInformation Technology from recognised Institute/ Universityestablished by Law by the State/ Central Govt. OR AMIE fromInstitution of Engineers (India) (only those candidates whoare enrolled for AMIE with the Institute of Engineers (India)Kolkata will be permanent recognition up to 3105.2013)would be eligible.”

After taking into account the submission of the parties, the HighCourt by the impugned judgment, endorsed the opinion of the committeeand was of the view that only those with matriculation and holding diplomain the relevant subject are considered eligible for the post of JuniorEngineer. In W.P (C) 1028/2020, the Petitioners argue that the notificationof 03.06.2020 is arbitrary as it is prospective; in the alternative, theyclaim that it should be read as clarificatory and therefore always applicable.

22. The question whether the stipulation or prescription of theparticular academic qualification excludes an applicant who possesseswhat is termed as a higher qualification, from their candidature to theconcerned post has often arisen for consideration by this Court. In P.M.Latha & Anr. v. State Of Kerala & Ors.[11], the issue which arose forconsideration was whether, for primary class teachers, the prescribed 10 By an order dated 21.05.2019

11 (2003) 3 SCC 541

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A(and advertised) qualification Trained Teacher Certificates (TTC),included those who held B.Ed. degrees. This court was forthright inholding that the B.Ed. qualification could not be considered as a higherqualification than the TTC and that the TTC qualification was “given toteachers especially trained to teach small children “primary classes”,whereas those with B.Ed. were trained to impart education to studentsBof “higher classes”. A similar view was expressed in Yogesh Kumar& ors v. Government of NCT Delhi & Ors[12] vis-a-vis the samestipulation i.e., B.Ed. and TTC qualifications. The Court further held inYogesh Kumar (supra) that “a specialized training given to teachersfor teaching small children at primary level cannot be comparedCwith training given for awarding B.Ed. degree.”

23. The next judgment is Jyoti K.K. & Ors. v. Kerala PublicService Commission & Ors.[13], where the issue was whether degreeholders could be considered for the post of Sub-Engineer (Electrical) inthe Kerala State Electricity Board, which had prescribed diploma inDElectrical Engineering or SSLC or its equivalent as the eligibility criteria.This Court took into consideration Rule 10A and inter alia observed asfollows:

“6. Rule 10(a)(ii) reads as follows:

“10. (a)(ii) Notwithstanding anything contained in these RulesEor in the Special Rules, the qualifications recognised byexecutive orders or standing orders of Government asequivalent to a qualification specified for a post in the SpecialRules and such of those higher qualifications whichpresuppose the acquisition of the lower qualificationFprescribed for the post shall also be sufficient for the post.”

7. It is no doubt true, as stated by the High Court that when aqualification has been set out under the relevant Rules, thesame cannot be in any manner whittled down and a differentqualification cannot be adopted. The High Court is alsoGjustified in stating that the higher qualification must clearlyindicate or presuppose the acquisition of the lowerqualification prescribed for that post in order to attract thatpart of the Rule to the effect that such of those higher 12 (2003) 3 SCC 548H13 (2010) 15 SCC 596

qualifications which presuppose the acquisition of the lowerqualifications prescribed for the post shall also be sufficientfor the post. If a person has acquired higher qualificationsin the same Faculty, such qualifications can certainly be statedto presuppose the acquisition of the lower qualificationsprescribed for the post. In this case it may not be necessaryto seek far.

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 hasbeen prescribed. For a higher post when a direct recruitmenthas to be held, the qualification that has to be obtained,obviously gives an indication that such qualification isdefinitely higher qualification than what is prescribed for thelower post, namely, the post of Sub-Engineer. In that view ofthe matter the qualification of degree in Electrical Engineeringpresupposes the acquisition of the lower qualification ofdiploma in that subject prescribed for the post, shall beconsidered to be sufficient for that post.

9. In the event the Government is of the view that only diploma-holders should have applied to post of Sub-Engineers butnot all those who possess higher qualifications, either thisRule should have excluded in respect of candidates whopossess higher qualifications or the position should havebeen made clear that degree-holder shall not be eligible toapply for such post. When that position is not clear but onthe other hand the Rules do not disqualify per se the holdersof higher qualifications in the same Faculty, it becomes clearthat the Rule could be understood in an appropriate manneras stated above. In that view of the matter the order [JyothiK.K. v. Kerala Public Service Commission, Original PetitionNo. 9602 of 1998, order dated 30-3-2000 (Ker)] of the HighCourt cannot be sustained. In this case we are not concernedwith the question whether all those who possess suchqualifications could have applied or not. When statutory Ruleshave been published and those Rules are applicable, itpresupposes that everyone concerned with such appointmentswill be aware of such Rules or make himself aware of theRules before making appropriate applications. The High AB

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ACourt, therefore, is not justified in holding that recruitmentof the appellants would amount to fraud on the public.”

24. It is evident therefore, that this Court was of the opinion thatfor the post of Sub-Engineer (which can be termed as comparable to thepost of Junior Engineer in the present case), the Kerala State ElectricityBBoard felt that those possessing degree as well could be considered.This Court upheld the contention.

25. In Anita (supra) this court was concerned with JBT teachers,where the minimum qualification was two years’ junior basic teachers’training. Those with MSc, B.Ed. and MA qualifications were held ineligible,Clooking at the nature of the job i.e. teaching primary classes. Jyoti (supra)was distinguished because the appointing authority had the option ofconsidering appointment of persons with higher qualifications.

26. In Zahoor Ahmad Rather (supra) the post in question was“Technician-III” in the Power Development Department in the StateDof Jammu and Kashmir. The relevant stipulation with respect toqualification was “Matric with ITI in the relevant trade.” Theappellants held diploma in Electrical Engineering and were included inthe list of disqualified candidates. This resulted in litigation which ultimatelyculminated in the judgment of this court. This court held in its judgment[14]:

E“Under the above provisions as well as in the advertisementwhich was issued by the Board, every candidate must possessthe prescribed academic/professional/technical qualificationand must fulfil all other eligibility conditions. The prescribedqualifications for the post of Technician III in the PowerDevelopment Department is a Matric with ITI in the relevantFtrade. The Board at its 116th meeting took notice of the factthat in some districts, the interviews had been conducted forcandidates with a Diploma in Electrical Engineering while inother districts candidates with a diploma had not beenconsidered to be eligible for the post of Technician III.Moreover, candidates with an ITI in diverse trades had alsoGbeen interviewed for the post. The Board resolved at itsmeeting that only an ITI in the relevant trade, namely, theElectrical trade is the prescribed qualification specified inthe advertisement.”

27. Thereafter, the Court discussed the previous rulings in P.M.Latha, Jyoti K.K. and Anita (supra), then concluded that the candidatureof the diploma holders was correctly rejected and held as follows:

“26. We are in respectful agreement with the interpretationwhich has been placed on the judgment in Jyoti K.K. [JyotiK.K. v. Kerala Public Service Commission, (2010) 15 SCC 596: (2013) 3 SCC (L&S) 664] in the subsequent decisionin Anita [State of Punjab v. Anita, (2015) 2 SCC 170 : (2015)1 SCC (L&S) 329]. The decision in Jyoti K.K. [JyotiK.K. v. Kerala Public Service Commission, (2010) 15 SCC 596: (2013) 3 SCC (L&S) 664] turned on the provisions of Rule10(a)(ii). Absent such a rule, it would not be permissible todraw an inference that a higher qualification necessarilypresupposes the acquisition of another, albeit lower,qualification. The prescription of qualifications for a post isa matter of recruitment policy. The State as the employer isentitled to prescribe the qualifications as a condition ofeligibility. It is no part of the role or function of judicial reviewto expand upon the ambit of the prescribed qualifications.Similarly, equivalence of a qualification is not a matter whichcan be determined in exercise of the power of judicial review.Whether a particular qualification should or should not beregarded as equivalent is a matter for the State, as therecruiting authority, to determine. The decision in JyotiK.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010)15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on a specificstatutory rule under which the holding of a higherqualification could presuppose the acquisition of a lowerqualification. The absence of such a rule in the present casemakes a crucial difference to the ultimate outcome. In thisview of the matter, the Division Bench [ImtiyazAhmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017,decided on 12-10-2017 (J&K)] of the High Court was justifiedin reversing the judgment [Zahoor Ahmad Rather v. State ofJ&K, 2017 SCC OnLine J&K 936] of the learned Single Judgeand in coming to the conclusion that the appellants did notmeet the prescribed qualifications. We find no error in thedecision [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW)

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ANo. 135 of 2017, decided on 12-10-2017 (J&K)] of theDivision Bench.

27. 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 theBefficient discharge of duties, the functionality of aqualification and the content of the course of studies whichleads up to the acquisition of a qualification. The State isentrusted with the authority to assess the needs of its publicservices. Exigencies of administration, it is trite law, fall withinthe domain of administrative decision-making. The State as aCpublic employer may well take into account social perspectivesthat require the creation of job opportunities across thesocietal structure. All these are essentially matters of policy.Judicial review must tread warily. That is why the decisionin Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission,D(2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] must beunderstood in the context of a specific statutory rule underwhich the holding of a higher qualification which presupposesthe acquisition of a lower qualification was considered to besufficient for the post. It was in the context of specific rulethat the decision in Jyoti K.K. [Jyoti K.K. v. Kerala PublicEService Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S)664] turned.”

28. It would be also useful to notice a later judgment of this court,in Chief Manager, Punjab National Bank and Another v Anit KumarDas 2020 SCC On Line SC 897 where the issue was, whether for theFpost of peon in the appellant Bank, a degree holder (graduate) could beappointed, given the conscious decision of the employer, that only thosewho held 10+2 pass qualifications would be considered and those withgraduation qualification could not be considered. This court held that theappointment of the respondent, who was a graduate, after he suppressedGthe fact that he held a degree, and did not disclose it, was unsupportable.In this context, it was observed that as to what qualifications are applicableto what class of posts, is a matter of discretion to be exercised by theemployer, which the courts would be slow to interdict. This decision toosupports the conclusions in the present case, since the employer, HPSEBasserts that it considers degree holders eligible for appointment to theHpost of JE.

29. In the present case, what is evident from the rules is thatdirect recruitment to the post of JEs in HPSEB is to the extent of 72%.Undoubtedly, eligibility is amongst those who passed in matriculation or10+2 or its equivalent qualification. However, this Court is of the opinionthat the diploma holders’ contention that the minimum qualification ismatriculation and that the technical qualification is diploma is incorrect.The minimum qualification for the post cannot be deemed to be onlymatriculation but rather that only such of those matriculates, or 10+2pass students, who are diploma holders would be eligible. The term“with” in this category has to be read as conjunctive.

30. As far as the merits of the main question i.e. whether degreeholders too can apply for the post of JEs, a close examination of therules shows that a lion’s share of the posts at the JE level is set apart fordirect recruitment. However, when it is at the level of the higher post i.e.Assistant Engineer which is a promotional post direct recruitment is onlyto the extent of 36%. Of the balance 64%, various sub-quotas havebeen stipulated for feeder cadres; the largest percentage being for JuniorEngineers. For a long time, even on the date of the advertisement, twodistinct quotas (of 5%) had been set apart for promotion of JuniorEngineers holding degree qualifications in the concerned subject.

31. This Court is conscious that the issue in question is whetherthe minimum qualification of a diploma in electrical or electronicengineering or other prescribed qualifications includes a degree in thatdiscipline. However, the rules have to be considered as a whole. Soviewed, the two sub-quotas are:

(1) 5% enabling those diploma holders who acquire degreequalifications during service as Junior Engineers; and

(2) 5% enabling among those who hold degrees before joining asJunior Engineers;

32. The latter (2) conclusively establishes that what the rule makingauthority undoubtedly had in mind was that degree holders too couldcompete for the position of JEs as individuals holding equivalent or higherqualifications. If such interpretation were not given, there would beno meaning in the 5% sub-quota set apart for those who were degreeholders before joining as Junior Engineers - in terms of therecruitment rules as existing.

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A33. The court’s opinion is fortified by the latest amendment broughtabout on 03.06.2020. This clarifies beyond doubt that even for the postof Junior Engineers, those individuals holding higher qualifications areeligible to compete. In the opinion of this Court, though the amendingrules were brought into force prospectively, nevertheless, beingclarificatory, they apply to the recruitment that is the subject matter ofBthe present controversy. Such a position (i.e. clarificatory amendmentsoperative retroactively, despite their enforcement prospectively) has beenheld in several previous judgments of this court. In Zile Singh v. Stateof Haryana[15] this Court examined the various authorities on statutoryinterpretation and concluded: (SCC pp. 8-9, paras 13-14)C

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“13. It is a cardinal principle of construction that every statuteis prima facie prospective unless it is expressly or by necessaryimplication made to have a retrospective operation. But theRule in general is applicable where the object of the statute isto affect vested rights or to impose new burdens or to impairDexisting obligations. Unless there are words in the statutesufficient to show the intention of the legislature to affectexisting rights, it is deemed to be prospective only—‘novaconstitutiofuturisformamimponeredebet non praeteritis’—a newlaw ought to regulate what is to follow, not the past. (SeePrinciples of Statutory Interpretation by Justice G.P. Singh, 9thEEdn., 2004 at page 438.) It is not necessary that an expressprovision be made to make a statute retrospective and thepresumption against retrospectivity may be rebutted bynecessary implication especially in a case where the new law ismade to cure an acknowledged evil for the benefit of theFcommunity as a whole (ibid., page 440).

14. The presumption against retrospective operation is notapplicable to declaratory statutes.... In determining, therefore,the nature of the Act, regard must be had to the substancerather than to the form. If a new Act is ‘to explain’ an earlierGAct, it would be without object unless construed retrospectively.An explanatory Act is generally passed to supply an obviousomission or to clear up doubts as to the meaning of the previousAct. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation isgenerally intended.... An amending Act may be purelydeclaratory to clear a meaning of a provision of the principalAct which was already implicit. A clarificatory amendment ofthis nature will have retrospective effect (ibid., pp. 468-69).”

34. In Vijay v. State of Maharashtra[16], this court held as follows:“12. The appellant was elected in terms of the provisions of astatute. The right to be elected was created by a statute and,thus, can be taken away by a statute. It is now well settledthat when a literal reading of the provision giving retrospectiveeffect does not produce absurdity or anomaly, the same wouldnot be construed to be only prospective. The negation is nota rigid rule and varies with the intention and purport of thelegislature, but to apply it in such a case is a doctrine offairness. When a law is enacted for the benefit of thecommunity as a whole, even in the absence of a provision,the statute may be held to be retrospective in nature. Theappellant does not and cannot question the competence ofthe legislature in this behalf.

35. Likewise, in Manish Kumar v Union of India[17], it was held that:

“Declaratory, clarificatory or curative Statutes are allowedto hold sway in the past. The very nature of the said lawsinvolve the aspect of public interest which requires sovereignLegislature to remove defects, clarify aspects which createdoubt. The declaratory law again has the effect of thelegislative intention being made clear. It may not be appositein the case of these Statutes to paint them with the taint ofretrospectivity.”

36. It would also be relevant to notice that in the appeal, it hasbeen specifically averred that the HPSEB has been making contractualappointments from amongst degree holders in the cadre of JuniorEngineers, and that an order was issued upon the recommendation ofthe Screening Committee, which through its meeting held on 11.04.2018had cleared the regularization of 28 such candidates. These degree holders 16 (2006) 6 SCC 289

17 (2019) 8 SCC 416

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Aare equivalent to Junior Engineers, and had been working for periodsranging between 4 to 6 years. A copy of that order has been producedas Annexure P-10 in the Special Leave Petition.[18]

37. The considerations which weighed with this court in theprevious decisions i.e. P.M. Latha, Yogesh Kumar, Anita (Supra) wereBquite different from the facts of this case. This court’s conclusions thatthe prescription of a specific qualification, excluding what is generallyregarded as a higher qualification can apply to certain categories ofposts. Thus, in Latha and Yogesh Kumar as well as Anita (supra) thosepossessing degrees or post-graduation or B.Ed. degrees, were notconsidered eligible for the post of primary or junior teacher. In a similarCmanner, for “Technician-III” or lower post, the equivalent qualificationfor the post of Junior Engineer i.e. diploma holders were deemed tohave been excluded, in Zahoor Ahmed Rather (supra). This court iscognizant of the fact that in Anita as well as Zahoor (supra) thestipulation in Jyoti (supra) which enabled consideration of candidatesDwith higher qualifications was deemed to be a distinguishing ground. Nosuch stipulation exists in the HPSEB Rules. Yet, of material significanceis the fact that the higher post of Assistant Engineer (next in hierarchy toJunior Engineer) has nearly 2/3rds (64%) promotional quota. Amongstthese individuals, those who held degrees before appointment as a JuniorEngineers are entitled for consideration in a separate and distinct sub-Equota, provided they function as a Junior Engineer continuously for aprescribed period. This salient aspect cannot be overlooked; it only showsthe intent of the rule makers not to exclude degree holders fromconsideration for the lower post of Junior Engineers.

38. As noticed previously, in addition to the above considerations,Fan amendment to the rules was made on 03.06.2020 declaring that thosewith higher qualifications are also entitled to apply or be considered forappointment. This amendment was brought in to clear all doubts andcontroversies and, in that sense, the amending provisions should bedeemed to have been inserted from inception.G39. For the foregoing reasons, these batches of appeals by thedegree holders have to succeed. The respondent HPSEB is directed toprocess the candidature of all applicants, including the degree holderswho participated, and depending on the relative merits, proceed to issue H18 SLP (C) 10533-37 of 2020

the final selection list of all successful candidates, after holding interviews,etc. The impugned judgment is accordingly set aside; the appeals areallowed and writ petition is allowed partly, in the above terms, withoutorder on costs.

Devika Gujral

Appeals allowed and Writ Petition partly allowed.

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