# Alok Kumar Misra v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 331
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-02
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alok-kumar-misra-v-state-of-u-p-ors-43833
- **Pages:** 9

## Text

5 All. Alok Kumar Misra Vs State Of U.P. & Ors.

331

19. In view of the fact that no material had been placed by the opposite parties herein to satisfy
the Court that it was necessary to dispense with a formal inquiry in terms of proviso (b) appended
to Clause (2) of Article 311 of the Constitution of India, I am of the considered opinion that the
impugned order cannot be sustained and is liable to be set-aside.

20. Accordingly, the writ petition is allowed. The order of dismissal dated 28.6.1999 and the
appellate order dated 27.10.199 are hereby set-aside. The opposite parties are directed to allow the
petitioner to work on the post which he was holding prior to the order of dismissal and shall be paid
current salary and allowances as admissible to him. The period from the date of dismissal to the
date of reinstatement shall be considered as period rendered in service for the purposes of
pensionary benefits. It may be mentioned that the petitioner was dismissed in the year 1999 and
since then he is litigating for his rights. At the time of filing writ petition, the petitioner has
indicated his age as 32 years and as such at present, he would be around 59 years ie. at the very fag
end of his service. Considering all these aspects of the matter, the ends of justice would be secured
by directing the respondents to pay only 25% of the back wages within a period of six months
failing which petitioner shall be entitled for 9% interest from the date of order. The above order
shall be communicated by the petitioner to the authorities concerned at the earliest.

21. However, the above order will not preclude the respondents from initiating departmental
inquiry against the petitioner in respect of the charges levelled against him, if they so desire.

22. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.05.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No.- 6655 Of 2016
&
Connected With Other Cases

Alok Kumar Misra ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Kuldeep Pati Tripathi, Birendra Pratap Singh, Sameer Kalia

Counsel for Respondents:
C.S.C., Gaurav Mehrotra
332 INDIAN LAW REPORTS ALLAHABAD SERIES
The petitioners is the present writ are degree holders in Civil and Mechanical Engineering. The Commission
has issued an advertisement for holding a combined selection for the post of Junior Engineer in various fields
of Engineering such as Civil, Mechanical and Electrical for various departments and Corporations in the State
of U.P. The terms and conditions of recruitment to these posts are governed by the Rules made under the
proviso of Article 309 of the Constitution of India. The qualification prescribed for selection and appointment
on the post of Junior Engineer referred herein above is Diploma in the respective field of Engineering.

Learned counsel for the petitioner contended that relevant Rules of recruitment pertaining to the academic
qualifications prescribed as also the relevant provision of the advertisement relating thereto shows that the
same do not in any manner debar a person possessing a higher qualification from appearing in such selection.
A person possessing a higher qualification in the same stream is presumed to possess a lower qualification.

Court observed that relevant rules of recruitment in the facts and circumstances of the case, do not show in
any manner that a qualification other than that mentioned in the rules would also qualify and make a
candidate eligible for being considered for selection to the post in question as is borne out clearly from the
use of the words "A candidate for direct recruitment or promotion in the service must possess any of the
following conditions" in Rule 8 of the Rules. Therefore, to say that the rules do not debar a person possessing
a higher qualification from appearing in the selection in question is quite misconceived. The language of the
rules in the present case is very clear and the petitioners do not possess the qualification prescribed therein.

Court held that it can not be said that the petitioners herein are presumed to be possessing the lower
qualification of diploma in engineering as in order to possess a degree in engineering it is not necessary to
first of all pass or possess a diploma in engineering.

The writ petitions, the same are, accordingly, dismissed.

List of Cases Cited:

1. Jyoti K.K. And others Vs. Kerala Public Service Commission and others reported in 2010 (15)
SCC 596
2. State of Haryana and Another Vs. Abdul Gaffar Khan and another reported in 2006 (11) SCC 153
3. Jay Kumar Uttam Vs. State of Jammu and Kashmir and Ors.(SWP No. 2670 of 2001)
4. State of Punjab and Ors. Vs. Anita and Ors. 2015 (2) SCC 170
5. P.M. Latha and Anr. Vs. State of Kerla and Ors. 2003 (3) SCC 541
6. Yogesh Kumar and Ors. Vs. Government of NCT, Delhi and Ors. 2003 (3) SCC 548

(Delivered by Hon'ble Rajan Roy, J.)

1. The applicants of C. M. Application No. 40320 of 2016 and C. M. Application No. 40324
of 2016 are provided a right of hearing as interveners. The applications are disposed of.

2. Heard Shri Kuldeep Pati Tripathi, learned counsel for the petitioners, learned Standing
Counsel, Shri Gaurav Mehrotra, learned counsel for the Commission and Shri S. K. Kalia, learned
Senior Counsel for interveners/diploma holders.

3. All these writ petitions involve common question of facts and law, therefore, they have been
heard together and are being decided by a common judgment.
5 All. Alok Kumar Misra Vs State Of U.P. & Ors.

333

4. The petitioners herein are degree holders in Civil and Mechanical Engineering. The
Commission has issued an advertisement for holding a combined selection for the post of Junior
Engineer in various fields of Engineering such as Civil, Mechanical and Electrical for various
departments and Corporations in the State of U.P. The terms and conditions of recruitment to these
posts are governed by the Rules made under the proviso of Article 309 of the Constitution of India.
A copy of the said Rules pertaining to the Irrigation Department, Public Works Department etc. are
on record. The advertisement which has given rise to this controversy is also on record.

5. To cut the long story short the qualification prescribed for selection and appointment on the
post of Junior Engineer referred herein above is Diploma in the respective field of Engineering.

6. Rule 8 of the Uttar Pradesh Irrigation Department Civil Engineers Subordinate Service
Rules, 1992 is quoted herein below:-

"8. Academic Qualification- A candidate for direct recruitment or promotion to a post in
the Service must possess any of the following qualifications:

(a) Diploma in Civil Engineering awarded by an Institution or University established by
law in India.

Or

(b) Diploma in Civil Engineering awarded by the Board or Technical Education Uttar
Pradesh.

Or

(c) National Certificate in Civil Engineering awarded by All India Council of Technical
Education.

Or

(d) Three years Diploma in Civil and Rural Engineering by the Board of Technical
Education Uttar Pradesh.

7. Rule 8 of the Uttar Pradesh Public Works Department Junior Engineer (Civil) (Group-'C')
Service Rules, 2014 is quoted herein below:-

"8. A candidate for direct recruitment to the posts in the service must possess following
qualifications:
334 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) must have possessed the High School Examination of the Board of high school and
intermediate Education, Uttar Pradesh or an Examination recognized by the Government as
equivalent thereto.

(ii) Must possess three years Diploma in Civil Engineering from the Board of Technical
Education, Uttar Pradesh or a qualification recognised by the Government as equivalent thereto."

8. The advertisement for convenience prescribes the requisite qualifications for the posts in
question in a composite manner at one place referred as Schedule II which reads as under:-

in
dze
la0
in dk uke
vfuok;Z vgZrk@vf/kekuh vgZrk
1
voj vfHk;ark 1⁄4flfoy1⁄2
1⁄4d1⁄2 Hkkjr esa fof/k }kjk LFkkfir fo"ofo|ky; ;k
laLFkk }kjk iznRr flfoy vfHk;a=.k esa fMIyksek ;k]

1⁄4[k1⁄2 mRrj izns'k] izkfof/kd f'k{kk ifj"kn] }kjk iznRr
flfoy vfHk;a=.k esa fMIyksek] ;k

1⁄4x1⁄2 vf[ky Hkkjrh; izkfo/kd f'k{kk ifj"kn }kjk
flfoy vfHk;a=.k esa iznRr राष्ट्रीय प्रमाणपत्र या

1⁄4?k1⁄2 izkfof/kd f'k{kk ifj"kn] mRrj izns'k] }kjk flfoy
;k xzkeh.k vfHk;a=.k esa iznRr 03 o"kZ dk fMIyksekA

vf/kekuh vgZrk& izf'k{k.kkFkhZ ds :i esa ,d o"kZ dk
izf'k{k.k lQyrkiwoZd iwjk dj fy;k gksA

2
voj vfHk;ark 1⁄4flfoy1⁄2

1⁄4,d1⁄2 ek/;fed f'k{kk ifj"kn mRrj izns'k dh gkbZ
Ldwy ijh{kk ;k ljdkj }kjk ekU;rk izkIr mlds
led{k dksbZ ijh{kk vo'; mRrh.kZ fd;k gksA

1⁄4nks1⁄2 izkfof/kd f'k{kk ifj"kn] mRrj izns'k ls flfoy
vfHk;kaf=d esa rhu o"khZ; fMIyksek] ;k ljdkj }kjk
ekU;rk izkIr mlds led{k dksbZ vgZrk gksuh
vko';d gSA
3
voj vfHk;ark 1⁄4;kaf=d1⁄2
1⁄4d1⁄2 fdlh laLFkk ;k Hkkjr esa fof/k }kjk LFkkfir
fo"ofo|ky; }kjk ;kaf=d vfHk;a=.k esa fn;k x;k
fMIyksek ;k

1⁄4[k1⁄2 izkfof/kd f'k{kk ifj"kn] mRrj izns'k }kjk
;kaf=rd vfHk;a=.k esa fn;k x;k fMIyksek] ;k

1⁄4x1⁄2 vf[ky Hkkjrh; izkfo/kd f'k{kk ifj"kn }kjk
;kaf=d vfHk;a=.k esa fn;k x;k राष्ट्रीय प्रमाण&पत्र
4
voj vfHk;ark 1⁄4fo|qr1⁄2
1&izkfof/kd f'k{kk ifj"kn] mRrj izns'k] ls ;FkkfLFkfr
5 All. Alok Kumar Misra Vs State Of U.P. & Ors.

335

;kaf=dh ;k fo|qr vfHk;a=.k esa rhu o"kZ dk fMIyksek
;k fdlh laLFkk ls ljdkj }kjk mlds led{k
?kksf"kr ;FkkfLFkfr ;kfU=dh ;k fo|qr vfHk;a=.k esa
fMIyksekA
5
voj vfHk;ark 1⁄4flfoy1⁄2

1⁄4d1⁄2 Hkkjr esa fof/k }kjk LFkkfir fo"ofo|ky; ;k
laLFkk }kjk iznRr flfoy vfHk;a=.k esa fMIyksek ;k]

1⁄4[k1⁄2 mRrj izns'k] izkfof/kd f'k{kk ifj"kn] }kjk iznRr
flfoy vfHk;a=.k esa fMIyksek] ;k

1⁄4x1⁄2 vf[ky Hkkjrh; izkfo/kd f'k{kk ifj"kn }kjk
flfoy

vfHk;a=.k esa iznRr राष्ट्रीय प्रमाणपत्र] या

9. The petitioners herein relying upon the decisions of the Supreme Court rendered in the case
of Jyoti K.K. And others Vs. Kerala Public Service Commission and others reported in 2010 (15)
SCC 596, State of Haryana and Another Vs. Abdul Gaffar Khan and another reported in 2006
(11) SCC 153 and the judgment of the Jammu and Kashmir High Court rendered in the case of
Ajay Kumar Uttam Vs. State of Jammu and Kashmir and Ors.(SWP No. 2670 of 2001) have
contended that they being degree holders which is higher qualification in the same faculty/stream
of Engineering, are presupposed to possess the lower qualification of diploma, therefore, they are
fully eligible for being considered in the selection in question but the opposite parties even after
having allowed them to appear in the written examination and having called them for interview,
orally debarred them from appearing therein on the date of interview, which is apparently
unsustainable in the eyes of law.

10. It was contended by Shri Kuldeep Pati Tripathi, learned counsel for the petitioners that a
bare reading of relevant Rules of recruitment pertaining to the academic qualifications prescribed
as also the relevant provision of the advertisement relating thereto shows that the same do not in
any manner debar a person possessing a higher qualification from appearing in such selection. A
person possessing a higher qualification in the same stream is presumed to possess a lower
qualification. He invited the attention of the Court to Page 27 of the writ petition wherein under the
Right to Information Act the Public Information Officer of the Commission informed an applicant
that a degree holder was eligible for being considered for selection. It was also contended that in
previous years Degree Holders were permitted to appear in such examination for the post of Junior
Engineer held by the Subordinate Service Selection Commission as also the Public Service
Commission. The fact that out of 2700 persons selected 1600 were Diploma Holders and only 1100
are degree holders shows that Decree Holders were not being ousted completely from selection,
therefore, the apprehension raised by the opposite parties was misconceived.

11. Learned counsel for the petitioners laid emphasis on the fact that the Diploma Holders are
given lateral entry in the 2nd year of degree course in various universities.
336 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Shri Gaurav Mehrotra appearing for the Commission contended that the reliance placed
upon the judgments referred herein above by the petitioners is misconceived as the said judgments
were based upon the language used in the rules applicable therein. He also relied upon the
judgment of the Supreme Court reported in 2015 (2) SCC 170; State of Punjab and Ors. Vs. Anita
and Ors., 2003 (3) SCC 541; P.M. Latha and Anr. Vs. State of Kerla and Ors., and 2003 (3) SCC
548; Yogesh Kumar and Ors. Vs. Government of NCT, Delhi and Ors. to rebut the contentions
made on behalf of the petitioners and stated that the decisions relied upon by him have already been
considered in the aforesaid decisions.

13. Shri S.K. Kalia, learned Senior Counsel appearing for the interveners submitted that there
was no challenge to the relevant rules under which the required qualification for the posts in
question was prescribed nor was there any challenge to the advertisement issued. According to him
the pleadings in the writ petition were quite vague. No relief had been claimed to the effect that the
degree holders should be held to be eligible for being considered for selection for the post in
question. Relying upon very decisions which have already been referred by Shri Gaurav
Mehroratra he contended that the petitioners have absolutely no right to maintain this writ petition
nor of being considered for selection to the post in question. He invited the attention of the Court to
the relevant rules of recruitment governing the selection to show that the only qualifications
prescribed therein were those which were not possessed by the petitioners herein and there was no
scope for reading into rules something which was not provided.

14. It is not in dispute that the petitioners herein do not possess the qualifications prescribed in
the rules nor in the advertisement which govern the recruitment to the post of Junior Engineer
(Civil, Electrical and Mechanical) in various Departments/ Corporations etc. They allegedly
possess a higher qualification i.e. a Degree in Engineering which according to them presupposes
the possession of the lower qualification of Diploma. The basis of this argument appears to be two
judgments relied upon by them, however, on a reading of the said judgments specially the judgment
of the Supreme Court in the case of Jyoti K.K. (supra) reveals that the relevant rule in the said case
i.e. rule 10 (a)(ii) was as follows:-

"10. (a)(ii) Notwithstanding anything contained in these Rules or in the Special
Rules, the qualifications recognized 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 qualification prescribed for the post
shall also be sufficient for the post."

15. The rule itself prescribed that such of those higher qualifications which presuppose the
acquisition of the lower qualification prescribed for the post shall be sufficient for the post,
therefore, the observations made by the Supreme Court in the said judgment have to be read and
understood in the light of the language contained in the said Rule. The said judgment can not be
read and understood as having laid down a general proposition of law of universal application to
the effect that in every case where a person possesses a higher qualification than the one prescribed
he would automatically be eligible for selection to the post in question. In fact the Supreme Court
5 All. Alok Kumar Misra Vs State Of U.P. & Ors.

337
in a subsequent decision had the occasion to consider this aspect of the matter that is in the case of
Anita and others (supra) wherein after quoting the relevant extract of the judgment in Jyoti K.K.
(supra) it proceeded to repell a similar contention raised before it as has been raised herein by
observing "it is not possible for us to accept the aforesaid submission of the learned counsel for
the private respondents, because the statutory rules which were taken into consideration by this
Court while recording the aforesaid observations in Jyoti KK case, permitted the aforesaid
course". Thereafter, the Supreme Court quoted Rule 10 (a) (ii) which was considered in Jyoti K.K.
case (supra) and further opined "A perusal of the rule clearly reveals that the possession of
higher qualification would presuppose the acquisition of the lower qualification prescribed for
the posts. Insofar as the present controversy is concerned, there is no similar statutory provision
authorizing the appointment of persons with higher qualifications".

16. Considered against the aforesaid background, this Court finds on a perusal of the relevant
rule which have already been quoted herein above that no such provision analogous to rule 10 (a)
(ii) as was considered in Jyoti K.K. case (supra) exist in the present case.

17. The prescription of a qualification for a particular post is better left to those who are well
equipped to determine such matters, as, such prescription is dependent upon the nature of the duties
pertaining to a particular post. As held by the Supreme Court in P. M. Latha's case (supra)
"Whether for a particular post, the source of recruitment should be from the candidates with
TTC qualification or B.Ed. qualification, is a matter of recruitment policy." It is trite when a
qualification has been set out under the relevant rules, the same can not be in any manner whittled
down and different qualification cannot be adopted as has been held in Jyoti K.K. case (supra) itself
and in Anita and others (supra) as also in the case of Yogesh Kumar (supra) wherein it has been
observed that recruitment to public services should be held strictly in accordance with the terms of
advertisement and the recruitment rules, if any. Deviation from the rules allows entry to ineligible
persons and deprives many others who could have competed for the post. Merely because in the
past some deviation and departure was made in considering the B.Ed. candidates, the same can not
be allowed yet again. It is for the recruiting authorities to evolve a policy of recruitment and to
decide the source of recruitment i.e. Diploma Holders or Decree Holders.

18. As far as the reliance placed by learned counsel for the petitioner on the judgment of the
Supreme Court in Abdul Gaffar Khan's case (supra) is concerned, in the said case the relevant rule
did not prescribe "Diploma" as required qualification, a fact which has been specifically observed
in para 7 thereof. The court after a reading of the rule opined that the relevant rule did not expressly
exclude the degree in Unani Medicine and Surgery for the post of Unani Dispenser, therefore,
observations made in the said judgment are based on the rule which fell for consideration in the
said case. The rule which falls for consideration herein is of a different nature, as such, the said
judgment does not help the cause of the petitioner.

19. On a bare reading, relevant rules of recruitment in the facts and circumstances of the case,
do not show in any manner that a qualification other than that mentioned in the rules would also
qualify and make a candidate eligible for being considered for selection to the post in question as is
338 INDIAN LAW REPORTS ALLAHABAD SERIES
borne out clearly from the use of the words "A candidate for direct recruitment or promotion in the
service must possess any of the following conditions" in Rule 8 of the Rules. Therefore, to say that
the rules do not debar a person possessing a higher qualification from appearing in the selection in
question is quite misconceived. The language of the rules in the present case is very clear and the
petitioners do not possess the qualification prescribed therein. Moreover, the petitioners have not
challenged either the rules laying down such qualification or the advertisement itself. They have
approached this Court on a presumption based on a misplaced and misconceived reliance upon the
decision in the case of Jyoti K.K. (supra) and Abdul Gaffar (supra) which turned on their own
peculiar facts and the language of the rule considered therein which is quite different from the Rule
applicable herein, therefore, contentions of the learned counsel for the petitioners are not tenable in
law.

20. Furthermore, this issue has also been considered by the Uttrakhand High Court in Writ
Petition No. 643(SS) of 2015; Vikas Kumar and others Vs. State of Uttarakhand & others and
connected petitions and after considering all the judgments cited herein above a Single Judge
Bench of the said High Court has observed on 13.07.2015 as under:-

"But in the present controversy, a degree education in Civil, Mechanical or
Electrical Engineering, by no stretch of imagination, can be attributed to the effect that the
candidate had attained the diploma qualification in that stream because for taking admission in the
Bachelors Course does not envisage the attaining of the diploma qualification as a pre-requisite.
So, holding the diploma cannot be equated with holding of the degree in the engineering stream.
The exception can be made even in such situation if the rules of the recruitment contemplate to that
effect and it was the situation probably in the Jyoti K.K. and others case (supra) where Kerala
State and Sub-Ordinate Service Rules, 1956 had such provision, but here, in Uttarakhand, the
Rules have been enacted in 2003 and there is no such provision analogous to the Rules of Kerala.

That apart, if a degree holder in a particular stream will always exclude the diploma
holder in that stream then the scope to get employment for the diploma holders will always be very
very little if not closed altogether because where a degree and diploma holders both are permitted
to attend the same examination without any discrimination then in all probabilities, the degree
holders will always take lead as against the diploma holders. So, the opportunity to get a
government job will almost be closed to the diploma holders and in other words the persons who
are not capable enough to take the qualification of a degree and cannot afford the monetary
expenses to get their degree course, will always be deprived from the government job where the
diploma is the minimum qualification to make the candidate eligible for the post."

21. Having heard the learned counsel for the parties and perused the records, I do not find any
reason to differ from the proposition laid down in the said judgment and the reasoning given
therein which squarely apply to the facts of the present case also.
5 All. Khazan Singh Vs State Of U.P. & Ors.

339

22. Considering the facts of the case, it can not be said that the petitioners herein are presumed
to be possessing the lower qualification of diploma in engineering as in order to possess a degree in
engineering it is not necessary to first of all pass or possess a diploma in engineering.

23. Another co-ordinate Bench of this Court had the occasion to consider these very issues
while deciding Writ Petition No. 7012(SS) of 2001; Anoop Ratan Awasthi Vs. Public Service
Commission, Allahabad and one another and connected petition. Having gone through the said
judgment also, this Court is of the view that the reasoning given therein is applicable to the present
case also and supports the view taken by this Court as aforesaid.

24. For the reasons aforesaid, I do not find any merit in the writ petitions, the same are,
accordingly, dismissed. The interim order stands vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2016

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VINOD KUMAR SRIVASTAVA-III, J.

Criminal Misc. Writ Petition No.- 8026 Of 2016

Khazan Singh ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Mohit Singh

Counsel for Respondents:
G.A.

Present writ has been filed to quash the impugned order dated 16.10.2015 passed by the State Government.
Mandamus was also sought for restraining the respondent authorities not to arrest the petitioner or adopt any
coercive measure. An FIR was lodged on 22.09.2004 as Case Crime No.336 of 2004, under Sections 419, 420,
467, 468, 471 I.P.C. During the course of investigation, Section 120B I.P.C. and 13(2) of Prevention of
Corruption Act were also added and petitioner was also made an accused in the present case. The respondent
no.4 applied for sanction of prosecution of the petitioner for the offence in question from the competent
authority and the same was granted by it on 16.10.2015.

Petitioner counsel contented that order granting sanction is bad in the eyes of law as it is a result of nonapplication of mind, arbitrary and illegal as well as before granting sanction order no opportunity of hearing
was granted.