# Akash Dubey v. Electricity Service Commission U.P. Power Corp. & Anr

- **Citation:** (2024) 6 ILRA 244
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-06-07
- **Case number:** Writ-A No. 67528 of 2015
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akash-dubey-v-electricity-service-commission-u-p-power-corp-anr-52144
- **Pages:** 16

## Headnote

Law
-Mandamus
directing
respondents to allow the petitioner to be
considered for interview for the post of
Junior
Engineer
(Trainee)
in
UPPCL-
Petitioner holds the degree of Bachelor of
Technology in Civil Engineering - essential
qualification- Three years Diploma in
Electrical Engineering/Civil Engineering-
Petitioner qualified the written test- Was
not called for interview for not holding a
Diploma as required- no place in the
scheme of the advertisement to judge if
any other qualification possessed by a
candidate
is
higher
than
the
one
prescribed- terms of the advertisement
make the qualification of a Diploma in
Electrical/ Civil Engineering, essential to
maintain one's candidature for the post -
Holder of a superior degree in Engineering
would not be eligible- Petition dismissed.
(Para 10, 13, 14 and 18)

HELD:
To this Court's understanding, therefore, there is
no place in the scheme of the advertisement to
judge if any other qualification possessed by a
candidate is higher than the one prescribed.
(para 10)

The holding of the Full Bench leaves no manner
of doubt that given the terms of the
advertisement here, which we have held to be
exclusive about the stipulated qualification and
not one that speaks about a minimum or a
range of graded qualifications, the holder of a
degree in Engineering would not be eligible.
(Para 14).
6 All. Akash Dubey Vs. Electricity Service Commission U.P. Power Corp. & Anr.
245
In the present case, hardly any rule has been
brought to the notice of this Court, that may
lend itself to a particular construction, where the
holder of a degree in Engineering may be held
eligible to apply to the post of a Junior Engineer.
To the contrary, terms of the advertisement
make the qualification of a Diploma in Electrical/
Civil Engineering, essential to maintain one's
candidature for the post. About all the argument
based on inherent superiority of a degree in
Engineering, the answer of the Full Bench to the
issue clinches it. (Para 18)

Petition dismissed.

List of Cases cited:

## Text

_Characters 0–39,753 of 54,002. This is a partial read: ask again with offset=39753 for what follows._

244 INDIAN LAW REPORTS ALLAHABAD SERIES
that as it may, this Court is of considered
opinion that on the date the order impugned
was passed, the respondents could not have
made it. It is absolutely without jurisdiction
and manifestly illegal.

27. In the result, this petition
succeeds and stands allowed. The impugned
order dated 31.03.2021 passed by the District
Cane Officer, Meerut (annexed as Annexure
No. CA-1 to the counter affidavit dated
22.08.2023) is hereby quashed.

28. So far as the petitioner's claim
for
pension
and
death-cum-retirement
benefits on account of services rendered by
Avinash Yadav or her further claim to seek
compassionate appointment is concerned, the
respondents will be obliged to consider it,
subject to the petitioner producing a
succession certificate under Section 372 of
the Indian Succession Act, 1925 granted by
the Court of competent jurisdiction. The
Court, wherever the petitioner makes a
petition for the grant of a succession
certificate,
shall
expedite
proceedings,
considering
the
peculiar
facts
and
circumstances obtaining in this case.

29. There shall be no order as to
costs.

30. The Registrar (Compliance) is
directed to communicate this order to the
District Cane Officer, Meerut through the
learned Civil Judge (Senior Division)
Meerut.
----------
(2024) 6 ILRA 244
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.06.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.
Writ-A No. 67528 of 2015

Akash Dubey ...Petitioner
Versus
Electricity Service Commission U.P. Power
Corp. & Anr. ...Respondents

Counsel for the Petitioner:
Virendra Singh

Counsel for the Respondents:
C.S.C., Abhishek Srivastava, Ayank Mishra,
J.P. Pandey

Service
Law
-Mandamus
directing
respondents to allow the petitioner to be
considered for interview for the post of
Junior
Engineer
(Trainee)
in
UPPCL-
Petitioner holds the degree of Bachelor of
Technology in Civil Engineering - essential
qualification- Three years Diploma in
Electrical Engineering/Civil Engineering-
Petitioner qualified the written test- Was
not called for interview for not holding a
Diploma as required- no place in the
scheme of the advertisement to judge if
any other qualification possessed by a
candidate
is
higher
than
the
one
prescribed- terms of the advertisement
make the qualification of a Diploma in
Electrical/ Civil Engineering, essential to
maintain one's candidature for the post -
Holder of a superior degree in Engineering
would not be eligible- Petition dismissed.
(Para 10, 13, 14 and 18)

HELD:
To this Court's understanding, therefore, there is
no place in the scheme of the advertisement to
judge if any other qualification possessed by a
candidate is higher than the one prescribed.
(para 10)

The holding of the Full Bench leaves no manner
of doubt that given the terms of the
advertisement here, which we have held to be
exclusive about the stipulated qualification and
not one that speaks about a minimum or a
range of graded qualifications, the holder of a
degree in Engineering would not be eligible.
(Para 14).
6 All. Akash Dubey Vs. Electricity Service Commission U.P. Power Corp. & Anr.
245
In the present case, hardly any rule has been
brought to the notice of this Court, that may
lend itself to a particular construction, where the
holder of a degree in Engineering may be held
eligible to apply to the post of a Junior Engineer.
To the contrary, terms of the advertisement
make the qualification of a Diploma in Electrical/
Civil Engineering, essential to maintain one's
candidature for the post. About all the argument
based on inherent superiority of a degree in
Engineering, the answer of the Full Bench to the
issue clinches it. (Para 18)

Petition dismissed.

List of Cases cited:

1. Deepak Singh & ors. Vs State of U.P. & ors.,
2019 (7) ADJ 453 (FB)

2. Puneet Sharma & ors. Vs Himachal Pradesh
State Electricity Board Limited & anr., (2021) 16
SCC 340

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner has instituted this
writ petition praying that a mandamus be
issued,
directing
the
respondents
to
consider his case by allowing him to
participate in the interview for selection of
a Junior Engineer (Trainee), bearing Post
Code No.524, pursuant to Advertisement
No. 5/VSA/2015 J.E. issued by the
Electricity Service Commission, Uttar
Pradesh
Power
Corporation
Limited,
Lucknow
(for
short,
'the
Service
Commission'). He has further sought a
mandamus
to
the
effect
that
the
respondents be commanded to keep one
post of a Junior Engineer (Trainee), bearing
Post Code No.524, relative to the last
mentioned advertisement, unfilled.

2. The petitioner says that he
passed the Secondary School Examination2007 and the Senior Schools Certificate
Examination-2009, both conducted by the
Central Board of Secondary Examination.
He earned his degree of Bachelor of
Technology in Civil Engineering from the
National Institute of Technology, Patna in
the year 2013-14. The Service Commission
issued Advertisement No. 5/VSA/2015
J.E., inviting applications online from
eligible candidates for a consideration for
appointment as Junior Engineer (Trainee),
bearing Post Code Nos.521 and 524. The
essential qualifications mentioned in the
advertisement vide Clause 4 read:

 "4. Essential Qualification:

 (A)
Candidates
should
have
thorough knowledge of Hindi (Devnagri
script). If the candidate has not passed High
school or equivalent examination in Hindi,
he/she has to clear an exam conducted by
the Registrar, Department Examination
Govt. Of U.P. within 3 years of joining.

 (B) A candidate must have passed
(I) "Three years Diploma examination in
Electrical Engineering/ Civil Engineering
awarded by Pravidhik Shiksha Parishad,
Uttar Pradesh OR a Diploma, equivalent
thereto,
recognized
by
the
State
Government" OR (II) "Three years All
India Diploma Examination in Electrical
Engineering/Civil Engineering conducted
by the All India Council for Technical
Education (AICTE) Govt. of India" OR
(lII) "Diploma Examination in Electrical
Engineering/ Civil Engineering conducted
by any of the Universities in India
incorporated by an Act of the Central/State
legislature."

 Note:- (1) Candidates having
received
Diploma
through
Distance
Learning Education Programme are Not
Eligible to apply for the above posts. (2)
Candidates "having Diploma received on
246 INDIAN LAW REPORTS ALLAHABAD SERIES
the basis of length of service (without
passing the Diploma examination) are
also Not Eligible to apply for the above
posts."

3. The petitioner says that he
fulfilled all the necessary criteria and
eligibility
for
a
consideration
of
his
candidature for appointment to the post of
Junior Engineer (Trainee), bearing Post Code
No.524. It is his case that the selection
process involved a written test and interview.
The petitioner sat the written test, carrying
200 marks, comprising a total of 200
questions. The petitioner had applied online
furnishing
details
of
his
academic
qualifications. He was allowed to participate in
the written examination, evident from the fact
that he was issued with an admit card for the
purpose. It is averred by the petitioner that his
online application form for the post of a Junior
Engineer (Trainee), bearing Post Code No.524
shows that he had given details of the qualifying
examination, which he mentioned as a B.Tech.
Degree earned in the year 2014 from the
National Institute of Technology, Patna. It was
after verifying the said application that the
petitioner was allowed to participate in the
written test. The petitioner's result for the written
examination was declared on 28.10.2015 and he
figured amongst the candidates selected for Post
Code No.524 with Roll No.2030175. He was
shortlisted to participate in the interview. He
received a call letter dated 07.11.2015, requiring
him to appear at the Electricity (Trainee) Centre,
Sarojini Nagar, Lucknow on 18.11.2015 at 08:00
a.m.. The petitioner was asked to bring along all
the
original
records
of
his
academic
qualifications. The petitioner appeared at the
venue of interview, reporting within time on
18.11.2015 along with all original records of his
academic qualifications.

4. The candidates were given a
checklist by the officials of the Service
Commission, which was to be filled up by
candidates themselves. The petitioner was
also issued the checklist, which he duly
filled up. The said list was taken back by
the officials of the Service Commission,
filled up by him. The officials of the
Service Commission at this stage informed
the petitioner that since he had earned a
B.Tech. Degree, he cannot be allowed to
participate in the interview. The petitioner
pleads that the checklist, that he had
handed over duly filled up, was returned to
him unacknowledged. He was denied
interview. He was not communicated
anything
in
writing
by
the
Service
Commission why his candidature was not
regarded competent.

5. It is the petitioner's case that a
perusal of the qualifications carried in the
advertisement shows that the minimum
qualification required for the post of a
Junior Engineer (Trainee) is a Three year
Diploma in Electrical/ Civil Engineering,
but there is no bar that a candidate with a
higher and better qualification would not
have valid candidature, for the reason alone
that he does not hold a Diploma in Civil
Engineering. The petitioner says that he is
eligible,
being
possessed
of
better
qualifications than the minimum prescribed
in the advertisement, but denied interview,
and, therefore, opportunity to canvass his
candidature
finally
for
selection.
Aggrieved, he has instituted the present
writ petition for the reliefs claimed.

6. A notice of motion was issued
on 17.12.2015. A counter affidavit was
filed on behalf of both the respondents on
16.02.2016, to which the petitioner filed a
rejoinder on 20.05.2016. On 02.11.2023,
when the petition came up before the
Court,
the
parties
having
exchanged
affidavits, it was admitted to hearing,
6 All. Akash Dubey Vs. Electricity Service Commission U.P. Power Corp. & Anr.
247
which
proceeded
forthwith.
It
was
adjourned to the following day i.e.
03.11.2023. On the said day, Mr. Avneesh
Tripathi, learned Advocate was appointed
Amicus Curiae to assist the Court in the
matter. The matter was next heard on
07.12.2023 and adjourned for further
hearing to 08.12.2023. On 08.12.2023,
hearing was concluded and judgment
reserved.

7. Heard Mr. Virendra Singh,
learned Counsel for the petitioner, Mr.
Avneesh Tripathi, learned Amicus Curiae
and Mr. Abhishek Srivastava, learned
Counsel appearing on behalf of the
respondents.

8. The question involved in this
petition is if the degree in Engineering is to
be regarded as a higher qualification to the
Diploma
advertised
by
the
Service
Commission, an essential qualification for
selection
and
appointment
as
Junior
Engineer (Trainee) with the U.P. Power
Corporation Limited.

9. This Court must at once say that
we have not been referred to any statutory
rules
on
the
subject,
prescribing
qualifications for the post of a Junior
Engineer (Trainee) in the establishment of
the Power Corporation. What, therefore,
has to be fallen back upon as the
prescription for eligibility are the terms of
the advertisement. The advertisement in
question has been quoted in extenso. It
shows that the essential qualifications
advertised are a Three year Diploma
Examination in Electrical Engineering/
Civil
Engineering
awarded
by
the
Pravidhik Shiksha Parishad, Uttar Pradesh
or
a
Diploma,
equivalent
thereto,
recognized by the State Government, or a
Three year All India Diploma Examination
in
Electrical
Engineering/
Civil
Engineering, conducted by the All India
Council for Technical Education (AICTE)
Govt. of India, or a Diploma Examination
in Electrical Engineering/Civil Engineering
conducted by any of the Universities in
India incorporated by an Act of the Central/
State legislature. Paragraph No.4(B) of the
Advertisement,
which
mentions
these
essential qualifications, starts with the
proscription that "a candidate must have
passed", the above referred Diplomas from
one or the other institutions in the three set
of alternatives. The qualification of a
Diploma in Electrical or Civil Engineering
is not mentioned in that advertisement as
the
minimum
qualification.
Rather,
paragraph No.4 itself speaks about essential
qualification, of which paragraph No. 4(B)
is a part. If the advertisement had
mentioned the stipulated alternatives of a
Diploma in Civil or Electrical Engineering
as the minimum qualification, it would
have predicated a higher qualification as
well. The employment of the word
'minimum'
to
qualify
'qualification'
introduces an idea of comparison or
gradation. The word 'minimum' postulates
higher and still higher. The word 'essential'
excludes comparison of degree, called
anything else; higher or lower. The
advertisement here, as already remarked,
makes the Diploma in Civil or Electrical
Engineering
essential
qualification
to
maintain one's candidature.

10. To this Court's understanding,
therefore, there is no place in the scheme of
the advertisement to judge if any other
qualification possessed by a candidate is
higher than the one prescribed. This
question fell for consideration before a Full
Bench of this Court in Deepak Singh and
others v. State of U.P. and others, 2019
(7) ADJ 453 (FB). In Deepak Singh
248 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra), the Full Bench had before their
Lordships, the following questions referred
for consideration by a learned Single
Judge:

 "A. Whether a Degree in the field
in question is entitled to be viewed as a
higher qualification when compared to a
Diploma in that field?

 B. Whether the decisions in Alok
Kumar Mishra and Kartikey lay down the
correct position in law when they hold that
a Degree holder is excluded from the zone
of consideration for appointment as a
Junior Engineer?

 C. Whether a degree holder can
be held to be ineligible to participate in a
selection process for Junior Engineer in
light of the relevant statutory rules?

 D. Whether the exclusion of
degree
holders
from
the
zone
of
consideration would meet the tests as
propounded by the Supreme Court in State
of Uttarakhand v. Deep Chandra Tewari?"

11. Question Nos. A and B were
answered together by their Lordships after
considering a wealth of authority bearing
on the issue. It was held by the Full Bench
in Deepak Singh thus:

 "14. In view of the submissions
made at the bar and the Judgments relied
upon, the first two questions being
Question Nos. A & B in referring order
dated 29.11.2018 and the question referred
in WRIT - A No. 671 of 2009 are being
taken up together and a decision is to be
recorded as to whether a degree in the field
in question will be viewed as a higher
qualification when compared to that
diploma in that field.
 15. A diploma in engineering
essentially is designed to impart practical
aspect of the engineering and the mere
perusal of the syllabus reveals that the
Diploma in Engineering is aimed to equip
the candidates, who can cater to the
practical requirement of engineering with
emphasis on the practical works. In short, it
aims to train persons for execution of the
works and handling of equipments, etc.
whereas the graduates in Engineering are
taught with syllabus which provides
theoretical
training
in
the
field
of
Engineering with low emphasis on the
practical part of the engineering.

 16. In India, Diploma Course in
Engineering, is offered to the students and
is a short duration course with the focus on
training a person in a particular field. The
curriculum
includes
basic
theoretical
knowledge
and
extensive
practical
knowledge and the diploma can be
conferred by various institutes who may or
may not be affiliated to the University
Grants Commission (hereinafter referred to
'UGC') or All India Council for Technical
Education (hereinafter referred to 'AICTE').
The same can be offered even to students
after passing their Class-X Examination, in
contrast,
the
Bachelor
in
Technical
Education is offered to students after their
completion of Class-XII Examination. A
'degree' can be granted only by the
Institutes affiliated to UGC or AICTE. The
duration of the course is longer (at present
4 years) and the emphasis in the curriculum
is on academics. Thus, in India, focus and
the aim of the two streams of education is
entirely different with stress on extensive
practical knowledge in the case of diploma
holders and major emphasis on academic in
the case of degree holders. Thus, the
Diploma in Engineering and Degree in
Engineering cater to different situations
6 All. Akash Dubey Vs. Electricity Service Commission U.P. Power Corp. & Anr.
249
and, in view thereof, a degree in the field,
in question, cannot be viewed as a higher
qualification when compared to a diploma
in that field.

 17. Sri Ashok Khare, learned
Senior Counsel, in his usual eloquence, has
taken us through the various Judgments, he
has relied upon in State of Haryana v.
Abdul Gaffar Khan, 2006 (11) SCC 153
wherein the Apex Court was confronted
with the selection to the post of Unani
Dispenser
wherein
the
educational
qualification prescribed was:

 (i) Unani Dispenser from any
recognised University/Institution or Board
or Faculty of Indian System of Medicine
established by law in India or Up-Vaidya
having the knowledge of Urdu:

 (ii) Matric or its equivalent.

 (iii) Knowledge of Hindi and
English upto Matric standard.

 18. The respondents, in the said
matter,
possessed
a
qualification
of
Bachelor of Unani Medicine and Surgery
from Kanpur University and were denied
appointment for the reasons that they did
not possess the qualification of Dispenser
of Unani Medicine or Up-Vaidya from a
recognised
university.
The
Hon'ble
Supreme
Court
while
dealing
with
submissions recorded as under:

 ''We have perused the order
passed by the High Court. As rightly
pointed by the High Court and as per
Haryana
Ayurvedic/Homeopathic
and
Unani Technical Group (C) Service
Rules, 1997, they do not expressly
exclude the degree in Unani Medicine
and Surgery for the post of Unani
Dispenser. Admittedly, the respective
contesting respondents in these appeals
possess required qualifications from a
recognized
University/
Institution
or
Board and are thus, in our opinion,
eligible for appointment to the posts of
Unani Dispenser. A close scrutiny of the
advertisement issued does not anywhere
stipulate the diploma as the required
qualification. We, therefore, affirm the
order passed by the High Court and direct
the appellant-State of Haryana to appoint
the respective respondents to the posts of
Unani Dispenser within a period of one
month from the date of receipt of the
order from this Court or on production of
the same by the respective respondents
herein whichever is earlier. The appeals
are accordingly dismissed. There shall be
no order as to costs.''

 19. We are afraid that the said
Judgment has no application to the facts
of the present case inasmuch as in the
present
case
the
specified
required
qualification
was
''Diploma
in
Engineering'' and Degree Holders were
specifically excluded.

 23. The appellants, before the
Supreme Court, were holders of B.Tech.
degree in Electrical Engineering or
Bachelor's
degree
in
Electrical
Engineering were non-suited by the
Commission. The Apex Court relied upon
Rule 10 (a)(ii) which was as under:

 ''Notwithstanding
anything
contained in these rules or in the special
rules, the qualifications recognised by
executive orders or standing orders of
government as equivalent to a qualification
specified for a post in the special rules and
such of those higher qualifications which
presuppose the acquisition of the lower
250 INDIAN LAW REPORTS ALLAHABAD SERIES
qualification prescribed for the post shall
also be sufficient for the post.''

 On the basis of the said Rule 10
(a)(ii) of the Kerala State and Subordinate
Services Rules, 1958, the Apex Court held
as under:

 ''It is no doubt true, as stated by
the High Court that when a qualification
has been set out under the relevant rules,
the same cannot be in any manner whittled
down and a different qualification cannot
be adopted. The High Court is also justified
in stating that the higher qualification must
clearly
indicate
or
presuppose
the
acquisition of the lower qualification
prescribed for that post in order to attract
that part of the rule to the effect that such
of
those
higher
qualifications
which
presuppose the acquisition of the lower
qualifications prescribed for the post shall
also be sufficient for the post. If a person
has acquired higher qualifications in the
same
faculty,
such
qualification
can
certainly be stated to presuppose the
acquisition of the lower qualifications
prescribed for the post. In this case it may
not be necessary to seek far.

 Under the relevant rules, for the
post of assistant engineer, degree in
electrical engineering of Kerala University
or other equivalent qualification recognised
or equivalent thereto has been prescribed.
For a higher post when a direct recruitment
has to be held, the qualification that has to
be obtained, obviously gives an indication
that such qualification is definitely higher
qualification than what is prescribed for the
lower post, namely, the post of subengineer. In that view of the matter the
qualification
of
degree
in
electrical
engineering presupposes the acquisition of
the lower qualification of diploma in that
subject prescribed for the post, shall be
considered to be sufficient for that post.''

 The Court also noted that there
was no exclusion to candidates to possess a
higher qualification. The above referred
decision in Jyoti K.K. (supra) turned on the
provisions of Rule 10 (a)(ii). In the present
case, there is no equivalent Rule akin to
Rule 10(a)(ii). A perusal of the said Rule
10(a)(ii) clearly presupposes and provides
that the acquisition of a higher qualification
would presuppose the acquisition of the
lower qualifications prescribed for the post.
In the present case, there being no such
Rule, we are afraid that the presumption is
not available to the petitioners.

 24. The next case relied upon by
Sri Ashok Khare in Parvaiz Ahmad Parry
v. State of Jammu & Kashmir and others,
2016(1) ESC 54 (SC). In the said case, the
matter related to appointment to the post of
J & K Forest Service Range Officers,
Grade-I,
wherein
the
prescribed
qualification was B.Sc. (Forestry) or its
equivalent from any University recognised
by the Indian Council of Agricultural
Research (hereinafter referred to as the
'ICAR'). The appellants, in the said case,
had a qualification of B.Sc. with Forestry
as one of the major subjects and Master in
Forestry i.e. M.Sc. (Forestry) on the date
when he applied for the post in question,
the Apex Court allowed the appeal holding
as under:

 ''In our considered view, firstly, if
there was any ambiguity or vagueness
noticed in prescribing the qualification in
the advertisement, then it should have been
clarified by the authority concerned in the
advertisement itself. Secondly, if it was not
clarified, then benefit should have been
given to the candidate rather than to the
6 All. Akash Dubey Vs. Electricity Service Commission U.P. Power Corp. & Anr.
251
respondents. Thirdly, even assuming that
there was no ambiguity or/and any
vagueness yet we find that the appellant
was admittedly having B.Sc. degree with
Forestry as one of the major subjects in his
graduation and further he was also having
Masters degree in Forestry, i.e., M.Sc.
(Forestry). In the light of these facts, we are
of the view that the appellant was
possessed of the prescribed qualification to
apply for the post in question and his
application could not have been rejected
treating him to be an ineligible candidate
for not possessing prescribed qualification.

 In our view, if a candidate has
done B.Sc. in Forestry as one of the major
subjects and has also done Masters in the
Forestry, i.e., M.Sc.(Forestry) then in the
absence of any clarification on such issue,
the candidate possessing such higher
qualification has to be held to possess the
required qualification to apply for the post.
In fact, acquiring higher qualification in the
prescribed
subject
i.e.
Forestry
was
sufficient to hold that the appellant had
possessed the prescribed qualification. It
was coupled with the fact that Forestry was
one of the appellant's major subjects in
graduation, due to which he was able to do
his Masters in Forestry.''

 The said case has no applicability
to the facts of the present case inasmuch as
Diploma in Engineering and B.Tech in
Engineering are two different courses and
thus the ratio of the Judgment in the case of
Parvaiz Ahmad Parry v. State of Jammu &
Kashmir and others has no applicability to
the facts of the present case.

 25. Sri Ashok Khare, Senior
Counsel, has next relied upon a Full Bench
of Punjab and Haryana High Court in the
case of Manjit Singh v. State of Punjab and
others, 2011 (1) 115 (P&H) (FB). In the
said
case,
the
advertisement
for
appointment to the post of the Physical
Training
Instructor,
the
minimum
qualification
prescribed
was
C.P.Ed.
whereas the candidates possessing B.P.Ed
or M.P.Ed. were rejected. The Punjab and
Haryana Full Bench held as under:

 ''From the facts on record and
dictum of above noticed Judgments, it
emerges that the candidate possessing
higher qualification in the same line cannot
be
excluded
from
consideration
for
selection. It is a different matter that he/she
may not be entitled to any additional
weightage for higher qualification, but
cannot be denied consideration at par with
a
candidate
possessing
minimum
prescribed
qualification.
Denying
consideration to a candidate having better
and higher qualification in the same line
and discipline would definitely result in
breach of Articles 14 and 16 of the
Constitution of India.''

 Thus, higher qualification in
same line is the guiding factor. In the
present case, we have already held that
Diploma in Engineering is not in same line
as Graduate in Engineering

 26. The next case relied upon by
Sri Khare is the Judgment of the Apex
Court in the case of Zahoor Ahmad Rather
and others v. Sheikh Imtiyaz Ahmad and
others, (2019) 2 SCC 404. The Apex Court
was confronted with the question regarding
the appointment to the post of Technician
III wherein the qualification prescribed was
Matriculation with ITI in Electrical Trade
whereas the persons non-suited were
Diploma
Holders
in
Electrical
Engineering/Electronics
&
Communication. The Apex Court, after
252 INDIAN LAW REPORTS ALLAHABAD SERIES
discussing the various Judgments including
the Judgment of the Supreme Court in the
case of Jyoti K.K. (supra), held as under:

 ''While
prescribing
the
qualifications for a post, the State, as
employer, may legitimately bear in mind
several features including the nature of the
job, the aptitudes requisite for the efficient
discharge of duties, the functionality of a
qualification and the content of the course of
studies which leads up to the acquisition of a
qualification. The state is entrusted with the
authority to assess the needs of its public
services. Exigencies of administration, it is
trite law, fall within the domain of
administrative decision making. The state as
a public employer may well take into account
social perspectives that require the creation of
job opportunities across the societal structure.
All these are essentially matters of policy.
Judicial review must tread warily. That is
why the decision in Jyoti KK must be
understood in the context of a specific
statutory rule under which the holding of a
higher qualification which presupposes the
acquisition of a lower qualification was
considered to be sufficient for the post. It was
in the context of specific rule that the
decision in Jyoti KK turned.

 Ms
Wadia
sought
to
draw
sustenance from the fact that the holder of
an ITI certification can obtain lateral entry
to the diploma course. The point of the
matter, however, is that none of the
appellants fit the description of candidates
who had secured an ITI certification before
seeking a lateral entry to a diploma course.
Plainly, when an ITI with matric is
required, a person who does not hold that
qualification is not eligible.

 The submission based on Note
12, urged by Ms Wadia, cannot be
accepted.
The
stipulation
that
the
qualification
prescribed
is
the
bare
minimum
requirement
of
the
job
emphasises
that
it
is
an
essential
requirement, a threshold which cannot be
dispensed with. Under Note 12, the Board
is entitled to assign additional weightage
for a higher qualification. Whether such a
weightage should be assigned is a matter
for the Board to determine. The SSSB did
not assign an additional weightage 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 no vested right to
assert that the Board must as a mandate
assign an additional weightage to a higher
qualification. Whether to do so or not is a
matter for the Board to determine. All that
Note 12 postulates is that the mere possession
of the prescribed qualification will not entitle
a candidate to be called for the written test or
interview. The Board may shortlist among
eligible candidates by granting a weightage to
a higher qualification in the relevant line or
discipline. But the words ''as may be decided
by the Board'' in Note 12 indicate that the
Board is vested with a discretion in pursuance
of an enabling power which it may or may
not exercise.''

 34. Thus, our answer to the first two
questions, is clear that a degree in the field in
question, cannot be viewed as a higher
qualification compared to Diploma in that
field and that the Judgment in the case of Alok
Kumar Mishra v. State of U.P. and Kartikey v.
State of U.P. lay down the correct position in
law while holding that a degree holder is
excluded from the zone of consideration for
appointment of a Junior Engineer."

12. The Full Bench further on
observed:
6 All. Akash Dubey Vs. Electricity Service Commission U.P. Power Corp. & Anr.
253
 "36. In the case in hand, the only
qualification prescribed was ''Diploma in
Engineering'' and it was not the minimum
qualification, in fact, the State, as an
employer, specifically excluded ''Graduate
in Engineering''.

 This aspect of the matter has been
duly adverted to by the Hon'ble Supreme
Court in Zahoor Ahmad Rather and others
v. Sheikh Imtiyaz Ahmad and others
wherein the Apex Court held as under:

 27.
While
prescribing
the
qualifications for a post, the State, as
employer, may legitimately bear in mind
several features including the nature of the
job, the aptitudes requisite for the efficient
discharge of duties, the functionality of a
qualification and the content of the course
of studies which leads up to the acquisition
of a qualification. The state is entrusted
with the authority to assess the needs of its
public
services.
Exigencies
of
administration, it is trite law, fall within the
domain of administrative decision making.
The state as a public employer may well
take into account social perspectives that
require the creation of job opportunities
across the societal structure. All these are
essentially matters of policy. Judicial
review must tread warily. That is why the
decision in Jyoti K.K. must be understood
in the context of a specific statutory rule
under which the holding of a higher
qualification
which
presupposes
the
acquisition of a lower qualification was
considered to be sufficient for the post. It
was in the context of specific rule that the
decision in Jyoti K.K. Turned.

 28. Ms Wadia sought to draw
sustenance from the fact that the holder of
an ITI certification can obtain lateral entry
to the diploma course. The point of the
matter, however, is that none of the
appellants fit the description of candidates
who had secured an ITI certification before
seeking a lateral entry to a diploma course.
Plainly, when an ITI with Matric is
required, a person who does not hold that
qualification is not eligible.

 29. The submission based on
Note 12, urged by Ms Wadia, cannot be
accepted.
The
stipulation
that
the
qualification
prescribed
is
the
bare
minimum
requirement
of
the
job
emphasises
that
it
is
an
essential
requirement, a threshold which cannot be
dispensed with. Under Note 12, the Board
is entitled to assign additional weightage
for a higher qualification. Whether such a
weightage should be assigned is a matter
for the Board to determine. The SSSB did
not assign an additional weightage 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 no vested right
to assert that the Board must as a mandate
assign an additional weightage to a higher
qualification. Whether to do so or not is a
matter for the Board to determine. All that
Note 12 postulates is that the mere
possession of the prescribed qualification
will not entitle a candidate to be called for
the written test or interview. The Board
may shortlist among eligible candidates by
granting
a
weightage
to
a
higher
qualification in the relevant line or
discipline. But the words ''as may be
decided by the Board'' in Note 12 indicate
that the Board is vested with a discretion in
pursuance of an enabling power which it
may or may not exercise.''

 In subsequent decision of the
Hon'ble Supreme Court in Civil Appeal No.
254 INDIAN LAW REPORTS ALLAHABAD SERIES
4597 of 2019 (arising out of SLP (Civil)
Nos(s). 8494 of 2018) (The Maharashtra
Public Service Commission v. Sandeep
Shriram Warade and others) held as under :

 ''The essential qualifications for
appointment to a post are for the employer
to decide. The employer may prescribe
additional
or
desirable
qualifications,
including any grant of preference. It is the
employer who is best suited to decide the
requirements a candidate must possess
according to the needs of the employer and
the nature of work. The Court cannot lay
down the conditions of eligibility, much
less can it delve into the issue with regard
to desirable qualifications being at par with
the essential eligibility by an interpretive
re-writing of the advertisement. Questions
of equivalence will also fall outside the
domain of judicial review. If the language
of the advertisement and the rules are clear,
the Court cannot sit in judgment over the
same. If there is an ambiguity in the
advertisement or it is contrary to any rules
or law the matter has to go back to the
appointing
authority
after
appropriate
orders, to proceed in accordance with law.
In no case can the Court, in the garb of
judicial review, sit in the chair of the
appointing authority to decide what is best
for
the
employer
and
interpret
the
conditions of the advertisement contrary to
the plain language of the same.''

 37. In view of the above referred
Judgments, we have no hesitation in
holding that the State, as an employer, is
well equipped to decide the desirable
qualification or may prescribe additional
qualification
including
any
grant
of
preference. The Court cannot lay down the
conditions of eligibility much less, it can go
into the question of desirable qualification
being at par with the essential qualification.
 38. Now, coming to the third
question i.e. Question No. (C) that is
whether the degree holder can be held to be
ineligible to participate in a selection
process for Junior Engineer in the light of
the relevant statutory Rules.

 39. Sri Khare, in support of his
submissions made earlier, has contended
that in some of the statutory Rules,
Diploma in Engineering is specified as the
minimum qualification while with regard to
some of the Departments, Diploma in
Engineering
is
specified
as
required
qualification. Be that as it may we have
already held that Diploma in Engineering
being
distinct
from
Graduate
in
Engineering, no benefit flows from the
advertisement whether the Diploma in
Engineering is prescribed as a 'minimum
qualification' or 'required qualification'.

 40. Testing the said arguments as
raised by Sri Khare although on record no
Rules have been placed, however, in view
of the finding recorded by us that Diploma
in Engineering is not the same as Bachelor
in Engineering and also the finding
recorded by us that the State is well
equipped to prescribe the requisite required
qualification
keeping
in
view
the
requirement of posts for which the
advertisements are issued, we hold that
whether
Diploma
in
Engineering
is
specified as a minimum qualification or a
required
qualification,
Graduates
in
Engineering would not be entitled to be
considered and will be out of zone of
consideration unless a candidate possess
both the qualifications to explain it further
suppose
a
candidate
after
acquiring
Diploma
in
Engineering
also
passes
Graduation in Engineering he would be
eligible, in view of the fact that he has
Diploma in Engineering which is the
6 All. Akash Dubey Vs. Electricity Service Commission U.P. Power Corp. & Anr.
255
required qualification for applying to the
post and cannot be denied to participate
only because he has any qualification
additional to the prescribed qualification.
However, the State Government is free to
provide for equivalence as was done by
the Kerala State while incorporating Rule
10(a)(ii). Since there is nothing on record
in the present case to show that there was
any Rule or Directive of the State
Government to provide equivalence, it is
only logical to conclude that degree
holders are ineligible to participate in the
selection process for Junior Engineer in
the light of the specific provisions
incorporated under the advertisement in
question."

13. Their Lordships of the Full
Bench answered the questions on six
counts, in the following words:

 "Thus, our answers to the
questions posed before the Full Bench are
as under:

 (1) A Diploma in Engineering
and Degree in Engineering are two
distinct qualifications and a degree in the
field in question cannot be viewed as a
higher qualification when compared to
Diploma in that field.

 (2) The decision in the case of
Alok Kumar Mishra (supra) and Kartikey
(supra) laid down the correct position in
law holding that the degree holder is
excluded from the zone of consideration
for appointment as a Junior Engineer with
regard to the Diploma in question.

 (3) The degree holder is held to
be ineligible to participate in the selection
process of Junior Engineer in the light of
the Advertisement issued.
 (4) The exclusion of the degree
holders from the zone of consideration is in
consonance with the tests propounded by
the Supreme Court in case of State of
Uttarakhand and others v. Deep Chandra
Tewari and another.

 (5) The State Government, while
prescribing the essential qualifications or
desirable qualifications are best suited to
decide the requirements for selecting a
candidate for nature of work required by
the State Government and the Courts are
precluded from laying down the conditions
of eligibility. If the language in the Rules is
clear judicial review cannot be used to
decide what is best suited for the employer.

 (6) The 'O' level Diploma granted
by NIELIT is not equivalent to Post
Graduate
Diploma
in
Computer
Application and there is no presumption
available to hold that the PGDCA possess
the necessary qualification as prescribed for
'O' level Diploma accorded by NIELIT."

14.