# Alok Shukla & Anr v. State of U.P. & Ors

- **Citation:** (2022) 4 ILRA 368
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-24
- **Case number:** Writ A No. 1984 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alok-shukla-anr-v-state-of-u-p-ors-48333
- **Pages:** 6

## Headnote

A. Service Law - Post of Mining Officer -
Qualification
-
Prescription
of
qualification
and
other
conditions
of
service - Policy matter - Judicial review -
Scope of interference - Possession of
higher qualification - Permissibility -
Held, prescription of qualifications and
other conditions of service pertains to the
field of policy and is within the exclusive
discretion and jurisdiction of the St. - The
policy decision has to be taken by the St.
Government for changing the academic
qualification for the post of Mining Officer
as well as Mining Inspector, which cannot
be judicially reviewed by this Court - High
Court
issued
direction
for
making
representation and taking decision on it.
(Para 15, 17 and 23)
Writ petition disposed of. (E-1)
4 All. Alok Shukla & Anr. Vs. State of U.P. & Ors.
369
List of Cases cited :-

## Text

368 INDIAN LAW REPORTS ALLAHABAD SERIES
employment in respect of which minimum
rates of wages have been fixed under this
Act, and includes, except in subsection (3)
of section 26,-
.

(ii) in any scheduled employment
under the control of any Government in
India in respect of which minimum rates
of wages have been fixed under this Act,
the person or authority appointed by such
Government for the supervision and
control of employees or where no person
or authority is so appointed, the head of
the department;

"".."

11. Thus it is safe to say that the
respondents,
who
have
engaged
the
petitioner in a scheduled employment for
which minimum wages are fixed, are
"employer" for all purposes under the Act
of 1948.

"Section 26: Exemptions and
exceptions:-

(1) The appropriate Government
may, subject to such conditions, if any, as
it may think fit to impose, direct that the
provisions of this Act shall not apply in
relation to the wages payable to disabled
employees.

"""""."

12. The Learned Standing Counsel has
failed to place on record any notification
issued under Section 26 of the Act of 1948
exempting the respondent department from
the application of the Act of 1948. In view
thereof, petitioner is entitled for the minimum
wages under the Minimum Wages Act, 1948.

13. Therefore, respondent No. 3
Regional Ayurvedic/Unani Officer, Bahraich
is directed to pay minimum wages to the
petitioner as notified under the Minimum
Wages Act, 1948 with regard to part-time
sweepers within a period of two months from
the date a certified copy of this order is
placed before him.

14. With the aforesaid, the writ petition
is allowed.
----------
(2022)04ILR A368
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No. 1984 of 2022

Alok Shukla & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Siddharth Khare, Sr. Advocate

Counsel for the Respondents:
C.S.C., Sri M.N. Singh, Sri Nisheeth Yadav

A. Service Law - Post of Mining Officer -
Qualification
-
Prescription
of
qualification
and
other
conditions
of
service - Policy matter - Judicial review -
Scope of interference - Possession of
higher qualification - Permissibility -
Held, prescription of qualifications and
other conditions of service pertains to the
field of policy and is within the exclusive
discretion and jurisdiction of the St. - The
policy decision has to be taken by the St.
Government for changing the academic
qualification for the post of Mining Officer
as well as Mining Inspector, which cannot
be judicially reviewed by this Court - High
Court
issued
direction
for
making
representation and taking decision on it.
(Para 15, 17 and 23)
Writ petition disposed of. (E-1)
4 All. Alok Shukla & Anr. Vs. State of U.P. & Ors.
369
List of Cases cited :-
1. Dr. R.K. Goyal Vs St. of U.P. & ors.; (1996)
11 SCC 658
2. WritA No. 25238 of 2016; Km. Pratima Gupta
Vs St. of U.P. & ors. decided on 09.01.2019
3. Writ A No. 24273 of 2018; Deepak Singh &
ors. Vs St. of U.P. & ors. (FB)
4.
P.U.
Joshi
&
ors.
Vs
Accountant
General,Ahmedabad & ors.; (2003) 2 SCC 632
5. Chandigarh Administration Vs Usha Kheterpal
Waie andothers; (2011) 9 SCC 645
6.
Vasavi
Engineering
CollegeParents
Association . Vs St. ofTelangana & Ors.; (2019)
7 SCC 172
7. Fertilizer Corporation Kamgar Union (Regd.),
Sindri Vs U.O.I.; (1981) 1 SCC 568
8. Directorate of Film Festivals & ors. Vs Gaurav
AshwinJain & ors.; (2007) 4 SCC 737
9. Yogesh Kumar & ors. Vs Government Of NTC
Delhi; (2003) 3 SCC 548.
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Siddharth Khare, learned
counsel for the petitioner, the learned
Standing Counsel for the State-respondent
nos.1 &2 and Mr. Nisheeth Yadav, learned
counsel for the respondent no.3.

2. This writ petition has been filed
interalia for the following reliefs:-

"(a) a writ, order or direction in
the nature of certiorari quashing the
advertisement dated 19.01.2022 insofar as
it excludes Post Graduate Degree in
Geology as a permissible qualification for
consideration for the post of Mines Officer.

Alternative,
direct
the
respondents to consider the grievance of
the petitioners for including Post Graduate
Degree in Geology for consideration for
the post of Mines Officer and B.Sc. in
Geology as an essential qualification for
consideration for the post of Mines
Inspector within a short period.

(b) A writ, order or direction in
the nature of mandamus commanding the
respondent authorities to treat a Post
Graduate
Degree
in
Geology
for
consideration for the post of Mines Officer
in Advertisement dated 19.01.2022.

(c) A writ, order or direction in
the nature of mandamus commanding the
respondent
authorities
to
treat
the
qualification of B.Sc. in Geology as an
essential qualification for consideration for
the post of Mines Inspector.

(d) A writ, order or direction in
the nature of mandamus commanding the
respondent
authorities
to
permit
the
petitioners to appear in the selection
proceeding for the post of Mines Officer
pursuance to the Advertisement dated
19.01.2022 after treating a Post Graduate
Degree in Geology as one of the required
qualification."

3. Brief facts of the case is that an
advertisement dated 19.01.2022 has been
issued
by
respondent
no.3-UP
PSC,
Prayagraj inviting applications for 16 posts
of Mining Officer. A requisition for 36
posts of Mining Inspector has also been
forwarded by the State Government for
selection and appointment. The service rule
governing the post of Mining Officer and
Mining Inspector is known as "the Uttar
Pradesh Geology and Mining Service
Rules, 1983 (for short "the Rules of 1983")
has been amended from time to time.

4. The required qualification for the
post of Mining Officer under the Rules of
1983 as well as in the advertisement as
issued by the commission is Degree in
Mining Engineering or Diploma in Mining
370 INDIAN LAW REPORTS ALLAHABAD SERIES
Engineering with one year experience.
Similarly, the required qualification for the
post of Mining Inspector as per the rules is
Diploma in mining engineering.

5.

Learned
counsel
for
the
petitioners submits that though the Rules
of 1983 have been amended from time to
time but the qualification required for
the post of Mining Officer and Mining
Inspector
has
remained
unchanged.
Despite the fact that the qualification of
post graduate degree in Geology, which
is possessed by the petitioners in the
present case is much higher than one
required under the Rules of 1983 as well
as
the
advertisement.
In
such
circumstances, the petitioners are not in
a position to apply in pursuance to the
impugned advertisement.

6. He further submits that the
qualification required for the post of
Mining Inspector, which is diploma in
Mining Engineering while B.Sc. in
Geology is higher qualification than
diploma, has also not been taken into
consideration.

7. Learned counsel for the petitioners
has pointed out that advertisement issued
by the different States wherein the essential
qualification required for the appointment
on the post of Mining Officer is post
graduate in Geology whereas for the post of
Mining Inspector is graduate degree in
Geology. Hence a representation in this
regard has been moved before the State
Government to include the aforesaid
degrees as essential qualification for the
post of Mining Officer and Mining
Inspector as such degree is higher than one
required as per the advertisement and the
Rules of 1983, but no decision has been
taken yet.

8. After arguing the matter at length
learned counsel for the petitioners has
confined his prayer to the extent that the
matter may be placed before the State
Government so that appropriate decision
may be taken in accordance with law.

9. On the other hand, Mr. Nisheeth
Yadav, learned counsel for the respondent
no.3-UPPSC as well as learned Additional
Standing Counsel opposed the submission
made by learned counsel for the petitioners
and submits that the issue with respect to
qualification for the said posts is a policy
matter and it is within the domain of the
State Government to take decision in this
respect. He has relied upon the judgment of
the Apex Court in the case of Dr. R.K.
Goyal vs. State of U.P. and Ors. reported
in (1996) 11 SCC 658.

10. He further submits that regarding
similar controversy, this Court in the case
of Km. Pratima Gupta vs. State of U.P. &
Ors. in Writ-A No.25238 of 2016 decided
on 09.01.2019 has held that undisputedly
the advertisement as well as the Rules of
1983 specified a degree of Mining
Engineering
or
Diploma
in
Mining
Engineering with one year experience for
the post of Mining Officer and similarly as
per rule, qualification for the post of
Mining Inspector is diploma in Mining
Engineering. Nothing could be placed
before the Court regarding any decision of
the State Government holding the degree
possessed by the petitioners to be equal to
that as required as per the advertisement
and the Rules of 1983.

11. Mr. Yadav, learned counsel for the
Commission further submits that there is no
statutory provision obligating either the
State or the Commission to consider any
degree equivalent to that possessed by the
4 All. Alok Shukla & Anr. Vs. State of U.P. & Ors.
371
petitioners, however, since the matter is a
policy matter, therefore, the same may be
placed before the State Government so that
appropriate decision may be taken in
accordance with law after calling for expert
opinion from the Commission.

12. I have considered the submissions
made by the parties as well as gone through
the entire materials brought on record.

13. Before coming to the merits of the
submissions made by the learned counsel
for the parties, it would be relevant to refer
that as per the Uttar Pradesh Geology and
Mining
Service
Rules,
1983,
the
qualification for the post of Mining Officer
is degree of Mining Engineering or
Diploma in Mining Engineering with one
year experience and for the post of Mining
Inspector
is
diploma
in
Mining
Engineering.

14. In the present case, it is no doubt
that
the
petitioners
possess
higher
qualification than that as required for the
aforesaid posts as per the rule but there is
no clarification/notification by the State
Government providing for equivalence of
any other qualification for the post of
Mining Officer and Mining Inspector. It is
the State Government which has the
powers
to
prescribe
the
requisite
qualification required for the efficient
discharge of duties for the post for which
the advertisement is issued. A Full Bench
of this Court in the case of Deepak Singh
and Others vs. State of U.P. and Others
being Writ -A No. 24273 of 2018 has
rejected
similar
plea
for
grant
of
equivalence on the ground that petitioner
therein possesses highter qualification.

15. Prescription of qualifications
and other conditions of service pertains to
the field of policy and is within the
exclusive discretion and jurisdiction of
the State. It is not open to the Courts to
direct
the
Government
to
have
a
particular method of recruitment or
eligibility criteria. The observation of the
Supreme Court made in paragraph 10 of
the judgment in P.U. Joshi and Others
vs. Accountant General, Ahmedabad and
others reported in (2003) 2 SCC 632,
read thus:-

"10. ... Questions relating to the
constitution, pattern, nomenclature of
posts,
cadres,
categories,
their
creation/abolition,
prescription
of
qualifications and other conditions of
service including avenues of promotions
and criteria to be fulfilled for such
promotions pertain to the field of Policy
is within the exclusive discretion and
jurisdiction of the State, subject, of
course, to the limitations or restrictions
envisaged in the Constitution of India and
it is not for the statutory tribunals, at any
rate, to direct the Government to have a
particular method of recruitment or
eligibility
criteria
or
avenues
of
promotion or impose itself by substituting
its views for that of the State. Similarly, it
is well open and within the competency of
the State to change the rules relating to a
service and alter or amend and vary by
addition/substraction the qualifications,
eligibility criteria and other conditions of
service including avenues of promotion,
from time to time, as the administrative
exigencies may need or necessitate."

(Refer: V.K. Sood vs. Secretary,
Civil Aviation AIR 1993 SC 2285)

16. In Chandigarh Administration vs.
Usha Kheterpal Waie and others, (2011) 9
SCC 645, the Supreme Court, in paragraph
22, observed:-
372 INDIAN LAW REPORTS ALLAHABAD SERIES

"22. It is now well settled that it is
for the rule-making authority or the
appointing authority to prescribe the mode
of selection and minimum qualification for
any recruitment. The courts and tribunals
can neither prescribe the qualifications nor
entrench upon the power of the authority
concerned so long as the qualifications
prescribed by the employer is reasonably
relevant and has a rational nexus with the
functions and duties attached to the post
and are not violative of any provision of the
Constitution, statute and rules. [See J.
Rangaswamy vs. Govt. of A.P. (1990) 1
SCC 288 and P.U. Joshi vs. Accountant
General (2003) 2 SCC 632]. In the absence
of any rules, under Article 309 or statute,
the appellant had the power to appoint
under its general power of administration
and prescribe such eligibility criteria as it
is
considered
to
be
necessary
and
reasonable. Therefore, it cannot be said
that
the
prescription
of
Ph.D.
is
unreasonable."

17. The policy decision has to be
taken by the State Government for
changing the academic qualification for the
post of Mining Officer as well as Mining
Inspector, which cannot be judicially
reviewed by this Court. The Apex Court in
the case of Vasavi Engineering College
Parents Association ..... Vs State of
Telangana & Ors. reported in (2019) 7
SCC 172, has held that the Court can
neither act an appellate authority nor can
usurp jurisdiction of decision maker and
make the decision itself. Until and unless
the same is arbitrary or in violation of any
provision of law or is infringing the
fundamental rights of any person.

18. In Fertilizer Corporation Kamgar
Union (Regd.), Sindri vs Union of India,
reported in (1981) 1 SCC 568, it was also
observed:-

"35. ....We certainly agree that
judicial
interference
with
the
administration cannot be meticulous in our
Montesquien system of separation of
powers. The court cannot usurp or
abdicate, and the parameters of judicial
review must be clearly defined and never
exceeded.
If
the
directorate
of
a
government company has acted fairly, even
if it has faltered in its wisdom, the court
cannot, as a super auditor, take the Board
of Directors to task. This function is limited
to testing whether the administrative action
has been fair and free from the taint of
unreasonableness and has substantially
complied with the norms of procedure set
for it by rules of public administration."

19. Reference may also be made to
the judgment of the Apex Court in the case
of Directorate of Film Festivals & Ors. Vs.
Gaurav Ashwin Jain & Ors., reported in
(2007) 4 SCC 737, where the Apex Court
held as follows:-

"16. The scope of judicial review
of governmental policy is now well defined.
Courts do not and cannot act as Appellate
Authorities examining the correctness,
suitability and appropriateness of a policy
nor are courts Advisors to the executive on
matters of policy which the executive is
entitled to formulate."

20. The selection and appointment to
any post should be made strictly in
accordance with terms of the advertisement
and the recruitment rules as has been held
by the Apex Court in the case of Yogesh
Kumar And Others vs Government Of
NTC Delhi reported in (2003) 3 SCC 548.
4 All. Manju Verma & Ors. Vs. State of U.P. & Ors.
373

21. The issue regarding the fact that
post graduate degree in Geology and
graduate degree in Geology may be
considered as essential qualification for
appointment on the post of Mining Officer
and Mining Inspector respectively, can be
looked into by the State Government as the
same is a policy matter and the policy
decisions of the State are not to be
disturbed/interfered with unless they are
found to be grossly arbitrary or irrational.

22. Counsel for the parties agree that
the writ petition may be disposed of finally
at this stage without calling for further
affidavits specifically in view of the order
proposed to be passed today as well as to
the relief pressed by learned counsel for the
petitioners before this Court today.

23. Considering the facts and
circumstances of the case and submissions
made by the parties, this writ petition is
disposed of with a direction to the
petitioners
to
make
a
detailed
representation along with the copy of writ
petition, all the documents so advised as
well as certified copy of this order before
the respondent no.2, i.e. Director, Geology
& Mining, U.P., Lucknow, who shall
forward the same to the respondent no.1,
i.e. Principal Secretary, Geology & Mining
Department,
Government
of
U.P.,
Lucknow. If any such representation is
made, the respondent no.1 after obtaining
expert opinion from Uttar Pradesh Public
Service Commission, Prayagraj, U.P. shall
make all endeavours to consider and decide
the
same,
in
accordance
with
law,
preferably within a period of two months
from the date of receipt of the said
representation.

24. Accordingly, this writ petition is
disposed of. No order as to costs.
----------
(2022)04ILR A373
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.03.2022

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ A No. 12236 of 2021
with
other connected cases

Manju Verma & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Lalta Prasad Misra, Prafulla Tiwari

Counsel for the Respondents:
C.S.C.

A. Service Law -Paramedical and nonparamedical
staff
-
Appointment
on
contractual basis - Discharge - Refusal to
renew the service - Validity challenged -
No statutory service rules framed - Effect
- Duty of the St. explained - Held, nonexistence of statutory service rules does
not make any difference as the St. has coextensive executive power for the same.
It is duty of the St. Government to
forthwith frame the rules and make
regular selection as per law. In the garb of
not framing the rules St. Government
cannot claim right to become arbitrary
and hire and fire at its own sweet will in
the garb of contractual appointment. The
conduct of the St. has to be non-arbitrary
-
Held
further,
the
petitioners
are
discharged in arbitrary manner. (Para 12
and 14)
B.
Service
jurisprudence
-
Adhoc
employees - Discharge - Nature of work -
It's being permanent in nature - Effect -
Replacement
of
adhoc
employee
by
another adhoc employee - Permissibility -
Requirement of work is permanent in