# State of U.P. & Anr v. Aakash Verma & Ors. 796 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 8 ILRA 795
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021
- **Case number:** Special Appeal Defective No. 244 of 2021
- **Bench:** Ritu Raj Awasthi, Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-aakash-verma-ors-796-indian-law-reports-allahabad-series-47312
- **Pages:** 16

## Headnote

A. Service Law - Challenge to recruitment
- Institutional exclusivity - Uttar Pradesh
Police Ministerial, Accounts, Confidential
Assistant
Cadre
Service
(First
Amendment) Rules, 2016- U.P. Police
Ministerial,
Accounts,
Confidential
Assistant Cadres Service (3rd Amendment)
Rules, 2020.

When a candidate does not possess the
essential
qualification,
but
has
only
preferential qualification, it cannot be said
that he/she is to be held eligible for
appointment on the post for which a
qualification is prescribed as an essential
qualification. There is nothing in Rules, 2016
which stipulates that possession of higher
qualification would presuppose acquisition of the
essential qualification of possessing 'O' Level
certificate from DOEACC/NIELIT. In absence of
such a stipulation, the hypothesis that the
higher qualification presupposes the acquisition
of lower essential qualification cannot be
accepted. (Para 29)

In absence of challenge to the Rules and the
advertisement and having applied in pursuance
of the advertisement, it was not open for the
respondents to come before the Court with the
prayer to hold them eligible for the aforesaid
three posts as they possessed the preferential
qualification, but not the essential qualification.
(Para 29)

The recruitment must be completed as per
the existing Rules. Rules, 2016 clearly
stipulate the essential and preferential
qualification. (Para 39)

B.
Scope
of
Judicial
Review
-
The
prescription of qualification for a post, is a
matter of recruitment policy. The State or
the employer is empowered to prescribe
the
qualification
as
a
condition
of
eligibility. The Court while exercising the
function of judicial review, cannot expand
upon ambit of prescribed qualification.
(Para 31, 40)

Learned Single Judge has over stepped the
power
of
judicial
review
while
drawing
equivalence of 'O' Level certificate in Computer
Applications from DOEACC/NIELIT with B.Tech,
B.Sc (CA) and BCA courses. The statutory rules
not only prescribed the 'O' Level certificate in
Computer Applications, but it also prescribed the
institute from where the candidate should obtain
the certificate as an essential qualification for
the three posts in question. (Para 33)

Once the statutory Rules prescribe for having 'O'
Level certificate from this particular institute, by
exercising judicial review, the Court cannot
substitute its own view to hold that the higher
qualification would certainly include the 'O' Level
certificate issued by DOEACC/NIELIT. It has
been wrongly held that higher qualification held
by the respondents would be inclusive of 'O'
Level certificate and, therefore, the finding that
the respondents meet the es

## Text

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8 All. State of U.P. & Anr. Vs. Aakash Verma & Ors.
795
incident. PW1 Matru has also deposed
about the aforesaid fact in the court.

28. During one month before the incident,
there is no evidence on file that there was any
communication between the deceased and the
prosecution witnesses. The deceased was sent
to her in-laws house on the assurance of good
behaviour by her husband and father-in-law.
After coming there to her in-laws house, there is
no evidence on record so as to ascertain that the
deceased was ill-treated by the appellant no. 2,
hence the factum of soon before death is also
not established in the present case.

29. Upshot of the above discussion is that
the husband, mother-in-law and father-in-law of
the deceased Bitola have already died, only
appellant no. 2 Ram Avtar is surviving and
contesting the appeal. He is the elder brother of
the Ram Baran (husband of the deceased) and
there is no specific allegation against the
appellant no. 2 Ram Avtar regarding demand of
dowry and harassment. The alleged letter
demanding dowry was written by the husband
of the deceased Ram Baran. PW2 Satya
Narayan has specifically stated in his crossexamination that appellant no. 2 Ram Avtar
used to oppose the alleged demand of dowry by
husband (now deceased) of the deceased Bitola.

30. It is settled law of the Hon'ble Apex
Court that in order to convict an accused for an
offence under Section 304-B of I.P.C.,
prosecution is obliged to establish four
ingredients beyond reasonable doubt. So far as
the facts of the present case are concerned,
prosecution has been able to establish that
deceased Bitola died within seven years of her
marriage, she died due to bodily injuries or
other than normal circumstances but the
prosecution has failed to prove the fact that
soon before her death deceased Bitola was
subjected to cruelty or harassment by appellant
no. 2 Ram Avtar in pursuance of demand of
dowry.

31. In view of the above facts and
circumstances, I am of the considered opinion
that appellant no. 2 is entitled to benefit of
doubt, accordingly the appeal of the appellant
no. 2 Ram Avtar succeeds and deserves to be
allowed.

32. Appeal is accordingly, allowed.

33. The judgment and order dated order
dated 20.02.1992 passed by 1st Additional
Sessions Judge, Allahabad, in S.T. No. 361 of
1989 (State Vs Ram Baran and others), under
Sections 147, 304B/201 I.P.C., P.S.- Naini,
District- Allahabad, qua the appellant no. 2
Ram Avtar is set-aside. Appellant no. 2 is
acquitted of the charges leveled against him.
His bail bonds are canceled and sureties are
discharged.

34. Copy of this judgment be certified to
the court below for compliance. Lower court
record be transmitted to the District Court,
concerned.
----------
(2021)08ILR A795
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE DINESH KUMAR SINGH, J.

Special Appeal Defective No. 244 of 2021
connected with
Special Appeal Defective No. 243 of 2021
and other connected cases

State of U.P. & Anr. ...Appellants
Versus
Aakash Verma & Ors. ...Respondents
796 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
C.S.C.

Counsel for the Respondents:
Lalta Prasad Misra

A. Service Law - Challenge to recruitment
- Institutional exclusivity - Uttar Pradesh
Police Ministerial, Accounts, Confidential
Assistant
Cadre
Service
(First
Amendment) Rules, 2016- U.P. Police
Ministerial,
Accounts,
Confidential
Assistant Cadres Service (3rd Amendment)
Rules, 2020.

When a candidate does not possess the
essential
qualification,
but
has
only
preferential qualification, it cannot be said
that he/she is to be held eligible for
appointment on the post for which a
qualification is prescribed as an essential
qualification. There is nothing in Rules, 2016
which stipulates that possession of higher
qualification would presuppose acquisition of the
essential qualification of possessing 'O' Level
certificate from DOEACC/NIELIT. In absence of
such a stipulation, the hypothesis that the
higher qualification presupposes the acquisition
of lower essential qualification cannot be
accepted. (Para 29)

In absence of challenge to the Rules and the
advertisement and having applied in pursuance
of the advertisement, it was not open for the
respondents to come before the Court with the
prayer to hold them eligible for the aforesaid
three posts as they possessed the preferential
qualification, but not the essential qualification.
(Para 29)

The recruitment must be completed as per
the existing Rules. Rules, 2016 clearly
stipulate the essential and preferential
qualification. (Para 39)

B.
Scope
of
Judicial
Review
-
The
prescription of qualification for a post, is a
matter of recruitment policy. The State or
the employer is empowered to prescribe
the
qualification
as
a
condition
of
eligibility. The Court while exercising the
function of judicial review, cannot expand
upon ambit of prescribed qualification.
(Para 31, 40)

Learned Single Judge has over stepped the
power
of
judicial
review
while
drawing
equivalence of 'O' Level certificate in Computer
Applications from DOEACC/NIELIT with B.Tech,
B.Sc (CA) and BCA courses. The statutory rules
not only prescribed the 'O' Level certificate in
Computer Applications, but it also prescribed the
institute from where the candidate should obtain
the certificate as an essential qualification for
the three posts in question. (Para 33)

Once the statutory Rules prescribe for having 'O'
Level certificate from this particular institute, by
exercising judicial review, the Court cannot
substitute its own view to hold that the higher
qualification would certainly include the 'O' Level
certificate issued by DOEACC/NIELIT. It has
been wrongly held that higher qualification held
by the respondents would be inclusive of 'O'
Level certificate and, therefore, the finding that
the respondents meet the essential eligibility
condition, is not correct. (Para 35)

Administrative order cannot supplant the
statutory provisions and when a particular
qualification
is
prescribed
as
essential
qualification, the same cannot be supplanted by
an administrative order without amending the
rules. (Para 37)

C. Doctrine of Precedent - It is an
established practice that if a Bench of same
strength does not agree with the judgment
rendered by another Bench, the matter should
be referred to the Larger Bench. In the present
case,
the
learned
Single
Judge
without
adverting to the judgments and orders passed
by the earlier Benches dismissing the writ
petitions, has allowed the writ petitions. (Para
38)

D. Doctrine of Estoppel - The respondents in
their
case
filed
writ
petitions
after
the
recruitment process was completed in the year
2019. There is no challenge to the statutory
rules. The respondents had applied in pursuance
of
the
advertisement
dated
26.12.2016,
therefore, they cannot be allowed later on to
challenge the recruitment on the ground of
institutional exclusivity. There is nothing wrong
8 All. State of U.P. & Anr. Vs. Aakash Verma & Ors.
797
on part of State in prescribing 'O' Level
certificate from the premier institute i.e. NIELIT
in statutory rules. (Para 40)

Special appeals allowed. (E-3)

Precedent followed:

1. Zahoor Ahmad Rather & ors. Vs Sheikh
Imtiyaz Ahmad & ors., (2019) 2 SCC 404 (Para
10)

2. Deepak Singh & ors.Vs St. of U.P. & ors.,
2020 (1) ALJ 596 (FB) (Para 12)

3.
The
Maharashtra
Public
Service
Commission
through
its
Secretary
Vs
Sandeep Shriram Warade & ors. (2019) 6
SCC 362 (Para 17)

4. Prakash Chandra Meena & ors. Vs St. of
Rajasthan & ors., (2015) 8 SCC 484 (Para 17)

5. St. of Pun. & ors. Vs Anita & ors., (2015) 2
SCC 170 (Para 17)

6. P.M. Latha & anr. Vs St. of Kerala & ors.
(2003) 3 SCC 541 (Para 17)

7. Deepak Sing & ors. Vs St. of U.P. & ors.,
2020 (1) ALJ 596 (FB) (Para 17)

8. Writ Petition No. 20505 (SS) of 2020,
Judgment
and
order
dated
11.11.2020
passed by a coordinate Bench of this Court
(Para 17)

9. Kartikey Vs St. of U.P. & ors., Judgment in
Special Appeal No. 229 of 2016 (Para 17)

10. Mohd. Riazul Usman Gani & ors. Vs District
and Sessions Judge, Nagpur & ors., (2000) 2
SCC 606 (Para 22)

11. St. of Haryana & anr. Vs Abdul Gaffar Khan
& anr., (2006) 11 SCC 153 (Para 23)

12. Jyoti K.K. & ors. Vs Kerala Public Service
Commission & ors., (2010) 15 SCC 596 (Para
24)

13. St. of U.K & ors. Vs Deep Chandra Tiwari &
ors., (2013) 15 SCC 557 (Para 25)
14. Municipal Corporation of Greater Bombay &
ors. Vs Thukral Anjali Deokumar & ors., (1989)
2 SCC 249 (Para 26)

15. B.L. Asawa Vs St. of Raj. & ors., (1982) 2
SCC 55 (Para 26)

16. Parmar Alpaben Sanabhai Vs St. of Guj.,
2004 (4) LLN 919 (Para 26)

17. Shri Chaman Singh & anr. Vs Srimati
Jaikaur, (1969) 2 SCC 429 (Para 27)

18. S.S. Grewal Vs St. of Pun. & ors., 1993
Supp. (3) SCC 234 (Para 27)

19. Zile Singh Vs St. of Haryana & ors., (2004) 8
SCC 1 (Para 27)

20. Securities and Exchange Board of India Vs
Ajay Agarwal, (2010) 3 SCC 765 (Para 27)

21. St. of Pun. & ors. Vs Anita & ors., (2015) 2
SCC 170 (Para 30)

22.
Secretary,
Uttar
Pradesh
Subordinate
Service & 2 ors. Vs Indra Prakash Patel, Special
Appeal Defective No. 440 of 2021, decided on
07.07.2021 (Para 37)

Present Special Appeals arise out of
judgment and order dated 26.03.2021,
passed by learned Single Judge.

(Delivered by Hon'ble Ritu Raj Awasthi, J.
&
Hon'ble Dinesh Kumar Singh, J.)

Order
on
C.M.
Application
Nos.84026 of 2021, 84021 of 2021, 84029
of 2021 and 84034 of 2021

1. Heard.

2. These special appeals have been
filed with a reported delay of 87 days as on
the date of filing. Appeals are accompanied
with applications for condonation of delay.
Cause shown in the affidavits filed in
support of the applications for condonation
798 INDIAN LAW REPORTS ALLAHABAD SERIES
of delay is sufficient. Even otherwise,
considering the Supreme Court's order
dated
27.04.2021,
passed
in
Misc.
Application No.665 of 2021 in SMW (C)
No.3 of 2020; Cognizance for Extension of
Limitation Vs. XXXX, we are satisfied that
the delay in filing the appeals is liable to be
condoned.

Accordingly,
the
applications
for
condonation of delay are allowed and the
delay in filing the appeals is condoned.

3. Order on Memo of Special Appeal

Batch of these four special appeals
(Intra-court
appeals)
have
been
filed
impugning the common judgement and order
dated 26.3.2021 passed in Writ Petition
Nos.20385 (SS) of 2019, 20505 (SS) of 2020,
24584 (SS) of 2019 and 20251 (SS) of 2019

Writ petitions were filed for
direction to the Uttar Pradesh Police
Recruitment
and
Promotion
Board,
(hereinafter referred to as ''appellant Board')
to treat the petitioners (respondents herein)
qualified and eligible for appointment on the
posts
of
Sub-Inspector
(Confidential),
Assistant Sub-Inspector (Ministerial) and
Assistant Sub-Inspector (Accounts) and,
further direction to consider the candidature
of
the
petitioners-respondents
for
appointment on these posts while considering
the
degree/diploma
possessed
by
the
petitioners-respondents as equivalent to 'O'
Level
certificate
issued
by
the
DOEACC/NIELIT.

4.

Facts
of
Special
Appeal
(Defective) Nos.243 of 2021, 244 of 2021
and 246 of 2021, in brief, are as under:-

(i)
The
appellants
issued
advertisement dated 26.12.2016 inviting
applications from candidates to make
recruitment to 136 posts of Sub-Inspector
(Confidential), 303 posts of Assistant SubInspector (Ministerial) and 170 posts of
Assistant Sub-Inspector (Accounts). Last
date of submission of application forms
was 18.2.2017.

(ii) As per the advertisement, the
following were the essential qualifications
for three posts:-"

"(i) Assistant Sub-Inspector of
Police (Ministerial):

(a) Bachelor Degree from a
University established by law in India or
equivalent qualification recognised by the
Government.

(b) Hindi typing with speed of at
least 25 words per minute and English
Typing with speed of at least 30 words per
minute (Uni-code based using in-script-key
board or as prescribed by the Head of
Department).

(c) Certificate of 'O' level in
Computer from DOEACC/NIELIT Society.

(ii) Assistant Sub-Inspector of
Police (Accounts):

(a)
Bachelor
Degree
in
Commerce or Post-Graduate Diploma in
Accountancy
from
an
University
established by law in India or equivalent
qualification
recognised
by
the
Government.

(b) Hindi Typing (Uni-code based
using in-script-key board or as prescribed
by the Head of Department) with speed of
at least 15 words per minute.

(c) Certificate of 'O' level in
Computer from DOEACC/NIELIT Society.

(iii) Sub-Inspector of Police
(Confidential):

(a) Bachelor Degree from a
University established by law in India or
equivalent qualification recognised by the
Government.

(b) Hindi Typing with speed of at
least 25 words per minute and English
8 All. State of U.P. & Anr. Vs. Aakash Verma & Ors.
799
Typing with speed of at least 30 words per
minute (Uni-code based using in-script-key
board or as prescribed by the Head of
Department).

(c) Hindi shorthand dictation with
a speed of minimum 80 words per minute.

(d) Certificate of 'O' level in
Computer from DOEACC/NIELIT Society."

(iii) It was further provided in the
advertisement that following would be
preferential qualifications for the aforesaid
posts:-

"(a) Higher certification from
DOEACC/NIELIT;

(b) Graduation in Law from any
institute or college or university recognized
by University Grants Commission;

(c) Candidate had to submit
preferential qualification for at least two
years in the Territorial Army;

(d) Possess of 'B' Certificate of
National Cadet Corps."

(iv) The recruitment was to be made
as per the provisions of Uttar Pradesh Police
Ministerial, Accounts, Confidential Assistant
Cadre Service (First Amendment) Rules, 2016
(herein after referred to as "Rules, 2016"). The
online examination was held on 22.12.2018.
The result of the examination was declared on
8.3.2019.

(v) According to the petitionersrespondents, they were declared successful in
the said written examination. After written
examination, the next stage was of document
verification and physical standard test, the
candidature of the petitioners-respondents was
rejected at this stage as they did not possess
the 'O' Level certificate issued by the
DOEACC/NIELIT.

(vi) Vide order dated 23.9.2019,
learned Single Judge has directed that the
appointments made during the pendency of the
writ petitions would be subject to the outcome
of the writ petitions.

(vii) Final result of the successful
candidates was declared on 11.7.2019 and
14.7.2019 and the recruitment process
thereafter came to an end. The selected
candidates have joined their respective
posts and fresh advertisement has also been
issued for filling up the vacancies of the
next year and unfilled vacancies of the
previous years and the recruitment process
is going on.

5. Facts of Special Appeal Defective
No.245 of 2021

In this appeal, the writ petition was
filed on 11.10.2020 after more than one
year and three months from the date of the
result of the successful candidates was
published by the Board. The following
prayer was made in the aforesaid writ
petition, which reads as under :-

"To issue a writ, order or
direction in the nature of mandamus
commanding the respondents to consider
the candidature of the petitioners for
appointment on the post of ASI-M, while
treating the degrees possessed by the
petitioners as equivalent to the O Level
certificate issued by DOEACC/NIELIT,
copies whereof are contained in Annexure
No.12, Annexure No.13, Annexure No.15,
Annexure No.16 and Annexure No.17 to
this writ petition."

6. Learned Single Judge vide
impugned judgement and order dated
26.3.2021 has allowed these writ petitions
filed by the petitioners-respondents and
directed the appellants to consider the
candidature of the petitioners-respondents
in the light of the observations made in the
judgement and allow them to participate in
the physical standard test and subsequent
800 INDIAN LAW REPORTS ALLAHABAD SERIES
selection process in pursuance of the
advertisement dated 26.12.2016.

7.

Learned
Single
Judge
has
formulated two questions for decision,
which are as under:-

" 1. Whether it is permissible for
the respondents to insist on 'O' Level
certificate issued by DOEACC/NIELIT for
appointment on the posts advertised?

2. Whether holding of basic
educational qualification of Graduation
can
presuppose
the
acquisition
of
foundational knowledge in Computer if the
syllabus of foundational knowledge of
Computer is itself covered under the course
of Graduation?

8. Learned Single Judge has held
that insistence on 'O' Level certificate
issued by the DOEACC/NIELIT is
unreasonable and the candidature of a
person cannot be rejected solely on the
ground that he or she does not possess 'O'
Level
certificate
issued
by
the
DOEACC/NIELIT.

9. In response to question no.2,
learned Single Judge has held that 'O'
Level
certificate
issued
by
the
DOEACC/NIELIT is a foundation course
in Computer and to allow only such
candidates to be appointed who have
obtained
training
from
a
particular
institute give rise to the institutional
exclusivity having no reasonable basis for
classification between the certificates
issued by DOEACC/ NIELIT and other
State established/recognized universities/
institution. It has also been held that
syllabus of 'O' Level course is entirely
covered under the syllabus of B.Tech,
B.Sc, BCA etc. i.e. the degree/diploma
course.

10. Learned Single Judge has
distinguished the judgement in the case of
Zahoor Ahmad Rather and others Vs.
Sheikh Imtiyaz Ahmad and others, (2019)
2 SCC 404 on the ground that in Zahoor
Ahmad's case, the required essential
qualification was ITI certificate and the
appellants in the said case were possessing
the Diploma in Electrical Engineering/
Electronics
and
Communication
and,
therefore, it was held that in absence of a
specific statutory rule under which holding
of higher educational could presuppose the
acquisition of lower qualification, the
higher
qualification
of
Diploma
in
Electrical Engineering/ Electronics and
Communication could not be said to
presuppose
the
required
essential
qualification of ITI certificate.

11. Learned Single Judge has further
held that in the present case, syllabus of 'O'
Level course, which is the essential
qualification as per the advertisement, is
included in B.Tech (Computer Science),
B.Sc (Computer Science) BCA etc being a
three or four years degree/diploma courses
and, the candidate would not be required to
possess
'O'
Level
course
from
DOEACC/NIELIT society, which is only a
one year foundational course. It has been
held
that
requirement
of
'O'
Level
certificate even from the candidates having
degree/diploma of B.Tech, B.Sc, BCA etc
would be highly undesirable. It has been
further held that requirement of 'O' Level
course is proper only for candidates who
possess bachelor degrees like B.A., B.Com
etc.

12. Learned Single Judge has also
distinguished the judgement of the Full
Bench of this Court in the case of Deepak
Singh and others Vs. State of U.P. and
others, 2020 (1) ALJ 596 (FB) on the
8 All. State of U.P. & Anr. Vs. Aakash Verma & Ors.
801
ground that in the said case, there was a
specific bar of excluding the candidates
holding higher degree. It was further held
that there was no material on record to
show that qualification possessed by the
petitioners therein was in same line of the
progression. It has been further held that in
the present case, the qualification possessed
by the petitioners-respondents covers the
syllabus of 'O' Level course.

13. Heard Mr. Uday Veer Singh,
learned Additional Chief Standing Counsel
for the appellants as well as Dr. L.P. Misra,
assisted by Mr. Prafulla Tewari, Ms. Ishita
Yadu and Mr. Manjeet Singh, learned
counsel for the respondents.

14. Dr. Uday Veer Singh, learned
Additional
Chief
Standing
Counsel
appearing for the appellants has submitted
that Rule 10 of the Rules, 2016 provides
certificate of 'O' Level in Computer from
DOEACC/NIELIT
as
an
essential
qualification for direct recruitment on the
post
of
Assistant
Sub-Inspector
(Ministerial)
Assistant
Sub-Inspector
(Accounts)
and
Sub-Inspector
(Confidential). The advertisement was
issued in terms of the aforesaid Rules, 2016
prescribing
essential
qualification
as
stipulated in Rule 10 of the rules 2016.
Respondents had neither challenged the
aforesaid Rules prescribing the certificate
of
'O'
Level
in
Computer
from
DOEACC/NIELIT society as an essential
qualification for appointment on the said
posts
nor
they
had
challenged
the
advertisement. Once there is a statutory
prescription
regarding
essential
qualification of possessing 'O' Level
certificate from a particular institute i.e.
DOEACC/NIELIT society and in absence
of challenge to the Rules, 2016 and the
advertisement, the learned Single Judge has
grossly erred in allowing the writ petitions
vide impugned judgement.

15. He has further submitted that
when Rule 10 of Rules, 2016 provides
essential qualifications for the posts in
question which include certificate of 'O'
Level
in
Computer
from
DOEACC/NIELIT society and the said rule
does not envisages any other qualification
as equivalent to the said qualification of
certificate of 'O' Level, the learned Single
Judge has erred in holding that possessing
the educational qualification of B.Tech,
B.Sc or BCA etc. would deem knowledge
of 'O' Level course and, therefore, the
candidates possessing B.Tech, B.Sc , BCA
etc. are held to be qualified for appointment
on the posts in question.

16. Learned counsel for the appellants
has further submitted that the statutory
rules do not provide any other qualification
equivalent to the prescribed qualification of
'O'
Level
certificate
from
DOEACC/NIELIT society as an alternate
essential
qualification
for
'O'
Level
certificate from DOEACC/NIELIT society
and the learned Single Judge by judicial
interpretation, has incorrectly and wrongly
held that possessing degree/diploma of
B.Tech,
B.Sc
or
BCA
etc.
would
necessarily include knowledge of 'O' Level
course. The learned Single Judge based on
said incorrect interpretation, has wrongly
held
respondents
to
be
eligible
for
appointment on the posts in question.

17. Learned counsel for the appellants
has also submitted that the learned Single
Judge failed to appreciate that the contents
regarding the essential qualification as
mentioned in the advertisement dated
11.4.2013 for recruitment on the post of
Computer
Operator
Grade-I
and
802 INDIAN LAW REPORTS ALLAHABAD SERIES
Programmer Grade-II are entirely different
from
the
contents
of
the
essential
qualification
as
mentioned
in
the
advertisement dated 26.12.2016 for three
posts of Sub-Inspectors. He has further
submitted that the committee formed to
consider equivalence of the qualification
for a different recruitment, does not have
any relevance or bearing to the present
recruitment in question inasmuch as the
recruitment has been completed strictly in
accordance with the statutory prescription
and
as
well
the
advertisement
for
appointment on the said three posts. It has
also been submitted that the impugned
judgement and order is against the ratio of
several judgments of the Supreme Court,
Larger Bench of this Court and coordinate
Benches of this Court, inter alia, judgments
in Zahoor Ahmad rather (supra), The
Maharashtra Public Service Commission
through its Secretary vs. Sandeep Shriram
Warade and others (2019)6 SCC 362,
Prakash Chandra Meena and others Vs.
State of Rajasthan and others (2015) 8
SCC 484, State of Punjab and others Vs.
Anita and others, (2015) 2 SCC 170, P.M.
Latha and another Vs. State of Kerala and
others (2003) 3 SCC 541, Deepak Singh
and others Vs. State of U.P. and others,
2020 (1) ALJ 596 (FB), Judgement and
order dated 11.11.2020 passed by a
coordinate Bench of this Court in Writ
Petition
No.20505
(SS)
of
2020,
Judgement in Special Appeal No.229 of
2016, Kartikey Vs. State of U.P. and
others, and few other judgements.

18. He has further submitted that the
learned Single Judge has grossly erred in
law in considering the third amendment
brought in the Rules, 2016 known as "U.P.
Police
Ministerial,
Accounts
and
Confidential Assistant Cadres Service (3rd
Amendment) Rules, 2020" (hereinafter
referred to as "Rules, 2020") which has
been brought in after the recruitment
process initiated in pursuance of the
advertisement
dated
26.12.2016
got
completed.
What
should
have
been
considered, is the existing Rules on the date
of the advertisement and not the Rules,
which
have
been
enacted
after
the
recruitment process got completed. It has
been further submitted that the impugned
judgement and order is against the principle
of judicial propriety inasmuch as in respect
of
the
same
recruitment,
coordinate
Benches of this Court have dismissed the
writ petitions filed by other similarly
placed candidate being Writ A No.11683 of
2019, 11474 of 2019, 14530 of 2019 and
Writ Petition No.20505 (SS) of 2020, vide
judgement and orders dated 2.8.2019,
5.8.2019, 19.9.2019 and 11.11.2020 relying
on the Full Bench judgement of this Court
in the case of Deepak Singh (supra) and
held that the amended rules are not
retrospective. When the advertisement,
selection and results have not been
challenged, the writ petition would not be
maintainable by the candidates who had
applied in pursuance of the aforesaid
advertisement. A coordinate Bench in its
order dated 11.11.2020 passed in Writ
Petition No.20505 (SS) of 2020 had held
that once the petitioners had applied in
pursuance of the advertisement without
challenge to the advertisement, selection
and results, the writ petition by them would
not be maintainable.

19. It has been submitted that if the
learned Single Judge was not in agreement
with the judgement/orders passed by other
coordinate Benches dismissing the writ
petitions, learned Single Judge ought to
have referred the matter for decision by the
Larger Bench. However, in the present
case, without even adverting to the
8 All. State of U.P. & Anr. Vs. Aakash Verma & Ors.
803
aforesaid judgements/orders passed by the
coordinate Benches in writ petitions in
respect of the same advertisement and same
recruitment, it was improper to have
allowed the writ petitions vide impugned
judgement and order. It has been further
submitted that the learned Single Judge has
wrongly distinguished the judgement in the
case of Zahoor Ahmad (supra) and the
judgement of the Full Bench of this Court
in the case of Deepak Singh (supra).

20. Sri L.P. Misra, learned counsel for
the respondents has submitted that the
finding recorded in the impugned judgment
that the qualifications possessed by the
respondents included the course of syllabus
of 'O' Level certificate, has not been
disputed by the appellants. He has further
submitted
that
higher
qualification
possessed by the respondents are prescribed
as preferential qualifications both in the
statutory
rules
as
well
as
in
the
advertisement. The preferential higher
qualification prescribed in the statutory
rules and, the advertisement is in the same
stream/line of education and preferential
qualification is inclusive of the course of
study
of
essential
qualification.
He,
therefore, submits that the learned Single
Judge has correctly held that since the
respondents possessed the preferential
higher qualification, it would include the
essential qualification of certificate of 'O'
Level
issued
from
DOEACC/NIELIT
society.

21. He has further submitted that in
respect of the recruitment of Computer
Operator Grade-I and Programmer Grade-II
by the U.P. Police Recruitment and
Promotion Board, Lucknow initiated in
pursuance of the advertisement dated
11.4.2013, prescribing 'O' Level certificate
from DOEACC/NIELIT Society or its
equivalent,
Police
Recruitment
Board
constituted an expert committee to examine
the issue whether the diploma/degree
holders in Computer Science would be
treated as equivalent or not to the 'O' Level
certificate issued from DOEACC/NIELIT
society.
Three
members
committee
submitted its report dated 3.3.2014 stating
that
the
Diploma/Degree
courses
of
Computer Science were inclusive of 'O'
Level
certificate
and
are
higher
qualifications. Based on the said report, the
candidates
having
Diploma/Degree
qualifications
in
Computer
Science/Computer
Applications
were
considered
for
selection
and
were
appointed as Computer Operator Grade-I
and Programmer Grade-II. It has been
further submitted that based on the expert
committee report dated 3.3.2014, Rules,
2016 have been amended known as "U.P.
Police
Ministerial,
Accounts
and
Confidential
Assistant
Cadres
Service
(Third Amendment) Rules, 2020" during
the pendency of the writ petitions before
the learned Single Judge. Now, under the
amended rules, it is provided that the
candidate
must
possess
'O'
Level
examination in Computer from NIELIT
Society of the Government of India or a
qualification
recognized
by
the
Government as equivalent thereto. He
submits that the amended Rules, 2020 are
clarificatory in nature and, therefore,
essential qualification prescribed in Rules,
2016 is to be read as essential qualification
prescribed under Rules, 2020.

22. He has further submitted that the
respondents
are
possessing
better
qualification than the minimum essential
qualification prescribed under the Rules
and, therefore, they could not have been
ousted from the consideration on the
ground that they did not possess the
804 INDIAN LAW REPORTS ALLAHABAD SERIES
essential qualification as prescribed under
the Rules. He has further submitted that the
higher
qualification
cannot
be
a
disadvantage
to
a
candidate
and
appointment cannot be denied to a person
on
the
ground
of
having
higher
qualification than the prescribed. in this
regard, he has placed reliance on the
judgement in the case of Mohd. Riazul
Usman Gani and others Vs. District and
Sessions Judge, Nagpur and others,
(2000) 2 SCC 606 (Paragraphs 20 and 21).

23. He has further said that a candidate
cannot be denied selection and appointment
merely
because
of
having
a
higher
qualification unless the higher qualification is
specifically
excluded,
or
the
higher
qualification holders are barred from offering
their candidature by statutory prescription. In
support of his submission, he has placed
reliance on the judgement in the case of State
of Haryana and another Vs. Abdul Gaffar
Khan and another, (2006) 11 SCC 153
(Paragraphs 5, 6 and 7).

24. He has also placed reliance on the
judgement of the Supreme Court in the case
of Jyoti K.K. and others Vs. Kerala Public
Service Commission and others, (2010) 15
SCC 596 (Paragraphs 8 and 9) to submit that
higher
qualification
possessed
by
the
respondents is not only a higher qualification,
but also inclusive of essential eligibility
qualification prescribed under the Rules and,
therefore, the learned Single Judge has rightly
held the respondents to be eligible for
consideration for appointment on three posts
in question.

25. He has relied on the judgement of
the Supreme Court in the case of State of
Uttarakhand and others Vs. Deep Chandra
Tiwari and others, (2013) 15 SCC 557
(Paragraph 11) to submit that the higher
qualification possessed by the respondents
being in the stream of Computer Science and
Computer Applications is of the same stream
including the course of study of 'O' Level
certificate awarded by the DOEACC/NIELIT
and, therefore, the respondents could not
have been put at disadvantageous position for
acquiring higher qualification. He has also
placed reliance on the judgment of the
Supreme Court in the case of Kartikeya
(supra) to submit that there is a presumption
of having lower qualification if one is having
a higher qualification in the same stream. He
has tried to distinguish the judgement in the
case of Zahoor Ahmad (supra) and Deepak
Singh (supra) and other judgements relied
upon by the learned counsel for the
appellants.

26. Ms. Ishita Yadu, learned counsel for
the respondents in Special Appeal No.245 of
2021 has submitted that insistence of 'O'
Level certificate issued exclusively by
DOEACC/NIELIT amounts to institutional
exclusivity, which is arbitrary, whimsical and
violative of Article 14 of the Constitution of
India having no rational nexus with the object
sought to be achieved. In support of her
submission, she has placed reliance on the
judgements of the Supreme Court in the
following cases:-

(i) Municipal Corporation of
Greater Bombay and others Vs. Thukral
Anjali Deokumar and others, (1989) 2
SCC 249 (Paragraphs 17, 18, 19 and 20).

(ii) B.L. Asawa Vs. State of
Rajasthan and others, (1982) 2 SCC 55
(Paragraph 10);

(iii) Parmar Alpaben Sanabhai
Vs. State of Gujarat, 2004 (4) LLN 919
(Paragraph 22)

27. She has further submitted that
Rule 10 of Rules, 2016 were de hors the
8 All. State of U.P. & Anr. Vs. Aakash Verma & Ors.
805
fundamental
rights
enshrined
under
Articles 14 and 19 of the Constitution of
India and, therefore, the third amendment
has been brought in the aforesaid rules in
the year 2020. It has been submitted that
Rules, 2020 should be held to have
retrospective operation as they have sought
to rectify the defects in the Rules, 2016
bringing them within the Constitutional
mandate of equality. In this regard, she has
placed
reliance
on
the
following
judgements:-

(i) Shri Chaman Singh and
another Vs. Srimati Jaikaur, (1969) 2 SCC
429 (Paragraphs 5 and 6)

(ii) S.S. Grewal Vs. State of
Punjab and others, 1993 Supp. (3) SCC
234, (Paragraph 9)

(iii) Zile Singh Vs. State of
Haryana and others, (2004) 8 SCC 1
(Paragraphs 13 to 18 and 21)

(iv) Securities and Exchange
Board of India Vs. Ajay Agarwal, (2010) 3
SCC 765 (Paragraph 40)

28.

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

29.

Respondents
have
neither
challenged the statutory rules i.e Rules,
2016 prescribing 'O' Level certificate in
Computer
Application
from
DOEACC/NIELIT
as
an
essential
qualification nor they had challenged the
advertisement
dated
26.12.2016
in
pursuance of which the recruitment for
three posts have been completed. In
absence of challenge to the Rules and the
advertisement and having applied in
pursuance of the advertisement, it was not
open for the respondents to come before the
Court with the prayer to hold them eligible
for the aforesaid three posts as they
possessed the preferential qualification, but
not the essential qualification. Prayers in
the writ petitions would clearly show that
there was no challenge to the statutory
prescription and the advertisement. At the
threshold, the candidate must possess
essential
qualification
and,
if
he/she
possesses the essential qualification, then
only the preferential qualification would be
considered in case there are two or more
candidates having essential qualification
and
have
secured
equal
marks
in
examination/interview
etc.
When
a
candidate does not possess the essential
qualification, but has only preferential
qualification, it cannot be said that he/she is
to be held eligible for appointment on the
post for which a qualification is prescribed
as an essential qualification. There is
nothing in Rules, 2016 which stipulates that
possession of higher qualification would
presuppose acquisition of the essential
qualification of possessing 'O' Level
certificate from DOEACC/NIELIT. In
absence
of
such
a
stipulation,
the
hypothesis that the higher qualification
presupposes the acquisition of lower
essential qualification cannot be accepted.

30. The Supreme Court in the case of
State of Punjab and others Vs. Anita and
others, (2015) 2 SCC 170 in paragraph 15
held as under :-

"15. It was sought to be asserted
on the basis of the aforesaid observations,
that since the private respondents possess
higher qualifications, then the qualification
of JBT/ETT, they should be treated as
having fulfilled the qualification stipulated
for the posts of JBT/ETT Teachers. It is not
possible for us to accept the aforesaid
submission of the learned counsel for the
private respondents, because the statutory
806 INDIAN LAW REPORTS ALLAHABAD SERIES
rules which were taken into consideration
by this Court while recording the aforesaid
observations in Jyoti K.K. case [Jyoti K.K.
v. Kerala Public Service Commission,
(2010) 15 SCC 596] , permitted the
aforesaid course. The statutory rule, in the
decision relied on by the learned counsel
for the private respondents, is extracted
hereunder: (SCC p. 598, para 6)

"6. Rule 10(a)(ii)
reads
as
follows:

''10.
(a)(ii)
Notwithstanding
anything contained in these Rules or in the
Special Rules, the qualifications recognised
by executive orders or Standing Orders of
Government
as
equivalent
to
a
qualification specified for a post in the
Special Rules and [Ed.: The matter
between two asterisks has been emphasised
in original as well.] such of those higher
qualifications
which
presuppose
the
acquisition of the lower qualification
prescribed for the post shall also be
sufficient for the post [Ed.: The matter
between two asterisks has been emphasised
in original as well.] .'"(emphasis supplied)

A perusal of the Rule clearly
reveals that the possession of higher
qualification
would
presuppose
the
acquisition of the lower qualification
prescribed for the posts. Insofar as the
present controversy is concerned, there is
no similar statutory provision authorising
the appointment of persons with higher
qualifications."

It is relevant to mention here that
the judgement in the case of Jyoti K.K.
(supra), relied by Sri L.P. Misra, has been
considered in the aforesaid judgement.

31. The prescription of qualification
for a post, is a matter of recruitment policy.
The State or the employer is empowered to
prescribe the qualification as a condition of
eligibility. The Court while exercising the
function of judicial review, cannot expand
upon ambit of prescribed qualification.

32. The Supreme Court in the case of
Zahoor Ahmad (supra) has held that
equivalence of qualification is not a matter,
which can be determined by the Court in
exercise of power of judicial review. It is
for the State to determine whether a
particular qualification should also be
regarded as a qualification. It would be apt
to extract paragraphs 26 and 27 of the
aforesaid judgement, which read as under :-

"26.
We
are
in
respectful
agreement with the interpretation which
has been placed on the judgment in Jyoti
K.K. [Jyoti K.K. v. Kerala Public Service
Commission, (2010) 15 SCC 596 : (2013) 3
SCC (L&S) 664] in the subsequent decision
in Anita [State of Punjab v. Anita, (2015) 2
SCC 170 : (2015) 1 SCC (L&S) 329] . The
decision in Jyoti K.K. [Jyoti K.K. v. Kerala
Public Service Commission, (2010) 15 SCC
596 : (2013) 3 SCC (L&S) 664] 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. [Jyoti
8 All.