# Ashish Kumar v. State of U.P. & Ors

- **Citation:** (2022) 4 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-21
- **Case number:** Writ A No. 13866 of 2017
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-kumar-v-state-of-u-p-ors-47607
- **Pages:** 7

## Headnote

A. Service Law - Post of Junior Engineer
Electrical
(Trainee)
-
Qualification
-
Variation therein - Judicial review - Scope
of interference - Three years Diploma in
Electrical
Engineering
was
required,
however the petitioner possesses three
years Diploma in Electrical and Electronics
Engineering - Candidature rejected -
Validity challenged - There was lack of
necessary pleading that contents and
syllabus
of
three
years
in
Diploma
Electrical and Electronics Engineering are
identical
to
three
years
Diploma
in
Electrical Engineering - Effect- Held, it is
the domain of the employer to prescribe
qualification as a condition of eligibility -
The Court has no jurisdiction to expand
upon
the
ambit
of
prescribed
qualifications. (Para 12, 18 and 22)
Writ petition dismissed. (E-1)
List of Cases cited :-

## Text

380 INDIAN LAW REPORTS ALLAHABAD SERIES
also be at liberty to examine performance
of each petitioner on their respective posts
before renewing their services after expiry
of
their
contract
period
and
pass
appropriate order in accordance with law.
----------
(2022)04ILR A380
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 13866 of 2017

Ashish Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Hari Om, Sri A. Khare

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

A. Service Law - Post of Junior Engineer
Electrical
(Trainee)
-
Qualification
-
Variation therein - Judicial review - Scope
of interference - Three years Diploma in
Electrical
Engineering
was
required,
however the petitioner possesses three
years Diploma in Electrical and Electronics
Engineering - Candidature rejected -
Validity challenged - There was lack of
necessary pleading that contents and
syllabus
of
three
years
in
Diploma
Electrical and Electronics Engineering are
identical
to
three
years
Diploma
in
Electrical Engineering - Effect- Held, it is
the domain of the employer to prescribe
qualification as a condition of eligibility -
The Court has no jurisdiction to expand
upon
the
ambit
of
prescribed
qualifications. (Para 12, 18 and 22)
Writ petition dismissed. (E-1)
List of Cases cited :-
1. Zahoor Ahmad Rather & ors. Vs Sheikh
Imtiyaz Ahmad & ors.; 2019 (2) SCC 404
2. Writ-A No.1092 of 2015; Shailendra Kumar
Rai & ors. Vs St. of U.P & ors.
3. W.C. (C) 6100/2012 & CM No. 16465/2012;
Ms. Nisha Vs Union of India & ors.
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Akash Khare, learned
counsel for the petitioner, and Sri Abhishek
Srivastava
learned
counsel
for
the
respondents-Corporation.

2. The petitioner through the present
writ petition has prayed for a direction
upon
respondents
to
consider
the
candidature
of
the
petitioner
for
appointment on the post of Junior Engineer
Electrical
(Trainee)
in
U.P.
Power
Corporation Ltd.

3. During the pendency of the writ
petition, the respondent has passed an order
on 25.03.2017 rejecting the candidature of
the petitioner which was challenged by the
petitioner by way of amendment in the writ
petition.

4. The case of the petitioner is that
pursuant
to
an
Advertisement
No.9/V5A/2016/JE notified on 09.10.2016
inviting online application for the post of
Junior Engineer Electrical (Trainee) under
the Electrical Engineer category, Junior
Engineer Civil (Trainee) under the category
of Civil Engineering, he has submitted
application for being considered on the said
post.

5. According to the petitioner, he has
three years diploma in Electrical and
Electronics Engineering from Tamil Nadu
Polytechnic College, Madurai recognized
by U.G.C. Thus, he possesses the essential
4 All. Ashish Kumar Vs. State of U.P. & Ors.
381
qualification for appointment on the said
post. The petitioner submitted the online
application under the O.B.C. category. In
response to his application, he was issued
Admit Card allotting Roll No.1117201837
for CBT to be held on 11.11.2016. The
petitioner
appeared
in
an
online
examination. Thereafter, a final response
sheet was uploaded by respondent no.2Electricity Service Commission on its
website. As per the final response sheet, the
petitioner has obtained 117.25 marks out of
a total of 200 marks. Respondent no.2
declared the result of shortlisted candidates
on 07.12.2016 in which the name of the
petitioner also figured in. Thereafter, the
petitioner
was
called
for
documents
verification by letter dated 07.12.2016 on
12.12.2016. The petitioner appeared before
the authority concerned on 12.12.2016 and
presented all his documents. Thereafter, the
final
select
list
was
published
on
03.01.2017 in which the name of the
petitioner did not find a place.

6. According to the petitioner, the cutoff marks for the O.B.C. candidate were
117 marks whereas the petitioner had
obtained 117.25 marks even then, he was
not declared successful. The impugned
order reveals that the candidature of the
petitioner has been rejected on the ground
that he does not possess the essential
qualification for appointment on the post in
question.

7. It is stated in the writ petition that
the petitioner possesses a diploma in
Electrical and Electronics Engineering
which is equivalent to a diploma of
Electrical Engineering, which is clear from
the chart mentioned in paragraph 13 of the
writ petition showing the subjects of the
petitioner and subjects of one Jai Narain
Chauhan and Amit Kumar, who have
obtained three years diploma in Electrical
Engineering. The petitioner in support of
his aforesaid contention has also enclosed
the mark sheet of Jai Narain Chauhan and
Amit Kumar.

8. In the counter affidavit filed by the
respondents, it is stated that the petitioner
did not possess minimum qualifications as
prescribed. It is also stated that power is
with the Corporation to lay down the
required qualification for appointment on
the post in question. It is also stated that the
diploma possessed by the petitioner is not
equivalent to the diploma in Electrical
Engineering as the syllabus of both the
courses is at the variance of 20% to 30%.

9. The petitioner filed a rejoinder
affidavit denying the averments made in the
counter affidavit.

10. I have considered the rival
submissions of the parties and perused the
record.

11. Before proceeding with the
matter, it would be relevant to reproduce
qualification No.4 (B) in the advertisement
prescribed for recruitment for the post of
Junior Engineer (Trainee)-Electrical:-

"4
Essential
Eligibility
Qualification:

(B) A candidate must have passed

(i)
"Three
years
Diploma
examination in Electrical 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 conducted by the All India
382 INDIAN LAW REPORTS ALLAHABAD SERIES
Council for Technical Education (AICTE),
Govt. of India" OR

(iii) "Diploma Examination in
Electrical Engineering conducted by any of
the Universities in India incorporated by
an Act of the Central/State Legislature."

Note: Diploma received through
Distance Learning Education will not be
eligible."

12. From a perusal of qualification
no.4 (B) of the advertisement, extracted
above, it is evident that for essential
qualification, a candidate must possess
three
years
Diploma
in
Electrical
Engineering. The petitioner undisputedly
possesses three years Diploma in Electrical
and Electronics Engineering.

13. The petitioner in paragraph 13 of
the writ petition has reproduced a chart to
demonstrate that the course of petitioner
and course of Jay Narayan Chauhan and
Amit Kumar are identical and, therefore,
the petitioner should be treated to have
essential qualification as prescribed in the
advertisement. For ready reference, the
chart mentioned by the petitioner in
paragraph 13 is reproduced herein below:-

Sl.
No.
Petitioner
Electrical
&
Electronics
Engineering
Electrical
Engineering of
Jai
Narain
Chauhan
Electrical
Engineering of
Amit Kumar
1
One
Year
Semester
English Basics of
Computer
Science.
Mathematics-I,
Mathematics-II,
Applied Physics,
Applied
Chemistry,
Technical
Drawing,
Applied Physics
Practical,
Applied
One
Year
Semester
Professional
Communicatio
n,
Applied
Mathematics-I,
Applied
Physics,
Applied
Chemistry,
Engineering
Drawing, Basic
Electrical
Engineering,
Electrical
&
Year Semester
English Basics
of
Computer
Science.
Mathematics-I,
MathematicsII,
Applied
Physics,
Applied
Chemistry,
Technical
Drawing,
Applied
Physics
Practical,
Chemistry
Practical,
Work
Shop,
English
Communication
Practical.
Electronics
Engineering
Materials,
Electronics-I
PRACTICAL
S
Applied
Physics,
Applied
Chemistry,
Basic Electrical
Engg.,
Electronics-I,
Workshop
Practice,
Professional
Communicatio
n
SESSIONAL
Sessional,
Games,
Discipline
Applied
Chemistry
Practical, Work
Shop, English
Communicatio
n Practical.
2
Second Year i.e.
IIIrd Semester &
IVth
Semester.
Electrical Circuit
Theory,
Electrical
Machines-1,
Electronic
Devices
&
Circuits,
Electrical
Machines Lab-1,
Electronic
Devices
&
Circuits
Lab,
MS-Office Lab
IVth Semester
Electrical
Machines
II,
Measurement
And
Instrumentation,
Basics
of
Mechanical
Engineering,
Electrical
Machines Lab II
Computer Aided
Electrical
Drawing
Lab,
Mechanical
Engineering Lab.
SECOND
YEAR
THEORY
Applied
Mathematics II,
Electrical
Design
Drawing
&
Estimating-I,
Electrical
Instruments &
Measurements.
Power
Plant
Engg.,
Transmission &
Distribution of
Electrical
Power,
Elementary
Mech.
&
Engg.,
Electronics-II
PRACTICAL
S
Electrical
Design
Drawing
&
Estimating-I,
Electrical
Machines-I,
Electrical
Instruments &
Measurement
Elementary
Mechanical &
Civil
Engg.,
Electronics-II,
Computer
Application
SECOND
YEAR
Applied
Mathematics II,
Electrical
Design
Drawing
&
Estimating-I,
Electrical
Machines-I,
Electrical
Instruments &
Measurements.
Power
Plant
Engineering
Transmission &
Distribution of
Electrical
Power,
Ele.
Mechanical &
Civil
Engg.,
Electronics-II
Computer
Application for
Engineering
Lab.
4 All. Ashish Kumar Vs. State of U.P. & Ors.
383
SESSIONAL
Sessional,
Games,
Discipline
3
Third Year i.e.
Vth Semester &
VIth Semester.
Vth Semester
Generation
Transmission
And
Switch
Gear,
Analog
And
Digital
Electronics,
Elective Theory I
(Control
of
Electrical
Machines).
Wiring Winding
And
Estimation
Lab.,
Elective
Practical
I
(Control
of
Electrical
Machines Lab).
VIth Semester
Distribution And
Utilization,
Micro
Controllers,
Elective Theory
II
(Power
Electronics),
Micro Controller
Lab,
Elective
Practical
II
(Power
Electronics),
Project Work and
Entrepreneurship
FINAL YEAR
THEORY
PAPERS
Industrial
Electronics
&
Control Elect.
Design,
Drawing
&
Estimating-II,
Industrial
Management &
Entrepreneurshi
p Development,
Installation
Maintenance &
Repair
of
Electrical
Machines,
Switch
Gear
and Protection
Utilization
of
Electrical
Energy,
Electrical
Machines-II,
Renewable
Sources
of
Energy
Practical
Papers,
Industrial
Electronics
&
Control,
Installation
Maintenance &
Repair
of
Electrical
Machines,
Electrical
Machines-II,
Project-I
Problem,
Project-II Field
Exposure
SESSIONAL
MARKS
Sessional,
Games
Discipline
CARRY OVER
MARKS
Carry Over Ist
Year
(30%),
Carry Over 2nd
Year (70%)

FINAL YEAR
THEORY
Industrial
Electronics
&
Control, Elect.
Design
Drawing
&
Estimating-II,
Industrial
Management &
Entrepreneurshi
p Development,
Installation
Maintenance &
Repair
of
Electrical
Machines,
Switch
Gear
and Protection,
Utilization
of
Electrical
Energy,
Electrical
Machines-II,
Electric
Traction.
PRACTICAL
Industrial
Electronics
&
Control,
Installation
Maintenance &
Repair
of
Electrical
Machines,
Electrical
Machines-II,
Project-I
Problem,
Project-II Field
Exposure
SESSIONAL
CARRY OVER
Sessional
Games,
Discipline
CARRY OVER
MARKS
Carry over of
Ist Year (30%),
Carry Over of
2nd
Year
(70%).

14. The petitioner has also enclosed
his mark-sheet of three years as well as
mark-sheet of Jai Narayan Chauhan and
Amit Kumar. It would be appropriate to
reproduce a chart indicating the subject of
petitioner and Jai Narayan Chauhan and
Amit Kumar, which they had studied in
their first year:-

Ashish
Kumar
(Petitioner)
Jai
Narayan
Chauhan
Amit
Kumar
Ist Year Semester
(Departmental
of
Technical
Education,
Tamil Nadu Polytechnic
College
(Autonomous),
Mudrai.)
(Name
of
College)

Ist
Year
Semester
Board
of
Technical
Education
(U.P.),
Lucknow
(Name
of
College)

Ist
Year
Semester
Government
Polytechnic,
Jhansi (Name
of College)
Subjects:-
English,
Basic
of
Computer
Science,
Mathematics-I,
Mathematics-II,
Applied
Physics,
Applied
Chemistry,
Technical
Drawing, Applied Physics
Practical,
Applied
Chemistry
Practical,
Workshop,
English
Communication Practical.
Subjects:-
THEORY
Professional
Communicatio
n,
Applied
Mathematics-1,
Applied
Physics,
Applied
Chemistry,
Engineering
Drawing, Basic
Electrical
Engg.,
Electrical
&
Electronics
Engg.
Materials,
Electronics-1
PRACTICAL
S
Applied
Physics,
Applied
Chemistry,
Basic Electrical
Engg.,
Electronics-1,
Workshop
 Practice,
Professional
Communicatio
n
SESSIONAL
Sessional,
Subjects:-
Professional
Communicati
on, Applied
MathematicsI,
Applied
Physics,
Applied
Chemistry,
Engineering
Drawing,
Basic
Electrical
Engineering,
Electrical &
Electronics
Engineering
Materials,
Electronics-I,
Workshop
Practice.
384 INDIAN LAW REPORTS ALLAHABAD SERIES
Games,
Discipline

15. The perusal of the above chart
shows that the course of the petitioner as
well as Jai Narayan Chauhan and Amit
Kumar, and also the subjects which they
had studied in their first year are at
variance and are not similar.

16. It is further pertinent to mention that
petitioner in the writ petition has not made
specific assertion comparing the courses
which could demonstrate that the subject
which the petitioner had studied in the first
year contains the same syllabus and topics
which Jai Narayan Chauhan and Amit Kumar
had studied in the first year. Had the
petitioner given specific assertion, the
respondents could have replied the same, and
only then this Court would have been in a
position to assess or call for an expert opinion
to consider as to whether the Diploma of the
petitioner can be treated to be equivalent to
the Diploma of Electrical Engineering.

17. The respondent in the counter
affidavit has made the specific assertion that
Diploma in Electrical
and Electronics
Engineering and Diploma in Electrical
Engineering are at the variance of 20% to
30% in the syllabus.

18. At this stage, it would be apt to
refer to the judgment of the Apex Court in
the case of Zahoor Ahmad Rather and
Others Vs. Sheikh Imtiyaz Ahmad and
Others 2019 (2) SCC 404 wherein the Apex
Court has held that it is the domain of the
employer to prescribe qualification as a
condition of eligibility. The Court has no
jurisdiction to expand upon the ambit of
prescribed qualifications. Paragraphs 26 and
27 of the said judgment are reproduced
herein below: -

"26.
We
are
in
respectful
agreement with the interpretation which
has been placed on the judgment in Jyoti
K.K.
Vs.
Kerala
Public
Service
Commission, (2010) 15 SCC 596 in the
subsequent decision in State of Punjab Vs.
Anita (2015) 2 SCC 170. The decision in
Jyoti K.K. (supra) turned on the provisions
of Rule 10(a)(ii). Absent such a rule, it
would not be permissible to draw an
inference that a higher qualification
necessarily presupposes the acquisition of
another, albeit lower, qualification. The
prescription of qualifications for a post is a
matter of recruitment policy. The state as
the employer is entitled to prescribe the
qualifications as a condition of eligibility. It
is no part of the role or function of judicial
review to expand upon the ambit of the
prescribed
qualifications.
Similarly,
equivalence of a qualification is not a
matter which can be determined in exercise
of the power of judicial review. Whether a
particular qualification should or should
not be regarded as equivalent is a matter
for the state, as the recruiting authority, to
determine. The decision in Jyoti K.K.
(supra) turned on a specific statutory rule
under which the holding of a higher
qualification
could
presuppose
the
acquisition of a lower qualification. The
absence of such a rule in the present case
makes a crucial difference to the ultimate
outcome. In this view of the matter, the
Division Bench of the High Court was
justified in reversing the judgment of the
learned Single Judge and in coming to the
conclusion that the appellants did not meet
the prescribed qualifications. We find no
error in the decision of the Division Bench.

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
4 All. Ashish Kumar Vs. State of U.P. & Ors.
385
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. (supra) 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. (supra) turned."

19. In the case of Shailendra Kumar
Rai and Others Vs. State of U.P and
Others in Writ-A No.1092 of 2015 this
Court also held that the Court cannot issue
direction to the employer to prescribe
qualification for holding a particular post.
Paragraphs 21 and 22 of the said judgment
are reproduced herein below:-

"21. It is settled law that only the
statutory authority is entitled to frame
statutory rules, terms and conditions of the
services
and
also
the
qualifications
essential for holding a particular post. It is
only and only the concerned authority,
which can take an ultimate decision in this
regard. No direction can be issued to the
employer to prescribe a qualification for
holding a particular post as also held by
Hon'ble Supreme Court in case of Sanjay
Kumar Manjul Vs. Chairman, UPSC and
Others (2006) 8 SCC 42 (paras-25, 26 and
27) as under:-

"25. The statutory authority is
entitled to frame statutory rules laying
down terms and conditions of service as
also the qualifications essential for holding
a particular post. It is only the authority
concerned who can take ultimate decision
therefor.

26.
The
jurisdiction
of
the
superior courts, it is a trite law, would be to
interpret the rule and not to supplant or
supplement the same.

27. It is well-settled that the
superior courts while exercising their
jurisdiction under Articles 226 or 32 of the
Constitution of India ordinarily do not
direct
an
employer
to
prescribe
a
qualification for holding a particular post."

22. Similar view has also been
taken by this Court in the case of Manoj
Kumar Singh and Others Vs. State of U.P.
and Others, 2014 (9) ADJ 659 (DB) (LB)
(vide paragraphs-36, 37, 38, 40, 47 and
48). The Division Bench in the case of
Manoj Kumar Singh (supra) while coming
to the aforesaid conclusion also relied upon
the judgment of Hon'ble Supreme Court in
the
case
of
District
Collector
and
Chairman, Vizianagaram Social Welfare
Residential School Society and another Vs.
M. Tripura Sundari Devi, (1990) 3 SCC
655), P.M. Latha and Another Vs. State of
Kerla and Others (2003) 3 SCC 541 and
Mohd. Shohrab Khan Vs. Aligarh Muslim
University (2009) 4 SCC 555."

20. In the instant case, as noticed
above,
the
petitioner
has
failed
to
demonstrate that the course and syllabus
which he had studied in three years
Diploma in Electrical and Electronics
Engineering is identical to the syllabus of
Diploma in Electrical Engineering.
386 INDIAN LAW REPORTS ALLAHABAD SERIES

21. The reliance placed by the
petitioner upon the judgment of Delhi High
Court in the case of Ms. Nisha Vs. Union
of India and Others in W.C. (C) 6100/2012
&
CM
No.16465/2012
is
misplaced
inasmuch as in the said case the Court has
obtained a report from two members
committee and thereafter proceeded to
consider that the syllabus and course
contents in the degree of B.Tech. Electrical
and Electronics are equivalent to the degree
of B.Tech. Electrical.

22. The judgment of Ms. Nisha
(supra) has been rendered in different
factual backdrops inasmuch as in the case
in hand, necessary pleading that contents
and syllabus of three years in Diploma
Electrical and Electronics Engineering are
identical to three years Diploma in
Electrical Engineering are lacking.

23. In this view of the fact the
judgment of Ms. Nisha (supra) is of no
help to the petitioner.

24. It is relevant to note that merely
because the petitioner had appeared in the
examination and was called for document
verification does not mean that he has the
vested right to be appointed till he satisfies
all eligibility criteria including essential
qualification.

25. As in the instant case, the
petitioner admittedly possesses three years
Diploma in Electrical and Electronics
Engineering and does not have three years
Diploma
in
Electrical
Engineering,
therefore, this Court does not find merit in
the writ petition.

26. Accordingly, the writ petition
lacks merit and is dismissed with no order
as to costs.
----------
(2022)04ILR A386
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2022

BEFORE

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

Writ A No. 18664 of 2021

Anoop Kumar Dubey ...Petitioner
Versus
State of U.P & Ors. ...Respondents

Counsel for the Petitioner:
Smt. Savita Dubey, Sri R.S. Dubey

Counsel for the Respondents:
C.S.C.

A. Service Law - Transfer - Violation of
transfer policy - Scope of interference by
the court - Transfer, when can be
interfered with - Principle laid down -
Held, the Court cannot interfere with the
transfer
matter
as
the
Government
servant has no vested right to continue at
a place of his choice. The Government can
transfer
the
officer/employee
in
the
administrative exigency and in public
interest - However, if a transfer is made
against the executive instructions or
transfer policy, the competent authority
must record brief reason in the file for
deviating from the transfer policy or
executive instructions and the transfer
must be necessary in the public interest or
administrative exigency. (Para 12)
Writ petition dismissed .(E-1)
List of Cases cited :-
1. B. Varadha Rao Vs St. of Karn. & ors.; (1986)
4 SCC 131
2. Shilpi Bose (Mrs) & ors. Vs St. of Bihar & ors.;
1991 Supp (2) SCC 659
3.U.O.I. & ors. Vs S.L. Abbas; (1993) 4 SCC 357