# Amod Kumar v. Director Training & Employement, U.P. Rozgar Bhawan, Lko. & Ors

- **Citation:** (2022) 3 ILRA 927
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-05
- **Case number:** Special Appeal No. 1 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amod-kumar-v-director-training-employement-u-p-rozgar-bhawan-lko-ors-48265
- **Pages:** 11

## Headnote

A. Service Law - Service Rules of 1991 -
Rule 8 - U. P. Industrial Training Institutes
(Instructors) Service Rules, 1991 - Rule 5
- U. P. Procedure for Direct Recruitment
928 INDIAN LAW REPORTS ALLAHABAD SERIES
for Group 'C' Posts (Outside the Purview
of U.P. Public Service Commission) Rules,
1998 read with U.P. Procedure for Direct
Recruitment
to
Group
'C'
Posts
of
Technical Nature Or For Which Specific
Qualifications are Prescribed (Outside the
Purview
of
the
U.P.
Public
Service
Commission), Rules, 2001; 3rd Amendment
to the U.P. Industrial Training Institutes
(Instructors)
Service
Rules,
1991
-
Equivalence
of
qualifications
for
the
purposes of employment, can be decided
by the employer only, which in the present
case is the State Government, and not by
any other authority, including the Courts.
(Para 28)

The appointment has to be made strictly as per
terms of the advertisement and in case, the
candidates who did not possess the qualification
as mentioned in the advertisement were
permitted to participate in the selection process,
it would be a fraud with the Public and no Court
should be a party to the perpetuation of the
fraudulent practice. (Para 29)

B. Equity and law are twin brothers and
law should be applied and interpreted
equitably but equity cannot over-ride
written or settled law. (Para 30)

C. Mere inclusion of candidates in a
selection list does not confer upon them a
vested right to appointment. In the instant
case, the petitioner had merely faced interview
and the selection process had not even been
completed. The respondents issued a fresh
advertisement on the ground that they could
not get candidates possessing the prescribed
eligibility qualification in response to the earlier
advertisement, which is a valid reason and
which
is
not
arbitrary
or
unreasonable.
Therefore, the appellant-petitioner had no
indefeasible right to be selected in pursuance of
the earlier advertisement issued on 18-12-2006
and the contention of the petitioner in this
regard is liable to be rejected. (Para 33, 34)

The
petitioner
had
the
opportunity
of
participating in the selection process held
pursuant to the subsequent advertisement
issued in the year 2007 but he chose not to do
so. In the Writ Petition challenging the
advertisement issued in the year 2007, no relief
can be granted at this distant point of time,
particularly keeping in view the fact that the
petitioner did not have any indefeasible right for
appointment merely on the ground that he had
faced the interview. (Para 35)

Special appeal dismissed. (E-4)

Precedent followed:

## Text

3 All. Amod Kumar Vs. Director Training & Employment , U.P. Rozgar Bhawan, Lko. & Ors.
927
order, would have to recovered from the
claimant
right
away.
The
said
compensation would remain with the
claimant to abide by the final determination
about the claimant's extent of entitlement to
compensation.

21. For the sake of eschewing any
confusion, it is made clear that all other
findings recorded by the Tribunal in the
impugned award are affirmed, except the
finding relating to functional disability
arising from the certified permanent
disability of 50 percent. The Tribunal is
also
required
to
consider
award
of
compensation under the head of future
prospects that the claimant would be
entitled to, besides loss under the head of
pain, suffering and trauma resulting from
the accident, the inability of the victim to
lead a normal life, together with its
amenities and any future medical expenses
related to the accident. These matters
would be gone into by the Tribunal on the
basis of evidence led before it or evidence
that the Tribunal comes by, upon inquiring
into what would be just compensation in
this case.

22. In the result, this appeal succeeds
and stands allowed in part. The impugned
award is set aside, with a remand of the
claim petition to the Tribunal now
competent to hear the claim petition. The
Tribunal shall hear and decide the claims
petition afresh in accordance with the
remarks in this judgment and on issues
made over to it for determination. The
necessary evidence shall be examined by
the Tribunal for the purpose of passing an
award that determines just compensation,
to which the claimant is entitled. The sum
of money already paid to the claimant
under the Tribunal's award, since set aside
in terms of the interim order passed in this
appeal, shall not be recovered from the
claimant and shall abide by the final
determination to be made relating to the
claim. The Tribunal shall proceed to decide
the claim afresh within three months of
receipt of a copy of this judgment, after
hearing both parties, that is to say, the
Insurance Company and the claimant. Both
the parties shall appear before the Presiding
Officer, Motor Accident Claims Tribunal,
Kanpur Nagar on 21.03.2022.

23. Let this order be communicated to
the Presiding Officer, Motor Accident
Claims Tribunal, Kanpur Nagar by the
Registrar (Compliance) and let the lower
court records be sent to the said Tribunal
by the Office, forthwith.
----------
(2022)03ILR A927
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.01.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal No. 1 of 2022

Amod Kumar ...Petitioner
Versus
Director Training & Employement, U.P.
Rozgar Bhawan, Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
Amita Srivastava

Counsel for the Respondents:
C.S.C., A.S.G.I.

A. Service Law - Service Rules of 1991 -
Rule 8 - U. P. Industrial Training Institutes
(Instructors) Service Rules, 1991 - Rule 5
- U. P. Procedure for Direct Recruitment
928 INDIAN LAW REPORTS ALLAHABAD SERIES
for Group 'C' Posts (Outside the Purview
of U.P. Public Service Commission) Rules,
1998 read with U.P. Procedure for Direct
Recruitment
to
Group
'C'
Posts
of
Technical Nature Or For Which Specific
Qualifications are Prescribed (Outside the
Purview
of
the
U.P.
Public
Service
Commission), Rules, 2001; 3rd Amendment
to the U.P. Industrial Training Institutes
(Instructors)
Service
Rules,
1991
-
Equivalence
of
qualifications
for
the
purposes of employment, can be decided
by the employer only, which in the present
case is the State Government, and not by
any other authority, including the Courts.
(Para 28)

The appointment has to be made strictly as per
terms of the advertisement and in case, the
candidates who did not possess the qualification
as mentioned in the advertisement were
permitted to participate in the selection process,
it would be a fraud with the Public and no Court
should be a party to the perpetuation of the
fraudulent practice. (Para 29)

B. Equity and law are twin brothers and
law should be applied and interpreted
equitably but equity cannot over-ride
written or settled law. (Para 30)

C. Mere inclusion of candidates in a
selection list does not confer upon them a
vested right to appointment. In the instant
case, the petitioner had merely faced interview
and the selection process had not even been
completed. The respondents issued a fresh
advertisement on the ground that they could
not get candidates possessing the prescribed
eligibility qualification in response to the earlier
advertisement, which is a valid reason and
which
is
not
arbitrary
or
unreasonable.
Therefore, the appellant-petitioner had no
indefeasible right to be selected in pursuance of
the earlier advertisement issued on 18-12-2006
and the contention of the petitioner in this
regard is liable to be rejected. (Para 33, 34)

The
petitioner
had
the
opportunity
of
participating in the selection process held
pursuant to the subsequent advertisement
issued in the year 2007 but he chose not to do
so. In the Writ Petition challenging the
advertisement issued in the year 2007, no relief
can be granted at this distant point of time,
particularly keeping in view the fact that the
petitioner did not have any indefeasible right for
appointment merely on the ground that he had
faced the interview. (Para 35)

Special appeal dismissed. (E-4)

Precedent followed:

1. Upendra Narain Singh Vs St. of U. P., [2006
(7) ADJ 178] (Para 7, 14)

2. District Collector and Chairman, Viziangaram
& anr. Vs M. Tripura Sundari Devi, (1990) 3 SCC
655 (Para 29)

3. P.M. Latha & anr. Vs St.of Kerala & ors.,
(2003) 3 SCC 541 (Para 30)

4. State Vs Umesh Kumar, (2020) 10 SCC 448
(Para 33)

Present appeal challenges order dated
24.09.2017, passed by Additional/Joint
Director, Treasury and Pension, Varanasi,
Uttar Pradesh.

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Rajeev Srivastava,
Advocate, learned counsel for the appellant
and Sri Amitabh Rai, Advocate, learned
Additional
Chief
Standing
Counsel
appearing for respondent nos.1 and 2.

2. By means of the instant Special
Appeal filed under Chapter-VIII, Rule-5 of
the Allahabad High Court Rules, the
Appellant has challenged the judgment and
order dated 30.11.2021 passed by the
Hon'ble Single Judge dismissing Writ
Petition No. 2453 (Service Single) of 2008
(Amod Kumar vs. Director Training and
Employment, Lucknow and 03 others).

3. On 08.01.2006, an advertisement
was issued by the Director, Training and
3 All. Amod Kumar Vs. Director Training & Employment , U.P. Rozgar Bhawan, Lko. & Ors.
929
Employment,
Uttar
Pradesh
inviting
applications for selection on 11 posts of
Instructor in the Trade of Mechanic
(Tractor).

4.

The
eligibility
qualification
mentioned in the advertisement was as
follows: -

(1) Having passed Intermediate
Examination conducted by the Uttar Pradesh
Intermediate Education Board or any other
examination recognized by the Government
as its equivalent, (2) a certificate issued by
NCVT in the concerned trade or the
principles of teaching module in trade or a
Diploma in the Trade issued by the Council
for Technical Education or any other
Institution
recognized
by
the
State
Government and (3) a certificate under
regular draft instructor training scheme of
one year duration; or the principles of
teaching module in trade not having
facilities for instructors training (necessary
practical
will
be
provided
after
the
appointment within three years) and (3) a
minimum of two years' experience in an
industry or a training/ teaching institution
either before or after obtaining instructor
training.

5. The petitioner applied in response
to the aforesaid advertisement and on
03.02.2007, the respondent no.1 had issued
a letter calling the appellant to appear for
interview on 16.02.2007. The appellant
claimed that he had appeared for interview
on 16.07.2007 but no selection was made
as, according to the respondent no.1, no
candidate was found to be eligible for being
appointed as Instructor in the Trade of
Mechanic (Tractor).

6. In March 2008, the respondent No.
1 issued a fresh advertisement inviting
applications for selection to 11 posts of
Instructors in Trade Mechanic Tractor.

7. The appellant-petitioner did not
apply
in
pursuance
of
the
said
advertisement and he filed Writ Petition
No. 2453 (S/S) of 2008 in this Court
challenging the said advertisement seeking
a writ of mandamus commanding the
respondent Nos. 1 and 2 to consider his
appointment in furtherance of the earlier
advertisement dated 18.12.2006 mainly on
the ground that the petitioner holds the
eligibility qualification mandated by this
Court in the judgment dated 08-08-2006
passed in Writ Petition No. 1822 of 2004 -
Upendra Narain Singh versus State of
U.P. [2006 (7) ADJ 178], which in turn has
to be read in the qualifications prescribed in
Rule 8 of the Service Rules of 1991 as
amended with effect from 08-08-2003 and
the qualification no. 3 prescribed in Rule 8
of the Rules of 1991 is not only
misconceived, but is beyond the authority
of the respondents no. 1 and 2.

8. Placing reliance on the aforesaid
judgment in Upendra Narain Singh (Supra),
the appellant-petitioner has submitted that
when this Court had issued a direction to
the State Government "to advertise, hold
and complete the selection process on all
the vacancies within a period of four
months from the date of delivery of this
judgment.", the respondents had no right to
cancel the selection process and it had to be
completed as directed in the aforesaid
judgment and order dated 08-08-2006.

9. In support of his contention that the
Craft Instructor Certificate (CTI) awarded
to the appellant-petitioner by the NCVT for
the trade of Farm Mechanic includes trades
of Tractor Mechanic and Agriculture
Mechanic
Machinery,
the
appellant-
930 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner has annexed a letter dated
26.11.2007 written by the Director, Central
Higher Training Institute (ATI) Ludhiana
to the Director Training and Employment,
U.P. as Annexure No. 5 to the Writ
Petition, stating that "मैं प्रमाणित करता हुं णक
अनुदेशक प्रणशक्षि णशल्पकार फॉमट मैकेणनक
टरेड से (सी.टी.आई.) कराया जाता है । टरेड फॉमट
मैकेणनक, टरैक्टर मैकेणनक, एिी. मैकेणनक
मशीनरी के प्रणशक्षाथी को प्रणशक्षि णदया जाता
है। तीनोुं टरेडोुं की अनुदेशक प्रणशक्षि णशल्पकार
(सी.टी.आई.) फॉमट मैकेणनक से प्रमाि पत्र णदया
जाता है । याची गि का प्रमाि पत्र सत्य जारी
णकया गया है ।"

10. In the counter affidavit filed on
behalf of the State, it was pleaded that mere
calling for the interview does not create any
right. The petitioner-appellant was not
having
the
requisite
qualification
as
prescribed in the amended Instructor
Service Rules and as mentioned in the
advertisement and for this reason though
the appellant-petitioner was called for
interview but no selections were made.

11. In the counter affidavit filed on
behalf of the respondent Nos. 3 and 4 i.e.
Director General of Employment and
Training,
Ministry
of
Labour
and
Employment, Government of India, New
Delhi and Director Advanced Training
Institute, National Council for Vocational
Training, Government of India, Ministry of
Labour, Gill Road, Ludhiana, it was stated
that NCVT in its 31st meeting held in
November 1995 recommended a separate
stream of instructors for theory subjects
and
practical
classes
with
enhanced
qualifications and revised norms with
revised
pay
scale.
The
above
recommendations
were
accepted
by
Government of India for its implementation
and, therefore, all the State Governments
had
been
advised
to
amend
their
recruitment
rules
and
appoint
the
Vocational
instructors
with
enhanced
qualification and revised norms vide letter
dated 24th July 1996.

12. Regarding the aforesaid letter
dated 26.11.2007 relied by the petitioner, it
is stated in the counter affidavit that it is
false that the Director, Advanced Training
Institute, Gill Road, Ludhiana had written a
letter dated 26.11.2007 to the Directorate of
Training and Employment, Rozgar Bhavan,
Lucknow as no such letter was issued by
the office of the Director, Advanced
Training Institute, Gill Road, Ludhiana.
The letter dated 26.11.2007 contained as
Annexure No. 5 to the writ petition
submitted by the appellant-petitioner was
false and fabricated document. The said
letter had neither been signed by the
official respondent nor had it been issued to
the opposite party No. 1. In this way, the
letter dated 26.11.2007 was a forged,
fraudulent and fabricated document.

13. Replying to the pleadings of the
respondent Nos. 1 and 2 that by merely by
being called for interview, the appellantpetitioner does not get any indefeasible
right for being selected, the appellantpetitioner has stated that once a candidate
has submitted his application in accordance
with the terms and conditions stipulated in
the
advertisement
and
the
candidate
concerned has been called for the interview
in recognition of the application of the
candidate having been found in order, the
prospective employer is estopped from
disputing the qualification of the candidate
concerned.
It
is
only
when
the
certificate/testimonial
given
by
the
candidate concerned is found to be fake or
3 All. Amod Kumar Vs. Director Training & Employment , U.P. Rozgar Bhawan, Lko. & Ors.
931
not genuine that the candidature of an
applicant is liable to be cancelled.

14. The advertisement dated 18-122006 and the second advertisement issued
in March 2008, copies whereof have been
filed as Annexure Nos. 2 and 3 to the Writ
Petition respectively, state that the same
were issued in compliance of the order
dated 08-08-2006 issued by this Court in
Writ Petition No. 1822 of 2004 Upendra
Narain Singh versus State of U. P. [2006
(7) ADJ 178]. The principal contention of
the learned Counsel for the Appellant is
that the respondents were obliged to
complete
the
selection
process
in
compliance with the aforesaid judgment of
this Court and by not completing the
selection process, they have violated the
order passed by this Court.

15. By means of the judgment and
order dated 30-11-2021, the Hon'ble Single
Judge has dismissed the Writ Petition
holding that the appointing authority or the
employer has the right to cancel the
selection
process
pursuant
to
the
advertisement issued earlier and to readvertise the posts. Merely by appearing for
the interview, the petitioner did not get any
indefeasible right to be appointed on the
post of Instructor Mechanic (Tractor). The
appellant-petitioner had the opportunity of
participating in the selection process held
pursuant to the subsequent advertisement
issued in the year 2007 but he chose not to
do so. In the Writ petition challenging the
advertisement issued in the year 2007, no
relief can be granted at this distant point of
time, particularly keeping in view the fact
that the petitioner did not have any
indefeasible right for appointment merely on
the ground that he had faced the interview.

16. Learned counsel for the appellantpetitioner has sought to assail the judgment
dated 30-11-2021 on the ground that the
Hon'ble Single Judge failed to take into
consideration
the
judgment
dated
08.08.2006 passed by this Court in
Upendra Narain Singh versus State of U.P.
(Supra), paragraph No. 34 whereof is as
follows:-

"34. The State Government is
directed, in addition, and in modification to
the direction issued by Lucknow Bench of
this Court in its judgment and order dated
05.3.2003, in Writ Petition No. 6565 (SS)
of 2001, Kalyan Rai v. State of U.P. and
Ors. to advertise, hold and complete the
selection process on all the vacancies
within a period of four months from the
date of delivery of this judgment. Now
since directions have to be issued for fresh
advertisement for these vacancies and all
those vacancies, which may have arisen
subsequently,
the
rights
of
those
candidates, who have obtained these
higher/
teaching
qualifications
as
recommended by the Central Government
and provided in the rules by the 2nd
Amendment to the Rules of 1991, on
08.08.2003 cannot be ignored. It is as such
further directed that all those candidates,
who have obtained qualifications upto the
date of fresh advertisement shall also be
considered for selections and that all those
candidates, who were within the age limit
on the last date of receiving application in
pursuance
of
advertisement
dated
20.8.2003, shall also be eligible to apply
for selections in pursuance of the fresh
advertisement."

17. A perusal of the judgment in
Upendra Narain Singh (Supra) reveals that
prior to the year 1991 the service
conditions of the Vocational Instructors
were regulated by the Government Orders
and Administrative Instructions. Then the
932 INDIAN LAW REPORTS ALLAHABAD SERIES
State Government framed U. P. Industrial
Training Institutes (Instructors) Service
Rules, 1991 (In short ''the Rules of 1991')
which replaced those orders and provided
for, amongst other, the qualifications and
method of recruitment. Rule 5 of the Rules
of 1991 provides for recruitment through
U.P. Public Service Commission on the
basis of competitive examination and
interview. The rules were amended in 1994
by 1st Amendment to these rules providing
for source of recruitment through the
Subordinate
Services
Selection
Commission, under the Rules known as U.
P. Procedure for Direct Recruitment for
Group 'C' Posts (Outside the Purview of
U.P. Public Service Commission) Rules,
1998, read with U.P. Procedure for Direct
Recruitment
to
Group
'C'
Posts
of
Technical Nature Or For Which Specific
Qualifications are Prescribed (Outside the
Purview of the U.P. Public Service
Commission), Rules, 2001.

18.

The
National
Council
of
Vocational
Training
(NCVT)
made
recommendations
to
the
Central
Government to enhance the qualifications
required for the post of Vocational
Instructors in Industrial Training Institutes.
The NCVT proposed that for Vocational
Instructors teaching, Theory including
Workshop,
Calculation,
Science
and
Engineering Drawing, the candidate should
possess apart from the minimum academic
qualifications of 10+2 system of education,
three years diploma in appropriate branch
of engineering from recognized institutions
and in addition, the teaching qualification
namely Certificate under Draft Instructor
Training Scheme (one year course) or
should
have
successfully
completed
minimum
two
modules
of
teaching
methodology
under
Draft
Instructor
Training Programme on module pattern, or
should have passed one year course from
Technical
Teachers
Training
Institute
(TTTI) under Ministry of Human Resource
Development.

19. The NCVT further proposed that
for Vocational Instructor (Practical) apart
from the academic qualification of 10+2
system of education, the candidate should
possess
technical
qualification
of
NTC/CAC for Trade; (1) a certificate under
regular draft instructor training scheme of
one year duration; or (2) the principles of
teaching module in trade not having
facilities for instructors training, necessary
practical be provided after the appointment
within three years; and (3) a minimum of
two years' experience in an industry or a
training/ teaching institution either before
or after obtaining instructor training.

20. The recommendations of NCVT,
were accepted by the Central Government
and by letter dated 24.7.1996 of Director
General/ Joint Secretary (DGE & I),
Ministry of Labour, Government of India,
the Central Government, issued directions
to all Secretaries of the State Governments/
UT
Administration
(dealing
with
Draftsman Training Scheme), for necessary
amendments in recruitment rules.

21. In the meanwhile 'Prashikshan
Mitra Yojana' was introduced by issuing a
circular dated 31.8.2000, initially for the
financial year 2000-01 for appointment of
'Guest Speakers' on honorarium basis on
contract. On the expiry of their fixed term,
the 'Guest Speakers' appointed on contract
basis under the scheme filed writ petitions
with the prayer to continue them and to
regularize their services. The writ petitions
were clubbed and heard together with
leading Writ Petition No. 6565 (SS) of
2001, Kalyan Rai v. State of U.P. All the
3 All. Amod Kumar Vs. Director Training & Employment , U.P. Rozgar Bhawan, Lko. & Ors.
933
writ petitions were dismissed by means of a
judgment dated 05.3.2003 and a direction
was issued to the Department of Industries,
Government of U.P., the administrative
department, to hold selections within a
period
of
four
months
by
making
advertisement, if the selections were not
earlier advertised.

22. The Government of Uttar Pradesh
accepted the recommendations of the
NCVT and the Central Government and
amended the Rules of 1991 by 2nd
Amendment notified on 08.8.2003 and
advertised the vacancies on 20.8.2003
inviting applications from the candidates
possessing the higher teachers training
qualifications provided in the amended
rules. However, after applications were
received, the State Government cancelled
the advertisement by issuing a notice dated
29-09-2003.

23. Thereafter State Government
again amended the Rules of 1991 by the
3rd Amendment to the Rules of 1991
notified on 09.12.2003, deleting enhanced
teaching qualifications, directed by the
Central Government on recommendations
of the National Council of Vocational
Training. A fresh advertisement was issued
on 13.12.2003 inviting applications for 742
vacancies of Instructors existing in ITI's in
34 Trades.

24. In Upendra Narain Singh (Supra),
under
challenge
was
to
the
3rd
Amendment
to
the
U.P.
Industrial
Training Institutes (Instructors) Service
Rules, 1991 notified on 09.12.2003,
deleting the higher teaching qualifications,
introduced in the rules by the 2nd
Amendment
vide
notification
dated
08.08.2003, for the post of Vocational
Instructors (Trade, Theory, Workshop,
Calculation, Science, Engineering and
Drawing)
and
Vocational
Instructor
(Practical)
in the Industrial Training
Institutes (in short ITI's) in U.P. and this
Court held as follows: -

"The State Government having
acted upon the directions of the Central
Government and amended the rules, was
not competent to again amend the rules
lowering the higher teaching qualifications
and making them preferential. The State
Government rightly understood its legal
obligations and the constitutional scheme.
Having accepted the position, the State
Government acted grossly illegally and
arbitrarily in amending the rules by the 3rd
Amendment, in violation of Article 14 and
16 of the Constitution, The Court takes
judicial notice of the fact in the State of
U.P. the teaching standards in all the
educational
institutions
are
falling
gradually. In order to improve these
standards, the national level teaching
institutions have been established offering
higher teaching qualifications and the
Central Government is insisting the State
Government to appoint only such teachers,
who have higher and specific teaching
qualifications. The candidates possessing
such higher teaching qualifications have
legitimate expectation to be considered for
appointment on teaching posts. In case the
State Government allows the persons
having lower teaching qualifications to
hold the posts, the rights of candidates
having higher teaching qualifications will
be violated. It will give rise to invidious
discrimination
and
violate
their
constitutional right of equality before law.

The amendment in Rule 8 by the
U.P.
Industrial
Training
Institute
(Instructor)
(3rd Amendment) Service
Rules, 2003, is thus held to be violative to
934 INDIAN LAW REPORTS ALLAHABAD SERIES
the Constitutional Scheme of distribution of
legislative powers, as also Article 14 and
16 of the Constitution of India. The writ
petitions challenging the advertisement
dated 13.12.2003 are thus liable to be
allowed and the advertisement dated
13.12.2003 is consequently quashed."

25. Finally this Court issued the
following directions: -

"The
State
Government
is
directed, in addition, and in modification to
the direction issued by Lucknow Bench of
this Court in its judgment and order dated
05.3.2003, in writ petition No. 6565 (SS) of
2001, Kalyan Rai v. State of U.P. and Ors.
to advertise, hold and complete the
selection process on all the vacancies
within a period of four months from the
date of delivery of this judgment. Now
since directions have to be issued for fresh
advertisement for these vacancies and all
those vacancies, which may have arisen
subsequently,
the
rights
of
those
candidates, who have obtained these
higher/
teaching
qualifications
as
recommended by the Central Government
and provided in the rules by the 2nd
Amendment to the Rules of 1991, on
08.08.2003 cannot be ignored. It is as such
further directed that all those candidates,
who have obtained qualifications upto the
date of fresh advertisement shall also be
considered for selections and that all those
candidates, who were within the age limit
on the last date of receiving application in
pursuance
of
advertisement
dated
20.8.2003, shall also be eligible to apply
for selections in pursuance of the fresh
advertisement."

26. The position which emerges from
the judgment in Upendra Narain Singh
(Supra) is that the NCVT had proposed that
for Vocational Instructor (Practical) apart
from the academic qualification of 10+2
system of education the candidate should
possess
technical
qualification
of
NTC/CAC for Trade; (1) a certificate under
regular draft instructor training scheme of
one year duration; or (2) the principles of
teaching module in trade not having
facilities for instructors training, necessary
practical be provided after the appointment
within three years; and (3) a minimum of
two years' experience in an industry or a
training/ teaching institution either before
or after obtaining instructor training. The
recommendations of NCVT, were accepted
by the Central Government and the Central
Government
issued
directions
to
all
Secretaries of the State Governments/UT
Administration for necessary amendments
in recruitment rules. The Government of
Uttar
Pradesh
accepted
the
recommendations and amended the Rules
of 1991 by 2nd Amendment notified on
08.8.2003. However, thereafter the 3rd
amendment was made in the Rules deleting
the requirement of higher qualification
which
was
introduced
by
the
2nd
Amendment and the third amendment was
quashed by this Court in Upendra Narain
Singh (Supra). Therefore, the eligibility
requirement put in the Advertisement dated
18-12-2006 was as per the 2nd Amendment
Rules as also as per the order passed in
Upendra Narain Singh (Supra) and there is
no illegality in it.

27. The appellant-petitioner next
contended
that
he
possesses
the
qualification
of
Craft
Instructor's
Certificate (CTI) awarded by NCVT in the
trade of Farm Machinery, which according
to him is an umbrella term which includes
the trades of Farm Mechanic, Tractor
Mechanic,
Agriculture
Mechanic
Machinery and this has been certified by
3 All. Amod Kumar Vs. Director Training & Employment , U.P. Rozgar Bhawan, Lko. & Ors.
935
the Director, Central Higher Training
Institute (ATI) Ludhiana to the Director
Training and Employment, U.P. through
his letter dated 26.11.2007 filed as
Annexure No. 5 to the Writ Petition. In this
regard firstly, we may state that in the
counter affidavit filed on behalf of the
Director, Central Higher Training Institute,
it has been stated that it is false that the
Director, Advanced Training Institute, Gill
Road, Ludhiana had written the letter dated
26.11.2007 to the Directorate of Training
and
Employment,
Rozgar
Bhavan,
Lucknow as no such letter was issued by
the office of the Director, Advanced
Training Institute, Gill Road, Ludhiana.
This letter dated 26.11.2007 contained as
annexure No. 5 to the writ petition
submitted by the appellant-petitioner is
false and fabricated document. The said
letter has neither been signed by the official
respondent nor has it been issued to the
opposite party No. 1. In this way, the letter
dated 26.11.2007 is a forged, fraudulent
and fabricated document. Therefore no
benefit can be given to the petitioner on the
basis of the aforesaid letter.

28.

Secondly,
equivalence
of
qualifications
for
the
purposes
of
employment, can be decided by the
employer only, which in the present case is
the State Government, and not by any other
authority, including the Courts.

29. In District Collector and
Chairman, Viziangaram and another v.
M. Tripura Sundari Devi (1990) 3 SCC
655, the Hon'ble Supreme Court held that
the appointment has to be made strictly as
per terms of the advertisement and in case,
the candidates who did not possess the
qualification
as
mentioned
in
the
advertisement were permitted to participate
in the selection process, it would be a fraud
with the Public and no Court should be a
party to the perpetuation of the fraudulent
practice. Paragraph No. 6 of the said report
runs as follows:

"6. It must further be realised by
all concerned that when an advertisement
mentions a particular qualification and an
appointment is made in disregard of the
same, it is not a matter only between the
appointing authority and the appointee
concerned. The aggrieved are all those who
had similar or even better qualifications
than the appointee or appointees but who
had not applied for the post because they
did
not
possess
the
qualifications
mentioned in the advertisement. It amounts
to a fraud on public to appoint persons with
inferior
qualifications
in
such
circumstances unless it is clearly stated that
the qualifications are relaxable. No Court
should be a party to the perpetuation of the
fraudulent practice. We are afraid that the
Tribunal lost sight of this fact."

30. In P.M. Latha and another v.
State of Kerala and others, (2003) 3 SCC
541,
as
per
the
advertisement
the
candidates having educational qualification
of Teachers Training Certificate (for short
T.T.E.) were entitled to compete for the
selection and seek appointment on the post
of Teachers in Government Primary
School. However, in the select list B.Ed.
Candidates were also included. As a result
of which the candidates possessing the
qualification of T.T.C. were excluded.
Repelling the arguments advanced on
behalf of the successful candidates that
B.Ed.
qualification
was
a
higher
qualification than T.T.C. and therefore, the
B.Ed. Candidates should be held to be
eligible to compete for the said post, the
Apex Court in paragraph No. 13 of the said
report has held as follows:
936 INDIAN LAW REPORTS ALLAHABAD SERIES

"13. Equity and law are twin
brothers and law should be applied and
interpreted equitably but equity cannot
over-ride written or settled law. The
division bench forgot that in extending
relief on equity to B.Ed. candidates who
were unqualified and yet allowed to
compete and seek appointments contrary to
the terms of the advertisement, it is not
redressing the injustice caused to the
appellants who were T.T.C. candidates and
would have secured a better position in the
Rank list to get appointment against the
available vacancies, had B.Ed. candidates
been excluded from the selections. The
impugned judgment of the division bench
is both illegal, inequitable and patently
unjust. The T.T.C. candidates before us as
appellants have been wrongly deprived of
due chance of selection and appointment.
The impugned judgment of the division
bench, therefore, deserves to be set aside
and of the learned single judge restored."

31. Thus the respondents could
complete
the
selection
process
only
considering the eligibility qualifications
mentioned in the advertisement itself and
any deviation therefrom would vitiate the
selection
process.
Therefore,
the
petitioner's contention that he was entitled
to be selected as he possessed a Craft
Instructor Certificate (CTI) for the trade of
Farm Mechanic and that includes trades of
Tractor Mechanic also, is liable to be
rejected for the aforesaid reasons.

32. Now we come to the petitioner's
next ground of challenge, which is that the
fact that the petitioner was interviewed for
the post of instructor in Govt. ITI,
conferred upon the petitioner the right to be
considered for appointment as instructor in
the trade of Mechanic Tractor. In the
judgment under challenge in this Appeal,
the Hon'ble Single Judge has held that the
appointing authority or the employer has
the right to cancel the selection process
pursuant to the advertisement issued earlier
and to re-advertise the posts. Merely by
appearing for the interview, the petitioner
did not get any indefeasible right to be
appointed on the post of Instructor
Mechanic (Tractor). We find no error in
this finding of the Hon'ble Single Judge.

33. In State v. Umesh Kumar,
(2020) 10 SCC 448, the Hon'ble Supreme
Court has been pleased to summarize the
well settled law in this regard in the
following words: -

"19. The real issue, however, is
whether the respondents were entitled to a
writ of mandamus. This would depend on
whether they have a vested right of
appointment. Clearly the answer to this
must be in the negative. In Punjab SEB v.
Malkiat Singh, this Court held that the
mere inclusion of candidates in a selection
list does not confer upon them a vested
right to appointment. The Court held: (SCC
p. 26, para 4)

"4. ... the High Court committed
an error in proceeding on the basis that the
respondent had got a vested right for
appointment and that could not have been
taken away by the subsequent change in the
policy. It is settled law that mere inclusion
of name of a candidate in the select list
does not confer on such candidate any
vested right to get an order of appointment.
This position is made clear in para 7 of the
Constitution Bench judgment of this Court
in Shankarsan Dash v. Union of India
which reads: (SCC pp. 50-51)

''7. It is not correct to say that if a
number of vacancies are notified for
3 All. Smt. Yashoda Devi & Ors. Vs. State of U.P. & Ors.
937
appointment and adequate number of
candidates are found fit, the successful
candidates acquire an indefeasible right to
be appointed which cannot be legitimately
denied. Ordinarily the notification merely
amounts to an invitation to qualified
candidates to apply for recruitment and on
their selection they do not acquire any right
to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal
duty to fill up all or any of the vacancies.
However, it does not mean that the State
has the licence of acting in an arbitrary
manner. The decision not to fill up the
vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies or
any of them are filled up, the State is bound
to respect the comparative merit of the
candidates, as reflected at the recruitment
test,
and
no
discrimination
can
be
permitted. This correct position has been
consistently followed by this Court, and we
do not find any discordant note in the
decisions in State of Haryana v. Subash
Chander Marwaha, Neelima Shangla v.
State of Haryana or Jatinder Kumar v. State
of Punjab"
34. In the instant case, the petitioner had
merely faced interview and the selection
process had not even been completed. The
respondents issued a fresh advertisement on
the ground that they could not get
candidates
possessing
the
prescribed
eligibility qualification in response to the
earlier advertisement, which is a valid
reason and which is not arbitrary or
unreasonable. Therefore, the appellantpetitioner had no indefeasible right to be
selected in pursuance of the earlier
advertisement issued on 18-12-2006 and
the contention of the petitioner in this
regard is liable to be rejected.

35. The Hon'ble Single Judge has
rightly held that the petitioner had the
opportunity of participating in the selection
process held pursuant to the subsequent
advertisement issued in the year 2007 but
he chose not to do so. In the Writ Petition
challenging the advertisement issued in the
year 2007, no relief can be granted at this
distant point of time, particularly keeping
in view the fact that the petitioner did not
have any indefeasible right for appointment
merely on the ground that he had faced the
interview.

36. In view of the aforesaid
discussion, the Special Appeal lacks merit
and is liable to be dismissed.

37. Accordingly, the Special Appeal
is dismissed. Costs made easy.
----------
(2022)03ILR A937
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ A No. 2615 of 1998

Smt. Yashoda Devi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Kapil Deo, Sri Abhishek Yadav, Sri
Ashwani Kumar

Counsel for the Respondents:
C.S.C., Sri K.P. Tripathi, Sri Manik Sinha, Sri
N.K. Seth, Sri R.C. Srivastava, Sri Sudeep
Seth, Sri Uttam Kumar Verma

A. Service Law - Uttar Pradesh Krishi
Evam
Prodyogik
Vishwavidyalaya
Adhiniyam, 1988 - As per the interim order,
the petitioners have been drawing revised pay
scale of Rs. 1200-2040/- after it was sanctioned