# Brij Raj Krishan v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1716
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-28
- **Case number:** Special Appeal No. 538 of 2018
- **Bench:** Bharati Sapru, Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-raj-krishan-v-state-of-u-p-ors-45050
- **Pages:** 6

## Headnote

Technical (Fourth Amendment) Service Rules,
2014 - Part time training of the appellant
cannot be covered and considered in the
category of 'Working Experience' in terms of
advertisement issued for the post of Regional
Inspector (Tech.). (Para 27)

Certificates of requisite qualification submitted
by the appellant were issued after the last date
of
submission
of
application.
Moreover,
appellant had undertaken training on part time
basis, which could not be treated at par to the
candidates who had undertaken full time
training
especially
when
there
was
a
Government Order as well as the decision of
the Commission stating that the part time
working and work without remuneration would
not be treated as an experience under the
relevant Rules. (Para 23, 24)

Appeal dismissed. (E-4)

Present appeal is against judgment and
order
dated
07.05.2018,
passed
by
learned Single Judge in Writ-A No. 10164
of 2018.

## Text

1 All. Kundan Singh Vs. State of U.P. & Ors.
1717
petitioner chose not to exercise the liberty
granted by the Court, but the appellant
herein file a writ petition which is almost
verbatim of the same filed earlier. The
aforesaid facts apart from the fact that the
respondent no. 3 is occupying the post of
Vice Chancellor, which is not under
challenge, but his appointment to the post
of Associate Professor and Professor are
under challenge which were held by him
in 2003 and 2004, raises enough suspicion
in absence of any fact that the writ petition
was motivated and appears to be a proxy
petition for extraneous considerations.

31. No other point was argued by the
Appellant.

32. Considering the entire factual
matrix, the judgment of the learned Single
Judge, and the arguments raised by the
counsel
for
the
appellant
and
the
respondents, we do not find any infirmity
or illegality in with the impugned
judgment of the learned Single Judge.

33. For the reasons stated herein
above the special appeal lacks merit and is
hereby dismissed.
----------
(2020)1ILR 1716

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2019

BEFORE
THE HON'BLE BHARATI SAPRU, J.
THE HON'BLE SAURABH SHYAM SHAMSHERY, J.

Special Appeal No. 538 of 2018

Brij Raj Krishan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri Sanjay Kumar Singh,
Sri Bhuwan Raj, Sri Ravi Prakash

Counsel for the Respondents:
C.S.C., Sri Avanish Tripathi, Sri M.N. Singh

A. Service - Appointment/Recruitment -
Eligibility criteria - U.P. Transport Subordinate
Technical (Fourth Amendment) Service Rules,
2014 - Part time training of the appellant
cannot be covered and considered in the
category of 'Working Experience' in terms of
advertisement issued for the post of Regional
Inspector (Tech.). (Para 27)

Certificates of requisite qualification submitted
by the appellant were issued after the last date
of
submission
of
application.
Moreover,
appellant had undertaken training on part time
basis, which could not be treated at par to the
candidates who had undertaken full time
training
especially
when
there
was
a
Government Order as well as the decision of
the Commission stating that the part time
working and work without remuneration would
not be treated as an experience under the
relevant Rules. (Para 23, 24)

Appeal dismissed. (E-4)

Present appeal is against judgment and
order
dated
07.05.2018,
passed
by
learned Single Judge in Writ-A No. 10164
of 2018.

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Heard Shri. S.K. Singh, learned
counsel for the appellant, Shri. Avanish
Tripathi and learned Standing Counsel for
respondents.

2. The present special appeal is
preferred against the judgment and order
dated 07.5.2018 passed by the learned
Single Judge in Writ-A No.10164 of 2018,
whereby the said writ petition filed by the
petitioner-appellant has been dismissed.
1718 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The appellant-petitioner had
preferred the writ petition before the
learned Singe Judge wherein following
reliefs were sought:

"(i) A writ order or direction in
the nature of mandamus directing the
respondent no.3 to allow the petitioner to
appear in practical examination and
further examination which is going to be
scheduled
on
25.4.2018,
26.4.2018,
27.4.2018 and 28.4.2018 by treating the
training
certificate
of
petitioner
in
consonance with the qualification as being
so enumerated in sub para-3 of Cause 11
of the advertisement.

(ii) A writ, order or direction in
the nature of which this Hon'ble Court
may deem fit and proper under the
circumstances of the case.

(iii) Award cost to the humble
petitioner throughout of the present writ
petition."

4. Briefly the facts which are
relevant for the disposal of the present
special appeal are as follows:

i. The respondent no.3 (U.P.
Public Service Commission, (hereinafter
referred to as "respondent no.3") issued an
advertisement dated 13.12.2014 bearing
No.A-5/E-1/2014 for the post of Regional
Inspector (Tech).

ii. Clause 11 of the said
advertisement
prescribed
Essential
Qualification for the posts of Regional
Inspector (Tech) Transport Department in
accordance with the U.P. Transport
Subordinate
Technical
(Fourth
Amendment) Service Rules 2014. For
reference, the said essential qualifications
are mentioned hereinafter:

Clause
11:
Educational
Qualifications: Mandatory: (1) Essential to
pass High Schools Examination of the
Board of High School and Intermediate
Education,
Uttar
Pradesh
or
an
examination
recognized
by
the
Government as equivalent there to and

(2) (i) A diploma in Automobile
Engineering (3 years course) or

(ii) A diploma in Mechanical
Engineering awarded by the State Board of
Technical Education (3 years Course) or

(iii) Any qualification in either
of
the
above
discipline
declared
equivalent, by the Central Government or
State Government, and

(3) Working experience of at
least one year in a reputed automobile
workshop which undertakes repairs of
both light motor vehicles, heavy goods
vehicle
and
heavy
passenger
motor
vehicles fitted with petrol and diesel
engine, and

(4) Must hold a driving license
authorizing him to drive motor cycle,
heavy goods vehicle and heavy passenger
motor vehicles;

(5)
Must
have
thorough
knowledge of Hindi language written in
Devanagari script.

5.

The
petitioner-appellant
in
pursuance
of
the
abovementioned
advertisement submitted online application
on 29.1.2015 wherein he had mentioned
that he possessed all the requisite essential
educational
qualifications
including
''Working experience of at least one year'
in a reputed automobile workshop which
undertakes repairs of both light motor
vehicles, heavy goods vehicle and heavy
passenger motor vehicles fitted with petrol
and diesel engine.

6. In the application form, the
petitioner-appellant had also given a
declaration "that all the entries/statement
1 All. Brij Raj Krishan Vs. State of U.P. & Ors.
1719
made in the application are true complete
and correct to the best of my knowledge
and belief".

7. The petitioner-appellant appeared
in the written test on 08.11.2015. Almost
after two years, the respondent No.3,
published a notification dated 14.7.2017,
whereby it was directed that the applicants
who had appeared in the examination for
the post of Regional Inspector (Technical)
2014 are required to download the
application form available on the website
of the Commission and send the filled
form along with all the certificates of the
essential educational qualifications to the
Commission.

8. Accordingly, the petitionerappellant despatched the filled form along
with all the certificates. The petitioner also
annexed a working experience certificate
of a reputed automobile work shop. The
certificate was dated 16.5.2016 issued by
the Ghaziabad Automobiles. For reference,
the contents of the said certificate is
reproduced hereinafter:

"TO WHOM SO EVER IT MAY
CONCERN "This is to certify that Sh. Brijraj
Krishan S/o Sh. Maharaj Krishan R/o B-7 G F
Parsvnath
Paradise,
Mohan
Nagar,
Ghaziabad (U.P.) who is an employee of RTO
office Ghaziabad has taken part time but full
fledged training as Motor Mechanic in the
evening session w.e.f. 07/10/2011 to till date
without any remuneration.

He has submitted duly acquired
permission
from
department
in
the
workshop. He had good knowledge of
Motor Vehicle repairs Overhauling and
inspection of both light motor vehicle,
heavy goods vehicle & heavy passenger
motor vehicles fitted with Petrol & Diesel
Engines.

We wish him all success in life &
profession.

For:Ghaziabad
Automobiles

Auth.Signatory"

9. The respondent no.3 on 12.4.2018
issued a list of candidates who were found
to be eligible after scrutinising their
records for practical test. However, the
name of the petitioner-appellant was found
missing in the said list. The petitionerappellant made a querry before the
Commission and sought specific reasons
for rejection of his application. The
Commission provided an E-mail dated
12.4.2018 communicating the reply from
the respondent no.3, which stated:

''FOR THE ABOVE QUESTION
KINDLY INFORM YOU THAT YOU
HAVE NOT FULFIL THE ESSENTIAL
QUALIFICATION THAT MENTIONED
ADVERTISEMENT PARA NO-11 SUB
PARA-3' (sic)

This means that the petitioner did not
possess the required working experience
of at least one year in a reputed automobile
shop.

10. In these circumstances, the
petitioner-appellant
approached
before
learned Single Judge by way of filing the
writ petition and sought reliefs as
mentioned in paragraph 3 above.

11. Counter and rejoinder affidavits
were exchanged before the learned Single
Judge. In the counter affidavit filed on
behalf of the respondent no.3, it was
specifically mentioned that the petitionerappellant had part time experience of
repairing
work
under
Ghaziabad
Automobile without any remuneration,
therefore, the petitioner did not hold
1720 INDIAN LAW REPORTS ALLAHABAD SERIES
essential qualification no.3, in terms of
Clause 11 of the advertisement, therefore,
his candidature was rejected by the
respondent no.3.

12. Reliance was also placed in the
counter affidavit on the letter dated
08.5.2000 and also the decision of the
Commission taken in its meeting held on
31.8.2001 that the part time work and any
work done without any remuneration
could not be treated as an experience
within the meaning of U.P. Transport
(Subordinate Technical Service Rules,
1980) as amended.

13. Rejoinder affidavit was filed
before the learned Single Judge, wherein it
was reiterated that the petitioner- appellant
fulfilled all the pre-requisite qualifications
seeking appointment on the post of
Regional Inspector (Tech). The petitionerappellant had also filed an amendment
application before the learned Single
Judge whereby the letter of Transport
Commissioner dated 08.5.2000 was also
challenged.

14. The learned Single Judge after
considering the submissions made by the
parties as well as the material available on
record, dismissed the writ petition vide
judgment and order dated 07.5.2018 and
held as under:

"In the facts and circumstances
of the case, this Court is of the view that
the experience certificate dated 16.5.2016
(page '20' of the paper book) and
13.4.2018 (page '41' of the paper book)
both being of later date than last date of
the submission of the application form
cannot be taken into consideration to hold
that the petitioner possessed requisite
qualification on the date of submission of
the application form. Challenge to the
communication dated 8th May, 2000 of the
Transport Commissioner to the Secretary,
Public Service Commission is, therefore,
of no relevance."

15. In these circumstances, the
appellant-petitioner has filed the present
special appeal, questioning the judgment
and order dated 07.5.2018 passed by the
learned Single Judge.

16. Counter and rejoinder affidavits
have been exchanged.

17. In the counter affidavit, the
respondent no.3 had specifically stated that
the post of Regional Inspector (Tech)
demands that persons selected on the said
post must possess requisite and perfect
knowledge of work and maintenance of
the machine required to be operated. The
intent behind experience of one year
regular work was to have complete
knowledge which could not be achieved
while working as part time trainee by the
incumbent.

18. In the rejoinder affidavit, the
appellant has reiterated and reaffirmed the
grounds and averments mentioned in the
special appeal and stated that experience
certificate of the appellant was genuine.
Remuneration or no remuneration does not
in any way or in any manner renders the
experience
certificate
obtained
by
appellant as nugatory. Appellant had an
experience of more than 1 year which is
self evident from the certificate appended.

19. Shri. S.K. Singh, learned counsel
appearing on behalf of the appellant
vehemently argued that the appellant took
part time training from the Ghaziabd
Automobiles, and the training was full
1 All. Brij Raj Krishan Vs. State of U.P. & Ors.
1721
fledged training as motor mechanic in the
evening session (5.30 to 8.30 p.m. daily
and full time on Sunday) w.e.f. 7.10.2011
to 16.5.2016 without any remuneration. He
has also relied upon the certificate issued
by the Ghaziabad Automobiles dated
16.5.2016, wherein it was certified that the
appellant had good knowledge of motor
vehicles
repairs,
overhauling
and
inspection of both light motor vehicle and
heavy goods vehicle and heavy passenger
motor vehicles fitted with petrol and diesel
engines.

20. Learned counsel for the appellant
further submitted that for the purpose of
training the department had granted
requisite permission and the training
period was more than one year as required
for the purpose of selection. Even though
it was part time, it could not be said that
the appellant had not gained adequate
experience in that field. The advertisement
had not distinguished the experience
certificate on the basis of full time or part
time, therefore, the rejection of his
candidature was not correct.

21. Per contra, learned Standing
Counsel has opposed the submissions
made by the learned counsel for the
appellant on the ground that the experience
certificate required under the rules was to
be based on the full fledged training and
the certificate based on part time training
would not be considered to be sufficient
for essential educational qualifications. He
placed reliance on the Government Order
dated 08.5.2000 as well as the decision of
the Commission taken on 31.8.2001 to the
effect that the part time work and work
done without remuneration would not be
treated as experience within the meaning
of Uttar Pradesh Transport Rules, 1988 as
amended. He further submitted that last
date of submission of application was
29.1.2015,
whereas
the
certificate
submitted by the appellant-petitioner was
dated 16.5.2016 and 13.4.2018, therefore,
appellant was not qualified on the date of
submission of form.

22.

We have
considered
the
submissions made by the learned counsel
for the rival parties and perused the record.

23. One of the essential educational
qualifications for the post of Regional
Inspector (Technical) was "(3) Working
experience of at least one year in a reputed
automobile workshop which undertakes
repairs of both light motor vehicles, heavy
goods vehicle and heavy passenger motor
vehicles fitted with petrol and diesel
engine." The appellant had submitted two
documents first was the certificate dated
16.5.2016
issued
by
the
Ghaziabad
Automobiles which certifies that the
appellant-petitioner had taken part-time
but
full
fledged
training
as
motor
mechanic in the evening session w.e.f.
7.10.2011
till
date
without
any
remuneration and second was a certificate
dated 13.4.2018 issued by the Ghaziabad
Automobiles
which
states
that
the
petitioner had good knowledge of motor
vehicle repairs, overhauling and inspection
of both light motor vehicles, heavy goods
vehicles and heavy passenger motor
vehicles fitted with petrol and Diesel
engines. Both of these certificates were
issued after the last date of submission of
application form which was 03.2.2015,
therefore, the learned Single Judge has
rightly held that the petitioner did not
possess requisite experience as on the last
date of submission of application form.

24. The appellant had undertaken
training on part time basis, which could
1722 INDIAN LAW REPORTS ALLAHABAD SERIES
not be treated at par to the candidates who
had
undertaken
full
time
training
especially when there was a Government
Order dated 8.5.2000 as well as the
decision
of
the
Commission
dated
31.8.2001 to the contrary that the part time
working and work without remuneration
would not be treated as an experience
under the relevant rules.

25. Learned counsel for the appellant
has failed to show any material that the
part time training is equivalent to the full
time training.

26. The purpose of one year regular
training is that the person must possess
requisite and perfect knowledge of work
and maintenance of the machine required
to be operated. There is no challenge to
any
of
the
requisite
essential
qualifications.

27. Having heard learned counsel for
the parties and having perused the material
on record as well as the impugned
judgment and order passed by the learned
single judge, we are of the considered
opinion that one year part time work that
too without remuneration in Ghaziabad
Automobiles undertaken by the appellant
is nothing but a training acquired by the
appellant with the firm, cannot be covered
and
considered
in
the
category
of
''Working Experience' in terms of the
advertisement. As such there is no
illegality in the impugned judgment and
order of the learned Single Judge, which
calls for no interference by this Court and
the appeal deserves to be dismissed.

28. In view of the above, the appeal
is dismissed. No costs.
----------
(2020)1ILR 1721
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.12.2019

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Bench No. 988 of 2013 (Now S/S)

Jai Prakash Pal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Suresh Chandra Yadava

Counsel for the Respondents:
C.S.C.

A. Service - Promotion - Uttar Pradesh
Secretariat Service Rules, 1983: Rules
3(g), 5, 9, 11(i) & (ii), 12; Uttar Pradesh
State Government Servants Confirmation
Rules, 1991: Rule 5(1); Uttar Pradesh
Government Servants Probation Rules,
2013 (Amended Probation Rules, 2016):
Rule 2, 4, 5 - Probation or confirmation will
not be necessary if the source of recruitment
for the post in question is promotion only and
such promotion has been made following the
due procedure of law. (Para 28 & 32)

B. General law Vs. Specific law: When
there is a conflict between specific law and
general law, specific law shall have overriding
effect upon the general law. Therefore,
Confirmation Rules, 1991, Probation Rules,
2013 (Amended Rules, 2016) shall have an
overriding effect on Rule 11 of the Rules, 1983.
(Para 29 & 32)

C. Doctrine of 'reading down' discussed:
Rule of reading down is to be used for the
limited purpose of making a particular
provision workable and to bring it in
harmony with other provisions of the law
- Reading down of Rule 5 of Rules, 1983 has
been applied for the present case as it is found
inconsistent with provisions of Probation Rules,
2013 and Confirmation Rules, 1991 as well as
unworkable as it restricts duly promoted