# Vatsala Jaiswal & Ors v. State of U.P. & Ors. 182 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 2 ILRA 181
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-07
- **Case number:** Writ A No. 11237 of 2020
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vatsala-jaiswal-ors-v-state-of-u-p-ors-182-indian-law-reports-allahabad-series-46730
- **Pages:** 12

## Headnote

A. Service Law - Appointment of Trained
Graduate Teacher in English - Selection -
Essential Qualification - Advertisement
require
Graduate
degree
in
English
Literature - Candidates possess Master
degree in English Literature - Recognition
-
No
executive
decision
holding
a
Graduate degree in English Language and
Literature to be equivalent - Effect -
'Same line of progression' - Held, Master's
degree in English Literature has not been
established as having been obtained in the
'same line of progression' - Court even
otherwise and upon applying the test of
reasonable prudence fails to discern any
manifest or patent fallacy if it be asserted,
as it has by theSt., that the study of
English Language and Literature is the
pursuit
of
two
separate
or
distinct
subjects so as to hold in favour of the
petitioner. (Para 15, 19 and 24)
B. Service Law - Selection - Essential
Qualification
-
Evaluation
of
the
equivalence of degrees and qualifications
- Juicial Review - Scope - Held, such
evaluation is a function which must
necessarily be left to experts in the field -
Court in proceeding to do so would not
only
be
transgressing
the
inherent
limitations on the power of judicial review
but also venturing into a field where it
may be viewed as lacking the requisite
expertise required to deal with such
questions. (Para 23)
Writ Petition dismissed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,596 of 41,636. This is a partial read: ask again with offset=39596 for what follows._

2 All. Vatsala Jaiswal & Ors. Vs. State of U.P. & Ors.
181

10. Thus, it is settled legal position
that at the time of taking cognizance there
is no requirement of providing opportunity
of hearing to either party. Only satisfaction
of the concerned Magistrate is required
after application of legal mind.

11. Perusal of the impugned order dated
14.08.2018 denotes that the Magistrate while
passing the order of cognizance has
mentioned that he has perused the case diary
and the statements of the witnesses recorded
as well as the documents put forward before
him. It clearly reveals that the Magistrate
while passing the order of taking cognizance
has applied its legal mind. No doubt in the
order, it has been mentioned that accusedapplicant Alok Kumar Gupta was heard in
compliance of the order passed by this Court
but in the order of the High Court, there was
no direction that the accused-applicant should
be given an opportunity of hearing before
taking the cognizance as has been argued by
the learned counsel for the petitioner/accused.
As mentioned above that accused-applicant
has no right to be heard at the time of taking
cognizance, so no prejudice has been caused
to the petitioner/accused.

12. It is to be taken note that in this
matter, the first information report was
lodged
in
the
year
2014,
thereafter
Investigating Officer submitted charge-sheet
initially on 01.12.2014 cognizance was taken
and the accused was summoned to face trial
but accused-applicant came to this Court for
quashing the order of taking cognizance on
the ground of non application of mind and
that order was set aside and a fresh order was
passed by the Magistrate, which is impugned
order and that was again challenged mainly
for
the
reason
that
name
of
the
petitioner/accused has been mentioned in the
cognizance order disclosing that he has been
heard while in-fact he was not heard but the
rest of the summoning order discloses that
learned Chief Judicial Magistrate has perused
the material placed before him along with the
charge-sheet. A long period has passed after
lodging the F.I.R. but the matter is still
pending at the initial stage in the Trial Court
and petitioner/accused has not surrendered
before the Court.

13. During argument it has been
disclosed by the learned counsel for the
informant/opposite party no. 2 that the
petitioner/accused
has
moved
an
application before the trial court for
discharge and this fact has been admitted
by the counsel for the petitioner/accused.
There remains the opportunity for the
petitioner/accused to argue or make a
submission that there is no prima facie
material to constitute the offences alleged
against the accused.

14. In the light of the aforesaid
discussions, there is no justification to
interfere under Section 482 Cr.P.C. and to
quash the impugned order dated 14.08.2018
passed by the learned Chief Judicial
Magistrate, Lucknow.

15. This petition under Section 482
Cr.P.C. is, accordingly, dismissed.
----------
(2021)02ILR A181
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ A No. 11237 of 2020

Vatsala Jaiswal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
182 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Seemant Singh, Sri Ashok Khare

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

A. Service Law - Appointment of Trained
Graduate Teacher in English - Selection -
Essential Qualification - Advertisement
require
Graduate
degree
in
English
Literature - Candidates possess Master
degree in English Literature - Recognition
-
No
executive
decision
holding
a
Graduate degree in English Language and
Literature to be equivalent - Effect -
'Same line of progression' - Held, Master's
degree in English Literature has not been
established as having been obtained in the
'same line of progression' - Court even
otherwise and upon applying the test of
reasonable prudence fails to discern any
manifest or patent fallacy if it be asserted,
as it has by theSt., that the study of
English Language and Literature is the
pursuit
of
two
separate
or
distinct
subjects so as to hold in favour of the
petitioner. (Para 15, 19 and 24)
B. Service Law - Selection - Essential
Qualification
-
Evaluation
of
the
equivalence of degrees and qualifications
- Juicial Review - Scope - Held, such
evaluation is a function which must
necessarily be left to experts in the field -
Court in proceeding to do so would not
only
be
transgressing
the
inherent
limitations on the power of judicial review
but also venturing into a field where it
may be viewed as lacking the requisite
expertise required to deal with such
questions. (Para 23)
Writ Petition dismissed. (E-1)
Cases relied on :-
1. Parvaiz Ahmad Parry Vs St. of J. & K. &
ors., 2016 (1) ESC 54 (SC)
2. Jyoti K.K. & ors. Vs Kerala Public Service
Commission & ors., (2010) 15 SCC 596
3. St. of Uttar. & ors. Vs Deep Chandra
Tewari & anr., (2013) 15 SCC 557
4. Writ A No. 24273 of 2018, Deepak Singh &
9 ors. Vs St. of U.P. & 8 ors. decided on 23
July 2019
5. Writ A No. 6083 of 2020, Asheesh Kumar &
6 ors. Vs St. of U.P. & 2 ors. decided on 11
November 2020
6. Civil Misc. Writ Petition No. 27782 of 2009,
Km. Deoki Verma Vs St. of U.P. & ors. decided
on 14 May 2010
7. Civil Misc. Writ Petition No. 8013 of 2011,
Dr.
Upendra
Kumar
Kanaujia
Vs
Chancellor/HisExcellency Governor of Uttar
Pradesh, Lucknow & Others decided on 11
February 2011
8. Order passed in Review Application No.
183215 of 2016 in Writ A No. 63424 of 2015,
Professor Madan Mohan Rajput Vs St. of U.P.
& 5ors. decided on 27 October 2016
9. Zahoor Ahmad Rather Vs Imtiyaz Ahmad,
(2019) 2 SCC 404
(Delivered by Hon'ble Yashwant Varma, J.)

1. The Court has heard Sri Ashok
Khare, learned Senior Counsel assisted by
Sri Seemant Singh for the petitioners, Sri
Avneesh Tripathi who has addressed
submissions on behalf of the Commission
and Sri Piyush Shukla, the learned
Additional Chief Standing Counsel for the
State-respondents.

2. All the petitioners had participated
in a selection process initiated by the
respondents for appointment of Trained
Graduate Teachers in English. It is their
case that they were initially permitted by
the respondents to participate in the
recruitment exercise. According to the
petitioners, at the stage of document
verification the testimonials submitted by
them online were not accepted by the
respondents and they all received error
2 All. Vatsala Jaiswal & Ors. Vs. State of U.P. & Ors.
183
messages of either having entered an
invalid roll number or password. Upon
enquiries being made they were apprised
that all of them were found to be ineligible
since they did not possess the essential
qualification
as
stipulated
in
the
advertisement. The advertisement required
all applicants applying for appointment as
Trained Graduate Teachers in English to
hold a Graduate degree in "English
Literature" conferred by a University duly
established by law or such other degree
which may have been recognized by the
State as being equivalent thereto. It is the
conceded position that none of the
petitioners hold a Graduate degree in
English Literature nor did they pursue a
course of study in that subject at the
graduation stage. Their challenge to the
exclusion of their candidature rests on the
Master's degree conferred on them at which
stage they did have English Literature as
the primary subject. It is in the aforesaid
backdrop that it is contended that the
petitioners who hold a superior or advanced
degree in the subject of English Literature
have been wrongly denied the right to seek
appointment as Trained Graduate Teachers
in English.

3. Assailing the decision of the
respondents Sri Khare, learned Senior
Counsel, has contended that since all of the
petitioners have obtained their Master's
degree in English Literature, a degree
which is liable to be recognized as superior
or at least a qualification higher to that of a
Bachelor's degree in the same subject, they
must be recognized as fulfilling the
essential requirement as placed in the
advertisement.
Sri
Khare
has
placed
reliance on the decisions of the Supreme
Court rendered in Parvaiz Ahmad Parry
Vs. State of Jammu & Kashmir And
Others1, Jyoti K.K. And Others Vs.
Kerala Public Service Commission and
Others2 as also its decision in State of
Uttarakhand And Others Vs. Deep
Chandra Tewari and Another3 in support
of his submission that a higher qualification
necessarily
presupposes
the
candidate
fulfilling the requirement of possessing a
lower qualification and in any case
evidences the candidates' eligibility for
appointment. Sri Khare submits that a
higher qualification can never be viewed as
a
disqualification
for
appointment
especially in a case where such higher
qualification has not been specifically
excluded.

4. It becomes pertinent to note that
two major hurdles stood in the way of
acceptance of the aforesaid submissions.
The attention of the learned Senior Counsel
was invited to the judgment rendered by the
Full Bench of the Court in Deepak Singh
and 9 Others Vs. State of U.P. and 8
Others4 as well as the judgment rendered
by this Court in Asheesh Kumar and 6
Others Vs. State of U.P. and 2 Others5.
Both in Deepak Singh and Asheesh
Kumar, the Court was called upon to deal
with an identical submission of a higher
qualification being viewed as sufficient
evidence of eligibility of candidates. Sri
Khare sought to distinguish the judgment
of the Full Bench in Deepak Singh by
contending that the principal issue which
fell for consideration of the Full Bench was
the claim of eligibility as raised by
candidates holding a degree in Engineering
whereas
the
requirement
in
the
advertisement was of a Diploma in that
field. According to Sri Khare the judgment
of the Full Bench in Deepak Singh merely
holds that there was no equivalency
between
a
Degree
and
Diploma
in
Engineering and it was in that backdrop
that the Full Bench held that the degree
184 INDIAN LAW REPORTS ALLAHABAD SERIES
holders were ineligible to participate in the
selection process and had been rightly
excluded from the zone of consideration.
Dealing with the decision rendered by this
Court in Asheesh Kumar, Sri Khare
submitted that the said decision was
rendered in the backdrop of the absence of
a stipulation in the advertisement in terms
of which a degree equivalent to that
prescribed may have been taken into
consideration. Sri Khare submits that to the
contrary, the pre-requisite as prescribed in
the advertisement which forms subject
matter of the present petition clearly brings
within its scope degrees which may have
been recognized as equivalent to that of a
Bachelor's degree in English Literature and
viewed in that light the decision in Asheesh
Kumar is clearly distinguishable.

5. Sri Khare additionally relied upon
the
certifications
issued
by
certain
Universities from which the petitioners
have obtained their Graduation degrees
which according to him clearly establish
and settle any doubt with regard to
equivalency between a course of study in
English Language and Literature. He
submits that in view of these certifications
and in the absence of any contrary decision
taken by the respondents the petitioners
have been wrongfully excluded. Sri Khare
lastly assails the action of the respondents
in having failed to address the issue of
equivalency prior to the commencement of
the selection process and submitted that the
respondents were obliged to rule on that
issue
before
holding
the
petitioners'
ineligible to seek appointment as Trained
Graduate Teachers in English.

6. Sri Avneesh Tripathi, learned
counsel
representing
the
Commission
submitted that the decisions in Deepak
Singh and Asheesh Kumar had in
unambiguous terms negatived identical
contentions
and
were
therefore
authoritative pronouncements sufficient to
negate the submissions advanced on behalf
of the petitioners and noted above.
Additionally, Sri Tripathi has placed
reliance upon the following three decisions:
(A) Km. Deoki Verma Vs. State of U.P.
and Others6, (B) Dr. Upendra Kumar
Kanaujia Vs. Chancellor/His Excellency
Governor of Uttar Pradesh, Lucknow &
Others7 and (C) an order passed on a
Review Application8 moved in Professor
Madan Mohan Rajput Vs. State of U.P.
And 5 Others9.

7. At the outset and before proceeding
to deal with the rival submissions, it
becomes pertinent to note that the decisions
cited by Sri Tripathi do not appear to bear
any relevance to the questions which arise.
Km. Deoki Verma was dealing with the
issue of whether a person claiming
promotion to the post of Assistant Teacher
in the L.T. Grade must possess the requisite
qualification in the subject concerned.
Answering that question, the Division
Bench held that it was incumbent upon the
person seeking promotion to possess the
requisite
educational
qualification
as
prescribed for the Assistant Teacher whose
vacancy was sought to be filled. In Dr.
Upendra Kumar Kanaujia the Division
Bench found that the petitioner there did
not possess the essential qualification of
having a Master's degree in Ancient
History. Similarly, the order of the Division
Bench on the Review Application moved in
Professor Madan Mohan Rajput essentially
deals with the scope of the review power
conferred on courts. This Court fails to find
any observation or recital in those decisions
which may be viewed as having relevance
to or bearing upon the questions which
arise here.
2 All. Vatsala Jaiswal & Ors. Vs. State of U.P. & Ors.
185

8. At the outset the Court proposes to
deal with the submission of Sri Khare of it
being incumbent upon the respondents to
have decided the issue of equivalence
before commencement of the recruitment
process.
The
Court
notes
that
the
advertisement
in
unambiguous
terms
stipulated that all candidates must possess a
Graduation degree in English Literature or
hold a degree recognized by the State as
equivalent thereto. The petitioners have not
relied upon any decision of the State which
may have recognized a Graduation degree
in English Language or Literature to be
equivalent.

9. The petitioners fundamentally
place reliance upon certain certificates
issued by the Universities from which they
obtained their Bachelor's degree in support
of their stand that the said degree in
English Language did clothe them with the
requisite eligibility to be considered for
selection and appointment. It becomes
pertinent to observe that it is not very clear
from the record whether these certificates
were ever placed before the respondents for
their consideration prior to the filing of the
present writ petition. However, it is amply
clear that at the time when the petitioners
took part in the selection process, they were
fully
aware
of
the
fact
that
the
advertisement
in
unambiguous
terms
placed a requirement of a candidate
possessing a Bachelor's degree in "English
Literature" as distinct from "English
Language". They also did not rest their
candidature on any preexisting decision of
the State Government holding a Bachelor's
degree in English Language and Literature
to be equivalent. In the considered view of
this Court, in light of the aforesaid factual
position
which
obtained
at
the
commencement of the recruitment process,
it was incumbent upon the petitioners to
have obtained a clarification in this respect
before proceeding further and participating
in the selection process. The mere fact that
the petitioners were permitted by the
respondents to participate in the selection
process initially cannot be countenanced as
a factor which created any vested rights in
their favour or one which may be
recognized as creating an estoppel against
the respondents.

10. Alternatively, it was also open to
the petitioners to have either obtained a
requisite judicial declaration with regard to
their eligibility or a mandate commanding
the respondents to take a decision on
equivalence before proceeding with the
recruitment exercise. The petitioners chose
not to adopt either of the measures noted
above and took a chance by participating in
the selection process. Having failed to do
so, the Court finds no merit in the challenge
raised on this score by the petitioners
especially at this stage and upon the
culmination of the entire selection process.
The Court also bears in mind the reliefs as
framed in the petition which establishes
that the writ petitioners do not assail the
entire selection process on this score. The
only relief claimed is for the inclusion of
the petitioners in the process of selection
and for the evaluation of their candidature
on merits.

11. In any case a failure on the part of
the State to have ruled on the issue of
equivalence cannot possibly lead this Court
to conclude that the petitioners were
otherwise eligible nor does it detract from
the factual position which is otherwise
shown to exist and prevail. The contention
addressed in this regard in any case begs
the more fundamental question of whether
the petitioners were in fact eligible to be
considered for selection and appointment as
186 INDIAN LAW REPORTS ALLAHABAD SERIES
Trained Graduate Teachers in English
notwithstanding they not possessing a
Graduate degree in English Literature. That
is an issue which the Court now proceeds
to consider and rule upon.

12. Coming to the primary issue of
whether the petitioners were entitled to be
recognized as eligible for appointment on
the strength of their Master's degree in
English Literature the Court notes that the
decisions of the Supreme Court in Jyoti
KK, Parvaiz Ahmad Parry and Deep
Chandra Tewari were duly noticed and
explained by the Full Bench of the Court in
Deepak Singh.

13. Evaluating the correctness of the
submission addressed on the strength of the
decision in Jyoti K.K., the Full Bench
observed thus:

"The Court also noted that there
was no exclusion to candidates to possess
a higher qualification. The above referred
decision in Jyoti K.K. (supra) turned on
the provisions of Rule 10 (a)(ii). In the
present case, there is no equivalent Rule
akin to Rule 10(a)(ii). A perusal of the
said Rule 10(a)(ii) clearly presupposes
and provides that the acquisition of a
higher qualification would presuppose the
acquisition of the lower qualifications
prescribed for the post. In the present
case, there being no such Rule, we are
afraid that the presumption is not
available to the petitioners."

14. The Full Bench as well as the
subsequent decision of the Supreme
Court in Zahoor Ahmad Rather Vs.
Imtiyaz Ahmad10 noticed the decisive
and distinctive feature in the backdrop of
which certain observations came to be
entered in that decision. Jyoti K.K.
essentially rested upon the language of
Rule 10(a)(ii) of the Kerala State and
Subordinate Service Rules 1958 which
employed the words "..... qualifications
recognized
by
executive
orders
or
standing
orders
of
government
as
equivalent to a qualification specified for
a post in the special rules and such of
those
higher
qualifications
which
presuppose the acquisition of the lower
qualification prescribed for the post shall
also be sufficient for the post."

15. In the present case there is
admittedly no executive decision holding
a Graduate degree in English Language
and Literature to be equivalent. More
fundamentally, the petitioners have also
failed to establish that holding a Master's
degree in English Literature would
compel one to conclude that possessing
that qualification must necessarily lead to
a presupposition that he had acquired the
lower qualification.

16. Explaining the decision in
Parvaiz Ahmad Parry, the Full Bench
held:

"The next case relied upon by Sri
Ashok Khare in Parvaiz Ahmad Parry vs.
State of Jammu & Kashmir and others,
[2016 (1) ESC 54 (SC)]. In the said case,
the matter related to appointment to the
post of J & K Forest Service Range
Officers, Grade-I, wherein the prescribed
qualification was B.Sc. (Forestry) or its
equivalent from any University recognised
by the Indian Council of Agricultural
Research (hereinafter referred to as the
'ICAR'). The appellants, in the said case,
had a qualification of B.Sc. with Forestry
as one of the major subjects and Master in
Forestry i.e. M.Sc. (Forestry) on the date
when he applied for the post in question,
2 All. Vatsala Jaiswal & Ors. Vs. State of U.P. & Ors.
187
the Apex Court allowed the appeal holding
as under:

"In our considered view, firstly, if
there was any ambiguity or vagueness
noticed in prescribing the qualification in
the advertisement, then it should have been
clarified by the authority concerned in the
advertisement itself. Secondly, if it was not
clarified, then benefit should have been
given to the candidate rather than to the
respondents. Thirdly, even assuming that
there was no ambiguity or/and any
vagueness yet we find that the appellant
was admittedly having B.Sc. degree with
Forestry as one of the major subjects in his
graduation and further he was also having
Masters degree in Forestry, i.e., M.Sc.
(Forestry). In the light of these facts, we are
of the view that the appellant was
possessed of the prescribed qualification to
apply for the post in question and his
application could not have been rejected
treating him to be an ineligible candidate
for not possessing prescribed qualification.

In our view, if a candidate has
done B.Sc. in Forestry as one of the major
subjects and has also done Masters in the
Forestry, i.e., M.Sc.(Forestry) then in the
absence of any clarification on such issue,
the candidate possessing such higher
qualification has to be held to possess the
required qualification to apply for the post.
In fact, acquiring higher qualification in
the prescribed subject i.e. Forestry was
sufficient to hold that the appellant had
possessed the prescribed qualification. It
was coupled with the fact that Forestry was
one of the appellant's major subjects in
graduation, due to which he was able to do
his Masters in Forestry."

The said case has no applicability
to the facts of the present case inasmuch as
Diploma in Engineering and B.Tech in
Engineering are two different courses and
thus the ratio of the judgement in the case
of Parvaiz Ahmad Parry vs. State of
Jammu & Kashmir and others has no
applicability to the facts of the present
case."

17. Apart from what was observed by
the Full Bench and extracted above, as the
facts of that decision would reveal, the
Supreme Court held in favour of the
candidates before it principally since they
had Forestry as a subject both at the
Graduate and Master's level.

18.

Noticing
the
submissions
addressed in the backdrop of Deep
Chandra Tewari, the Full Bench observed:

"Although
a
question
raised
before the Hon'ble Supreme Court was with
regard to the difference in between B.Ed.
with specialisation in vocational course
and B.Ed. in specified subjects, the
Supreme Court recorded the general
principle as under:

"We
are
conscious
of
the
principle
that
when
particular
qualifications are prescribed for a post, the
candidature of a candidate possessing
higher qualification cannot be rejected on
that basis. No doubt, normal rule would be
that candidate with higher qualification is
deemed to fulfil the lower qualification
prescribed for a post. But that higher
qualification has to be in the same channel.
Further, this rule will be subject to an
exception. Where the prescription of a
particular qualification is found to be
relevant for discharging the functions of
that post and at the same time, the
Government is able to demonstrate that for
want of the said qualification a candidate
may not be suitable for the post, even if he
possesses a "better" qualification but that
"better" qualification has no relevance with
the function attached with the post."
188 INDIAN LAW REPORTS ALLAHABAD SERIES

The Apex Court, further, while
allowing the appeal, held as under:

"In the present case, we find the
situation falling in this excepted category.
As pointed out above, the Assistant Teacher
is meant to impart education to students at
primary
level.
For
teaching
primary
students, subjects studied while doing basic
BEd degree would be relevant and
appropriate. For teaching such students,
BEd with specialisation in vocational
education would be of no use as those
students are not imparted vocational
education, which is the thrust in the degree
obtained by the respondents herein. In the
instant case, proficiency in the basic
subjects taught at primary level is required
and thus vocational training would not
serve any purpose. Thus, when we find that
in the instant case, essential education
qualification is BEd degree which is
prescribed in the relevant rules, having
statutory
flavour,
the
action
of
the
Government cannot be faulted with, in
rejecting the candidature of the respondents
because of the reason that they do not have
the qualification, as mentioned in the
advertisement viz. BEd degree simpliciter."

The above referred case relied
upon by Sri Ashok Khare, in fact,
strengthens the proposition that where the
qualification is specified, there should be
no deviation from the said specified
requirement."

19. As noted by the Full Bench, Deep
Chandra Tewari dealt with the issue of the
higher qualification having been obtained
"in the same channel" and what may be
described as the "same line of progression".
However as noted hereinbefore, none of the
petitioners were shown to have taken
English Literature as a subject at the
Graduate stage. Consequently the Master's
degree
in
English
Literature
cannot
possibly be viewed as having been obtained
in the same channel or line of progression.

20. Pausing here the Court also finds
itself unable to accept the submission of Sri
Khare that the decision in Deepak Singh is
distinguishable and liable to be viewed as
one dealing solely with the issue of
equivalence between a Diploma and
Degree in Engineering. While dealing with
Question
"C"
and
the
question
of
equivalence of degrees and the scope of
judicial review in such matters the Full
Bench pertinently observed: -

"In view of the above referred
judgements, we have no hesitation in
holding that the State, as an employer, is
well equipped to decide the desirable
qualification or may prescribe additional
qualification
including
any
grant
of
preference. The Court cannot lay down the
conditions of eligibility much less, it can go
into the question of desirable qualification
being
at
par
with
the
essential
qualification."

.......

"Testing the said arguments as
raised by Sri Khare although on record no
Rules have been placed, however, in view
of the finding recorded by us that Diploma
in Engineering is not the same as Bachelor
in Engineering and also the finding
recorded by us that the State is well
equipped to prescribe the requisite required
qualification
keeping
in
view
the
requirement of posts for which the
advertisements are issued, we hold that
whether
Diploma
in
Engineering
is
specified as a minimum qualification or a
required
qualification,
Graduates
in
Engineering would not be entitled to be
considered and will be out of zone of
consideration unless a candidate possess
both the qualifications to explain it further
2 All. Vatsala Jaiswal & Ors. Vs. State of U.P. & Ors.
189
suppose
a
candidate
after
acquiring
Diploma
in
Engineering
also
passes
Graduation in Engineering he would be
eligible, in view of the fact that he has
Diploma in Engineering which is the
required qualification for applying to the
post and cannot be denied to participate
only because he has any qualification
additional to the prescribed qualification.
However, the State Government is free to
provide for equivalence as was done by the
Kerala State while incorporating Rule
10(a)(ii). Since there is nothing on record
in the present case to show that there was
any Rule or Directive of the State
Government to provide equivalence, it is
only logical to conclude that degree holders
are ineligible to participate in the selection
process for Junior Engineer in the light of
the specific provisions incorporated under
the advertisement in question."

.......

"Coupled with the said fact, we
have already held that it is the State
Government which has the powers to
prescribe
the
requisite
qualification
required for the efficient discharge of duties
for the post for which the advertisement is
issued and that being outside domain of
judicial review as held by the Hon'ble
Supreme Court in the case of Zahoor
Ahmad (supra) and Maharashtra Public
Service Commission vs. Sandeep Shriram
Warade and others (supra). We hold that the
persons
having
PGDCA
cannot
be
presumed to be having the qualification of
'O'
level
Diploma
in
Computer
Application."

21.

Dealing
with
identical
submissions addressed in Asheesh Singh
and after noticing the decisions rendered on
the question of equivalence and suitability
of qualifications prescribed, this Court
observed thus:-

"That leaves the Court to consider
the submission of it embarking upon an
exercise to declare a degree in General
English to be equivalent to the essential
qualifications
enumerated
in
the
advertisement. The submission which is
commended for acceptance would clearly
amount to undertaking an exercise which
would
be
legally
impermissible
and
transgress
the
inherent
limitations
recognized by Courts while exercising their
powers of judicial review as explained
hereinafter.

The correctness of the submission
advanced would essentially have to be
tested bearing in mind the following
cardinal principles. The prescription of a
qualification is essentially and primarily a
role reserved for the employer. It is not for
this Court while exercising its jurisdiction
under Article 226 of the Constitution to
arrogate to itself that function. Similarly, it
is neither the function nor the role of the
Court to adjudge or assess the suitability or
desirability of a particular qualification that
may be stipulated. Lastly, it is not for
Courts to assume upon themselves the
authority to delve into questions of
equivalence of degrees and educational
qualifications.
That
function
must
necessarily stand reserved for the experts in
the field namely the academicians.

The Supreme Court in Zahoor
Ahmad Rather Vs. Imtiyaz Ahmad
[(2019) 2 SCC 404] reiterated these settled
principles holding: -

"26. ...... 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
190 INDIAN LAW REPORTS ALLAHABAD SERIES
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 K.K. v. Kerala Public Service
Commission, (2010) 15 SCC 596 : (2013) 3
SCC (L&S) 664] 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 [Imtiyaz Ahmad v. Zahoor
Ahmad Rather, LPA (SW) No. 135 of 2017,
decided on 12-10-2017 (J&K)] of the High
Court was justified in reversing the
judgment [Zahoor Ahmad Rather v. State of
J&K, 2017 SCC OnLine J&K 936] 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 [Imtiyaz Ahmad v.
Zahoor Ahmad Rather, LPA (SW) No. 135
of 2017, decided on 12-10-2017 (J&K)] of
the Division Bench."

A similar note of restraint was
entered in Maharashtra Public Service
Commission
Vs.
Sandeep
Shriram
Warade [(2019) 6 SCC 362

9. The essential qualifications for
appointment to a post are for the employer
to decide. The employer may prescribe
additional
or
desirable
qualifications,
including any grant of preference. It is the
employer who is best suited to decide the
requirements a candidate must possess
according to the needs of the employer and
the nature of work. The court cannot lay
down the conditions of eligibility, much
less can it delve into the issue with regard
to desirable qualifications being on a par
with
the
essential
eligibility
by
an
interpretive re-writing of the advertisement.
Questions of equivalence will also fall
outside the domain of judicial review. If the
language of the advertisement and the rules
are clear, the court cannot sit in judgment
over the same. If there is an ambiguity in
the advertisement or it is contrary to any
rules or law the matter has to go back to the
appointing
authority
after
appropriate
orders, to proceed in accordance with law.
In no case can the court, in the garb of
judicial review, sit in the chair of the
appointing authority to decide what is best
for
the
employer
and
interpret
the
conditions of the advertisement contrary to
the plain language of the same."

More
recently
three
learned
Judges of the Supreme Court in Punjab
National Bank Vs. Anit Kumar Das
[2020 SCC Online SC 897] observed:-

"21. Thus, as held by this Court
in the aforesaid decisions, it is for the
employer to determine and decide the
relevancy
and
suitability
of
the
qualifications for any post and it is not for
the Courts to consider and assess. A greater
latitude is permitted by the Courts for the
employer to prescribe qualifications for any
post. There is a rationale behind it.
Qualifications are prescribed keeping in
view the need and interest of an Institution
or an Industry or an establishment as the
case may be. The Courts are not fit
instruments
to
assess
expediency
or
advisability or utility of such prescription
of qualifications......"

The principles enunciated in
Zahoor Ahmad and Maharashtra Public
Service Commission were reiterated by a
Full Bench of the Court in Deepak Singh
Vs. State of U.P. [2019 SCC Online ALL
4471 (FB) where it observed:-

"52. Now we proceed to deal with
the reference in the case of Himani Singh v.
State of U.P., the advertisement in question
2 All. Vatsala Jaiswal & Ors. Vs. State of U.P. & Ors.
191
prescribed the qualification of Graduate in
Commerce ''O' level Diploma issued by any
Government Recognised Institution. The
petitioners were non-suited as they hold a
Post-Graduate
Diploma
in
Computer
Application.
Thus,
the
claim
of
the
petitioners, before the learned Single Judge,
was that their qualifications are superior to
the prescribed qualification i.e. ''O' level
Diploma in Computer Application. In the said
case, the Uttar Pradesh Subordinate Services
Selection Commission, Lucknow had issued
a Notification on 27.8.2018 notifying that the
''O' level Diploma in Computer Application
had been specified as essential eligibility
qualification and it further provided that there
does not exist any Government Order
specifying the equivalent of qualification
with ''O' level Diploma in Computer
Operation and that National Institute of
Electronics and Information Technology
(hereinafter referred to ''NIELIT'), earlier
DOEAC Society had informed that apart
from NIELIT no other institution was
authorized to grant ''O' level Certificate in
Computer Operation. The learned Single
Judge, in his judgement dated 04.12.2018,
rejected the contention of the petitioners
therein relying upon the earlier decision of
the learned Single Judge in Civil Misc. Writ
Petition No. 19687 of 2018 (Yogendra Singh
Rana v. State of U.P.). While dismissing the
said writ petition, learned Single Judge held
that the assessment with regard to the
suitability of the higher qualification with a
higher proficiency in the field of Computer
Operation is in the field of policy and would
not justify interference by the Writ Court.
Before the Special Appeal Court, the
petitioners had argued that the judgement of
the Yogendra Rana (supra) is subject matter
of pending appeal in which interim order has
also been passed. It was thus argued before
the Special Appeal Court that in view of
decision in the case of Jyoti K.K. (supra) and
Parvez Ahmad Parry (supra), the matter
requires to be considered by the larger Bench
that is how the matter was referred vide order
dated 15.2.2019.

22. As is evident from the extracted
parts of the decision in Asheesh Singh, the
Court did not hold against the petitioners
there merely on account of the absence of a
stipulation in the advertisement providing
for
equivalent
degrees
being
also
considered for the purposes of adjudging
the eligibility of a candidate. It also dealt
with the more fundamental issues of the
scope of judicial review in such matters and
to what extent it could consider and
evaluate submissions with respect to
equivalency of degrees and qualifications.

23. As noted by this Court in Asheesh
Singh, Courts must desist from embarking
upon an exercise of evaluating the
equivalence of degrees and qualifications.
That is a function which must necessarily
be left to experts in the field. The Court in
proceeding to do so would not only be
transgressing the inherent limitations on the
power of judicial review but also venturing
into a field where it may be viewed as
lacking the requisite expertise required to
deal with such questions. Courts, by virtue
of the well-recognized limitations on the
power of judicial review, would be wary
and hesitant in proceeding to determine
equivalence of courses based upon its own
assessment of the content or curriculum of
two different courses or to enter a judicial
declaration resting upon its own evaluation
of an asserted comparability or similarity in
the knowledge that one may gain while
pursuing two different courses of study. It
is in view of the aforesaid that it has often
been said that the issue of equivalence of
qualifications and degrees must essentially
and consequently be left for determination
by academicians.
192 INDIAN LAW REPORTS ALLAHABAD SERIES

24.

In
the
present
case
the
respondents are not shown to have taken
any decision holding a Graduate degree in
English Language and Literature as being
equivalent or equipping a holder of either
of those qualifications with an identical
knowledge set. The Master's degree in
English Literature has also not been
established as having been obtained in the
"same line of progression". The Court even
otherwise and upon applying the test of
reasonable prudence fails to discern any
manifest or patent fallacy if it be asserted,
as it has by the State, that the study of
English Language and Literature is the
pursuit of two separate or distinct subjects
so as to hold in favour of the petitioner
even in the absence of a definitive decision
taken by the respondents in that respect.

25. The Court also fails to find any
justification to interfere with the selection
process bearing in mind firstly the nature of
reliefs that are claimed and secondly since
the petitioners failed to initiate any
proceedings requiring a decision to be
taken by the respondents on the question of
eligibility prior to commencement of the
recruitment process.