# Vikas & Ors v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 273
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-17
- **Case number:** Writ A No. 656 of 2020
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikas-ors-v-state-of-u-p-ors-46503
- **Pages:** 26

## Headnote

Sri F.A. Ansari, Sri G.K. Singh, Sri Ashish Kumar
Singh, Sri Avneesh Triapthi, C.S.C., Sri Greesh
Kumar Malviya, Sri Hritudhwaj Pratap Sahi, Sri
M.N. Singh, Sri Shailendra Srivastava

A.
Service
matter-challenge
to-selection
process of Appointment of Assistant Review
Officers and Review Officers-petitioners had
not permitted to participate in typing test on
the ground that they did not possess the 'O'
Level Certificate-merely because a candidate
perceives that a qualification held by him is
superior or better, that alone would not entitle
him to be considered as eligible unless the
rules of selection so ordain or provide for a
higher qualification being accepted-issue of
equivalence must necessarily be determinedThe court finds no justification to expand the
field of eligibility in the exercise of its powers
of judicial review.(Para 1 to 62)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,914 of 98,653. This is a partial read: ask again with offset=39914 for what follows._

11 All. Vikas & Ors. Vs. State of U.P. & Ors.
273
would be the first day of July, 2010, which never
came in the life time of the first respondent's
husband. Thus, for all the reasons given above,
the benefit of death gratuity that would have
been available to the incumbent's dependents/
heirs on incumbent's death, before attaining the
age of 60 years, under the Government Order
dated September 10, 2009, would be available to
his heirs/dependents.

15. For all the reasons above, we find
ourselves in agreement with the view taken by
the learned Single Judge. Consequently, the
appeal fails and is dismissed.
----------
(2021)11ILR A273
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ A No. 656 of 2020
with others

Vikas & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Sri Tarun Agrawal, Sri Prashant Mishra, Sri
Tarun Agrawal

Counsel for the Respondents:
Sri F.A. Ansari, Sri G.K. Singh, Sri Ashish Kumar
Singh, Sri Avneesh Triapthi, C.S.C., Sri Greesh
Kumar Malviya, Sri Hritudhwaj Pratap Sahi, Sri
M.N. Singh, Sri Shailendra Srivastava

A.
Service
matter-challenge
to-selection
process of Appointment of Assistant Review
Officers and Review Officers-petitioners had
not permitted to participate in typing test on
the ground that they did not possess the 'O'
Level Certificate-merely because a candidate
perceives that a qualification held by him is
superior or better, that alone would not entitle
him to be considered as eligible unless the
rules of selection so ordain or provide for a
higher qualification being accepted-issue of
equivalence must necessarily be determinedThe court finds no justification to expand the
field of eligibility in the exercise of its powers
of judicial review.(Para 1 to 62)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Dr. Krushna Chand Sahu Vs St. of Ori. (1995) 6
SCC 1

2. Chandrakala Trivedi Vs St. of Raj. & ors. (2012) 3
SCC 129

3. Parvaiz Ahmad Parry Vs St. of J.& K. & ors. (2015)
17 SCC 709

4. St. of U.K. & ors. Vs Deep Chandra Tewari & anr.
(2013) 15 SCC 557

5. Praveen Kumar C.P. Vs Ker. Public Service
Commission(2021) SCC OnLine SC 612

6. Aakash Verma & ors. Vs St. of U.P & ors., Service
Single No. 20385 of 2019

7. Deepak Singh & ors. Vs St. of U.P & ors. (2019) 7
ADJ 453

8. St. of U.P. Vs Aakash Verma,Special Appl Def. No.
244 of 2021

9. Prashant Kumar Jaiswal Vs St. of U.P.(2018) 2 ADJ 633

10. Mukul Kumar Tyagi Vs. St. of U.P.(2020) 4 SCC 86

11. Asheesh Kumar & 6 ors. Vs St. of U.P. & 2 ors.
(2020) 11 ADJ 652

12. Zahoor Ahmad Rather Vs. Imtiyaz Ahmad.(2019)
2 SCC 404

13. Mah. Public Service Commission Vs Sandeep
Shriram Warade,(2019) 6 SCC 362.

14. PNB Vs Anit Kumar Das (2020) SCC Online SC
897
274 INDIAN LAW REPORTS ALLAHABAD SERIES
15.
Joyti
K.K.
Vs
Ker.
Public
service
Commission(2010) 15 SCC 596

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard Sri Shashi Nandan, learned
Senior Counsel assisted by Sri Tarun Agarwal,
and Prashant Mishra, learned counsels in Writ -
A No. - 656 of 2020 [Vikas And 80 Others Vs.
State Of U.P. And 2 Others], Sri R.K. Ojha,
learned Senior Counsel in Writ - A No. -945 of
2020 [Jai Shankar Chaubey And 60 Others Vs.
State Of U.P. And 2 Others], Sri Y.S. Bohra,
learned counsel who appears in Writ - A No. -
693 of 2020 [Kavita Singh Vs. State of U.P. And
2 Others]. All other learned counsels appearing
for the petitioners have adopted the submissions
advanced by learned Senior Counsels noticed
above.
Sri
Neeraj
Tripathi,
the
learned
Additional Advocate General assisted by Sri
Shashank Shekhar Singh, learned Additional
Chief
Standing
Counsel
has
addressed
submissions for the State-respondents, Sri G.K.
Singh, learned Senior Counsel assisted by Sri
Avneesh Tripathi has been heard on behalf of
the Commission while Sri M.D. Singh, 'Shekhar'
and Sri V.K. Singh, learned Senior Counsels
assisted by Sri G.K. Malviya, have appeared for
the impleaded parties.

A. INTRODUCTION

2. This batch of writ petitions challenge a
selection process undertaken by the U.P. Public
Service Commission1 for appointment of
Assistant Review Officers and Review Officers
in
different
departments
of
the
State
Government. Admittedly, all the writ petitioners
had
successfully
cleared
the
written
examination. They were, however, not permitted
to participate in the typing test leading to the
filing of the present writ petitions. The writ
petitioners approached this Court stating that the
respondents
had
not
permitted
them
to
participate further in the selection process on the
ground that they did not possess the ''O' Level
certificate as prescribed by NIELIT. The writ
petitioners appearing in the lead matter being
Writ A No. 656 of 2020 have classified the
various petitioners as falling in the following
groups: -

Group
Petitioners
Academic
Qualification
Group 1
Petitioner Nos. 1 to 14
B. Tech. (IT)
Group 2
Petitioner Nos. 15 to 44
B. Tech. (CS)
Group 3
Petitioner Nos. 45 to 48
B.Sc. (CS)
Group 4
Petitioner Nos. 49 to 52
B.Sc. (CA)
Group 5
Petitioner Nos. 53
M.Sc. (CS)
Group 6
Petitioner Nos. 54-63
BCA
Group 7
Petitioner Nos. 64 to 71
MCA
Group 8
Petitioner Nos. 72 to 77
B.A./M.A. + "O"
Level Course from
Kanpur University
Group 9
Petitioner Nos. 78
Electronics
&
Communication
Engg.
Group 10
Petitioner Nos. 79
Diploma
in
Computer
Application
from
NIELIT
Group 11
Petitioner Nos. 80
Diploma
in
Computer Science
Group 12
Petitioner Nos. 81
PGDCA

3. Undisputedly, the rules which govern
the appointment of Review Officers and
Assistant
Review
Officers
prescribed
the
following qualifications: -

(A)
Bachelor's
degree
from
a
University established by law in India or a
qualification recognized by the Government as
equivalent thereto;

(B) "O" Level certificate awarded by
the DOEACC Society or a qualification
equivalent thereto;

(C) Must possess a minimum typing
speed of 25 words per minute in Hindi typing;
11 All. Vikas & Ors. Vs. State of U.P. & Ors.
275

4. All the writ petitioners contend that they
hold degrees and diplomas which are either
equivalent to an ''O' Level certificate or are
liable to be viewed as a higher or superior
qualification to that of an ''O' Level certificate. It
was also their contention that in the previous
recruitment
exercises
which
had
been
undertaken, candidates holding qualifications
identical to that of the petitioners, had been
permitted to participate in the selection process
and had also been appointed subsequently. In
view of the aforesaid, it was contended that the
exclusion of the petitioners was clearly arbitrary
and illegal. When the leading writ petition came
up for consideration before a learned Judge on
17 January 2020, rival submissions were noted
and upon consideration thereof and as an interim
measure it was provided that in case the
petitioners
here
ultimately
succeed,
the
Commission would hold a special typing rest for
them and appointments if any made would be
subject to the result of the writ petition. On 29
July
2020,
the
Court
took
note
of
a
supplementary affidavit filed in connected
petition being Writ-A No.945 of 2020 and the
reliance placed on behalf of the petitioners on a
Government Order of 09 June 2020. The State
respondents as well as the Commission were
directed to file their counter affidavits. Pursuant
to those directions, affidavits have since been
exchanged between parties. The Commission
along with its counter affidavit of 17 February
2020 placed on the record a decision taken by a
3 member Expert Committee dealing with the
question of equivalence of degrees and diplomas
submitted by candidates to the ''O' Level
certificate as issued by NIELIT. Taking note of
the course content of the ''O' Level certificate,
the Committee held that certificates of higher
levels would not be considered. It further
decided that certificates issued by Institutes,
Centers and Schools accredited by NIELIT for
running courses other than the ''O' Level would
also not be considered. The Committee further
resolved
that
higher
degrees/diplomas
certificates in IT/Computer Science submitted in
lieu of the ''O' Level Certificate would also not
be
considered.
It
also
excluded
from
consideration any certificate issued by a private
school, training center, institution or a body. It
lastly decided that a Post Graduate Diploma in
Computer Application (PGDCA) as well as a
Diploma in Computer Application (DCA)
awarded by universities or other organizations
would also not be considered as equivalent to
the ''O' Level certificate.

5. Upon that disclosure being made, the
petitioners amended the writ petitions laying
challenge to the decision of the Expert
Committee. Those amendments as proposed
were allowed by the Court on 17 November
2020. On 16 July 2021, the Court was apprised
by the learned Additional Advocate General that
during the pendency of the writ petitions various
appointments had come to be made and such
appointees had not been impleaded as party to
these proceedings. The Court, in view of the
aforesaid, directed the State respondents to serve
notices upon all selected candidates informing
them of the pendency of these petitions.
Pursuant to the aforesaid direction, the State
took requisite steps and various impleadment
applications
on
behalf
of
the
appointed
candidates came to be filed. The batch came to
be placed before this Court on 11 August 2021
pursuant to an order of nomination made by the
Hon'ble Chief Justice. When this batch was
taken up on 31 August 2021, Sri Shashi Nandan,
learned Senior Counsel appearing in the lead
writ petition, drew the attention of the Court to
what was described to be a Government Order
of 22 April 2021. A copy of that document was
provided to the learned Additional Advocate
General to enable him to verify the same and
obtain necessary instructions. The petitioners by
way of a supplementary affidavit of 01
September 2021 placed on the record the
document which had been referred to the Court
during the course of proceedings taken on 31
276 INDIAN LAW REPORTS ALLAHABAD SERIES
August 2021. The document which stands
appended with that supplementary affidavit is
concededly not a Government Order but merely
a communication by the Special Secretary to the
Commission. Along with the aforesaid affidavit,
the petitioners also brought on record the
communication dated 09 June 2020 addressed
by the Joint Secretary in the Government of U.P.
to the Deputy Director General of Police
(Personnel).

6. Learned counsels for parties were
thereafter heard at length by the Court on 02
September
2021.
All
the
impleadment
applications were allowed and learned Senior
Counsels appearing on their behalf were also
heard. During hearing, the parties prayed for
time to place on the record a chart indicating the
categories in which the degrees and other
testimonials held by various petitioners would
fall in terms of the communication of 09 June
2020. Those charts were thereafter placed on the
record on 03 September 2021. The Court in the
course of hearing of this batch on 02 September
2021 placed the learned Additional Advocate
General as well as Sri G.K. Singh learned Senior
Counsel appearing for the Commission on notice
of a perceived need to ensure that in future
recruitments the employer as well as the
selecting body predetermine the issue of
equivalence in order to ensure a fair and
transparent selection being undertaken and
unnecessary litigation which may derail the
recruitment exercise itself being avoided. The
learned
Additional
Advocate
General
on
instructions of the Additional Chief Secretary
(Personnel) has stated that henceforth the said
Department of the State would ensure that the
issue of which qualifications would be liable to
be treated as equivalent would be settled before
the commencement of the selection process.
Insofar as the Commission is concerned,
although learned Senior Counsel was requested
to obtain instructions and apprise the Court of its
stand on the aforesaid aspect, it was stated that
the Commission needed further time for
consideration. The matter was thereafter closed
for judgment.

B. PRINCIPAL CHALLENGE

7. The writ petition as originally framed
essentially challenged the exclusion of the
petitioners on the ground that all of them held
degrees and testimonials which were either
equivalent or superior to the 'O' Level certificate
as issued by the NIELIT. The challenge in this
batch essentially rests on this plank with the
petitioners contending that they have been
wrongly excluded from the selection process.
The core question which therefore stands posited
is whether the qualifications possessed by the
petitioners renders them eligible to participate in
the selection process which restricted the zone of
consideration to those who held either an O level
certificate issued by NEILIT or any other
qualification equivalent thereto.

8. It was also contended that since in the
past the respondents had accepted those degrees
and diplomas as being in compliance with the
essential
qualifications
prescribed
for
appointment of Assistant Review Officers, it
was not open for them to deny the right to
participate in the present recruitment exercise.
Although in the writ petition it was also asserted
that the syllabus and course content of the
degrees and diplomas held by the petitioners
would establish that the petitioners had been
sufficiently instructed in all topics which form
part of the 'O' Level course, that issue was
neither pressed nor argued by learned counsels
appearing for the petitioners. The two principal
submissions which were ultimately urged for the
consideration of the Court are noted hereinafter.

9.

Elaborating
upon
the
aforesaid
contentions learned senior counsels submitted
that the degree and diploma courses which the
petitioners had undergone were liable to be
11 All. Vikas & Ors. Vs. State of U.P. & Ors.
277
considered as being in sufficient compliance
with the requirements of the rules. According to
the petitioners, the degrees held by them were
clearly liable to be viewed as qualifications
which were higher and superior to the 'O' Level
certificate which was an elementary course
administered by NIELIT. It was further
contended that since the degrees and diplomas
held by them included the study of Computers
and Computer Applications, those were liable to
be treated as superior and higher qualifications
in the same line of progression. Learned Senior
Counsels then assailing the decision of the
Expert Committee as constituted by the
Commission, submitted that the aforesaid
decision was clearly without jurisdiction since
the issue of equivalence was liable to be decided
by the appointing authority and in any case was
not an issue which could have been left for the
determination of the Commission which was
merely a selecting body. In support of the
aforesaid contention, Sri Nandan, learned Senior
Counsel placed reliance upon the following
passages from the judgment of the Supreme
Court in Dr. Krushna Chand Sahu Vs. State
of Orissa2:

"31. Now, power to make rules
regulating the conditions of service of persons
appointed on Govt. Posts is available to the
Governor of the State under the Proviso to
Article 309 and it was in exercise of this
power that the present rules were made. If the
statutory Rules, in a given case, have not been
made, either by the Parliament or the State
Legislature, or, for that matter, by the
Governor of the State, it would be open to the
appropriate
Government
(the
Central
Government) under Article 73 and the State
Government under Article 162) to issue
executive instructions. However, if the Rules
have been made but they are silent on any
subject or point in issue, the omission can be
supplied and the rules can be supplemented by
executive instructions. (See: Sant Ram Sharma
v. State of Rajasthan [AIR 1967 SC 1910:
(1968)1 SCR 111: (1968) 2 LLJ 830]).

32.
In
the
instant
case,
the
Government
did
neither
issue
any
administrative instruction nor did it supply the
omission with regard to the criteria on the
basis of which suitability of the candidates
was to be determined. The members of the
Selection Board, of their own, decided to
adopt the confidential character rolls of the
candidates who were already employed as
Homoeopathic Medical Officers, as the basis
for determining their suitability.

33. The members of the Selection
Board or for that matter, any other Selection
Committee, do not have the jurisdiction to lay
down the criteria for selection unless they are
authorised specifically in that regard by the
Rules made under Article 309. It is basically the
function of the rule-making authority to provide
the basis for selection. This Court in State of
A.P. v. V. Sadanandam: [1989 Supp (1) SCC
574 : 1989 SCC (L&S) 511: (1989)11 ATC 391]
observed as under : (SCC pp. 583-84, para 17)

"We are now only left with the
reasoning of the Tribunal that there is no
justification for the continuance of the old rule
and for personnel belonging to other zones being
transferred on promotion to offices in other
zones. In drawing such conclusion, the Tribunal
has travelled beyond the limits of its jurisdiction.
We need only point out that the mode of
recruitment and the category from which the
recruitment to a service should be made are all
matters which are exclusively within the domain
of the executive. It is not for judicial bodies to sit
in judgment over the wisdom of the executive in
choosing the mode of recruitment of the
categories from which the recruitment should be
made as they are matters of policy decision
falling exclusively within the purview of the
executive." (Emphasis supplied)

10. Dealing with the question of a higher
or superior qualification being liable to be
278 INDIAN LAW REPORTS ALLAHABAD SERIES
viewed as being in compliance with the essential
qualifications prescribed under the relevant
rules, Sri Nandan, firstly drew the attention of
the Court to the judgment of the Supreme Court
in
Chandrakala
Trivedi
Vs.
State
of
Rajasthan and others3 which interpreting the
word "equivalent" held thus:

"8. The word "equivalent" must be
given a reasonable meaning. By using the
expression "equivalent" one means that there are
some degrees of flexibility or adjustment which
do not lower the stated requirement. There has to
be some difference between what is equivalent
and what is exact. Apart from that, after a person
is provisionally selected, a certain degree of
reasonable expectation of the selection being
continued also comes into existence."

11. Sri Nandan then placed reliance upon
the judgment of the Supreme Court in Parvaiz
Ahmad Parry Vs. State of Jammu and
Kashmir and others4 and more particularly
paragraphs 15 and 16 of the report which are
extracted hereunder:

"15. 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.

16. 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."

12. Reliance was placed by learned Senior
Counsel also on the decision of the Supreme
Court in State of Uttarakhand and Others Vs.
Deep Chandra Tewari and Another5 to
submit that the candidature of a candidate
possessing a higher qualification cannot be
rejected on that basis. Reliance was placed on
the following observations as made by the Court
in that decision:

"11. 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 fulfill 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 said qualification a
candidate may not be suitable for the post, even
11 All. Vikas & Ors. Vs. State of U.P. & Ors.
279
if he possesses a "better" qualification but that
"better" qualification has no relevance with the
functions attached with the post."

13.

It
was
then
urged
that
the
communication of 22 July 2021 read along with
the letter of 09 June 2020 established beyond a
measure of doubt that the qualifications
possessed by all the petitioners had been duly
accepted by the State as being equivalent to the
'O' Level Certificate and that consequently the
objections as taken by the respondents here
clearly pale into insignificance. Sri Nandan
submitted that the comparative chart submitted
on behalf of the writ petitioners establishes that
all their testimonials have been accepted by the
State respondents as being in compliance with
the requirement of the rules and in any case
being sufficient evidence of being equivalent to
the 'O' Level certificate issued by NIELIT. In
view of the aforesaid it was submitted that the
candidature of the petitioners has been wrongly
rejected by the respondents.

The communication of 22 July 2021 is in
the following terms:-

"voxr djkuk gS fd orZeku esa vf/kdka'k
lsok fu;ekofy;ksa esa dEI;wVj ^*vks^* ysoy vFkok
led{k vgZrk HkrhZ ds fy, U;wure 'kSf{kd vgZrk ds
fu/kkZfjr dh xbZ gSA fdUrq ^*vks^* ysoy ds led{k
vgZrk dkSu&dkSu lh gksxh ;g Li"V ugha gSA

2& mYys[kuh; gS fd x`g foHkkx }kjk iqfyl
foHkkx esa fyfid] ys[kk ,oa xksiuh; lgk;d laoxZ esa
HkrhZ ds fy, ^*vks^* ysoy dh led{k vgZrk ds fu/kkZj.k
gsrq Jh Mh0,l0;kno] izks0 okbZ pkalyj@izks0 dEI;wVj
lkbal] ;w0ih0Vh0;w0 dh v/;{krk esa ,d lfefr dk
xBu fd;k x;k Fkk] ftlesa Mk0 j?kqjkt flag izks0 ,oa
foHkkxk/;{k] ,p0ch0Vh0vkbZ0dkuiqj rFkk Jh v'kjQ
vyh iz/kkukpk;Z jktdh; ikyhVsfDud vkneiqj xksaMk
lfEefyr FksA mDr lfefr dh laLrqfr;ksa ds vk/kkj ij
x`g
foHkkx
ds
'kklukkns'k
la[;k&889@6
iq&1&20&650&59@2002 Vh0lh0 fnukad 09&06&2020
1⁄4izfr layXu1⁄2] }kjk ^*vks^* ysoy dh led{krk ds lEcU/k
esa vkns'k fuxZr fd;s x;s gSa tks x`g foHkkx ij ykxw gSA

3& vr% lE;d fopkjksijkUr x`g foHkkx
}kjk ^*vks^* ysoy ds led{k fu/kkZfjr vgZrkvksa ij
vkbZ0Vh0foHkkx dk vfHker izkIr fd;k x;kA vkbZ0Vh0
foHkkx ds ijke'kZuqlkj x`g foHkkx }kjk ^*vks^* ysoy ds
led{k fu/kkZfjr dh xbZ vgZrkvksa ij vkbZ0Vh0foHkkx
}kjk lgefr O;Dr dh xbZ gSA bl izdkj x`g foHkkx ds
'kklukns'k ,oa vkbZ0Vh0foHkkx ds ijke'kZ ds vuqlkj
fuEufyf[kr vgZrk,a ^*vks^* ysoy ds led{k fu/kkZfjr
fd;s tkus ;ksX; gS%&

....

4- vr% bl lEcU/k esa eq>s dgus dk funs'k
gqvk gS fd d`i~;k mi;qZDr izLrj&3 esa of.kZr vgZrkvksa
dks ^*vks^* ysoy ds led{k fu/kkZfjr fd;s tkus ds
lEcU/k esa vk;ksx dk vfHker@lq>ko 'kh?kz miyC/k
djkus dk d"V djsaA"

14. The relevant parts of the order of 9
June 2020 are extracted hereinbelow:-

"x`g 1⁄4iqfyl1⁄2] vuqHkkx&1 y[kuÅ% fnukad% 09 twu]
2020

fo"k; %& m0iz0 iqfyl fyfid] ys[kk ,oa xksiuh;
lgk;d laoxZ 1⁄4r`rh; la'kks/ku1⁄2 fu;ekoyh] 2020 ds
iz[;kiu djk;s tkus ds dze eas dEI;wVj esa ^*vks^* Lrj izek.k
i= dh led{krk dk fu/kkZj.k ds lEcU/k easA

egksn;]

mi;qZDr
fo"k;d
vius
i=
la[;k%
Mhth&pkj&115 1⁄41721⁄2@98 1⁄4v1⁄2 fnukad 19-05-2020 dk
d`i~;k lanHkZ xzg.k djus dk d"V djsa] ftlds }kjk mRrj
izns'k iqfyl fyfid] ys[kk ,oa xksiuh; lgk;d laoxZ
1⁄4r`rh; la'kks/ku1⁄2 fu;ekoyh] 2020 esa nh x;h O;oLFkk ds
ifjisz{; esa dEI;wVj esa ^*vks^* Lrj izek.k i= dh led{krk
dk fu/kkZj.k] dEI;wVj vkijsVj xzsM&, ds inksa ij lh/kh
HkrhZ] 2013 dh 'kSf{kd vgZrk esa rduhdh f'k{kk dh
led{krk gsrq fnukad 03-03-2014 dks vk;ksftr cSBd dh
desVh esa lnL; 1⁄411⁄2 Jh Mh0,l0;kno] izks0 okbl
pkalyj@izks0 dEI;wVj lkabl] ;w0ih0Vh0;w0 y[kuÅ] 1⁄421⁄2
Mk0 j?kqjkt flag] izks0 ,oa foHkkxk/;{k dEI;wVj lkabl
,p0ch0Vh0vkbZ0 dkuiqj m0iz0 rFkk 1⁄431⁄2 Jh vljQ vyh]
iz/kkukpk;Z] jktdh; ikyhVsfDud] vkneiqj xks.Mk }kjk fd;s
x;s fu/kkZj.k ds vuqlkj iqfyl fyfid] ys[kk ,oa xksiuh;
lgk;d laoxZ esa ^*vks^* Lrj izek.k i= dh led{krk dk
fu/kkZj.k dk izLrko fd;k x;k gS] tks fuEuor~ gS%&

..........
280 INDIAN LAW REPORTS ALLAHABAD SERIES

3& bl lEcU/k esa eq>s ;g dgus dk funs'k
gqvk gS fd mRrj izns'k iqfyl fyfid] ys[kk ,oa
xksiuh; lgk;d laoxZ lsok 1⁄4r`rh; la'kks/ku1⁄2 fu;ekoyh]
2020 ds dze esa mjksDrkuqlkj ^*vks^* ysosy dh led{krk
fu/kkZj.k fd;s tkus gsrq miyC/k djk;s x;s izLrko ij
lgefr iznku dh tkrh gS] lkFk gh ;g Hkh lqfuf'pr
fd;k tk;s fd vU; dksbZ dkslZ@lVhZfQdsV mDr vgZrk
gsrq NwV rks ugha jgk gSA"

15. Sri Nandan lastly submitted that the
benefit of the decision as embodied in the
communications of 9 July 2021 and 9 June 2020
must stand extended to the petitioners also since
they were merely clarificatory. In support of this
submission Sri Nandan placed reliance upon the
following passage from the decision of the
Supreme Court in Praveen Kumar C.P. Vs.
Kerala Public Service Commission6: -

"26. Note (v) of Clause 7 of the
employment notification in the case PK and
Note (vi) of Clause 7 of the employment
notification in the case of AD required
disclosure of the equivalency orders. A plain
reading of the two GOs clearly reflect that their
degrees were equivalent to the requisite
qualifications contained in the eligibility criteria.
In the case of Aarya K. Babu (supra), the
disputed subject was recognized subsequently
and introduced as part of the eligibility criteria.
The principle of equivalency was not the main
reasoning on the basis of which the said case
was decided. The word "equivalence" in its plain
meaning implies something which is equal to
another. In the field of academics, application of
the principle of equivalency in relation to
degrees in two subjects would mean that they
had the same standing or status all along, unless
the official instrument according equivalency
specifies a date from which the respective
subjects would be treated as such, in express
terms or by implication.

27. Whether a GO would have
prospective effect or relate back to an earlier
date is a question which would have to be
decided on the basis of text and tenor of the
respective orders. The GOs which declared
appellants' degrees to be equivalent to those
required as per the applicable notifications were
not general orders but these two orders were
person specific, relating to the two appellants.
Once the GOs specifically declared that their
B.Ed. degrees were equivalent to the designated
subject which formed part of the employment
notification, the GOs in substance have to be
interpreted as clarificatory in nature and these
cannot be construed to have had elevated the
status or position of the degree they already had
after the declaration was made in the GOs. The
subject GOs only recognised an existing state of
affairs so far as the nature of the degrees were
concerned and did not create fresh value for the
degrees which the appellants possessed. Though
these equivalent orders were not in existence on
the dates of issue of employment notifications,
the GOs in substance recognize such status from
the dates of obtaining such degrees. The GOs do
not reveal any intervening circumstances which
could be construed to imply that the respective
degrees acquired the equivalent status because
of such circumstances occurring subsequent to
grant of their B.Ed. degrees. The aforesaid Notes
to Clause 7 of the employment notifications
postulated disclosure of the number and date of
the orders on equivalence. But the GOs to which
we have referred treat the equivalency to be
operating on the dates of obtaining such degrees.
Thus, the defect, if any, on disclosure
requirement, shall stand cured on issue of the
University orders followed by the GOs. The
GOs also specify the context in which these
were issued and refer to the appellants being
included in the list of KPSC. This being the
case, we do not think treating the appellants'
degrees as equivalent to those required under the
applicable notifications by the GOs issued in the
year 2019 would result in change in the rules of
the game midway. At best, it can be termed as
interpreting the rules when the game was on,
figuratively speaking. Such a course would, in
11 All. Vikas & Ors. Vs. State of U.P. & Ors.
281
our opinion, be permissible. For this reason, we
do not consider it necessary to deal with the
different authorities cited on the principle of
"change in the rule of the game midway". We
have opined that the appellants' degrees in B.Ed.
were equivalent to those required by the
employment notifications and the equivalency
orders were merely clarificatory in nature. For
this reason, we do not think there was any
fundamental breach of Notes (v) and (vi) of
Clause
7
of
the respective
employment
notifications in the cases of the appellants."

16. Learned senior counsel assailing the
stand of the State in light of the aforesaid
communications lastly submitted that in any
case it would be wholly illegal and arbitrary for
one Department of the State to accept the
qualifications of the petitioners to be equivalent
and the other taking a stand to the contrary. The
writ petitioners also placed reliance upon the
judgment rendered by a learned Judge of the
Court at its Lucknow Bench in Aakash Verma
and others vs. State of U.P. and others7.
Aakash
Verma
was
dealing
with
the
recruitment of Sub Inspectors and Assistant Sub
Inspectors. The rules which applied and
governed that selection also prescribed the
possession of an 'O' Level Certificate as an
essential qualification. That writ petition too had
been preferred by candidates who asserted that
although they held qualifications which were
superior and higher to the 'O' Level, they had
been wrongly excluded from the selection
process. The learned Judge proceeded to hold
that upon the consideration of the comparative
chart of all courses undergone by the petitioners
there with the syllabus 'O' Level Courses,
established that the topics and subject of study
comprised in the 'O' Level Course stood
included in the degrees and diplomas possessed
by the petitioners. The learned Judge then
proceeded to observe that the 'O' Level
Certificate was a foundational course in
Computers and that insistence of the respondents
there on allowing only such candidates who
have been appointed after training from a
particular institute gives rise to the issue of
"institutional exclusivity" which would be
wholly unreasonable. The learned Judge further
proceeded to observe that the insistence on
candidates possessing an 'O' Level Certificate
issued by NIELIT was wholly unreasonable.

C.
SUBMISSIONS
OF
THE
RESPONDENTS

17. Sri Neeraj Tripathi, the learned
Additional Advocate General, on the other hand,
submitted that the challenge raised in these writ
petitions must necessarily fail in light of the
judgment of the Full Bench of the Court in
Deepak Singh and Others Vs. State of U.P. And
Others8. It was contended that the issue of a
higher qualification being accepted does not arise
at all considering the rules governing the
recruitment process. It was submitted that the State
had taken a conscious decision to restrict the field
of eligibility only to those who possessed the O
level certificate. The learned Additional Advocate
General contended that the said decision was based
on a fair assessment by the State of the nature of
duties assigned and functions to be performed by
Assistant Review Officers. Sri Tripathi submitted
that for an Assistant Review Officer to efficiently
discharge his duties, elementary knowledge of
computers as may be obtained upon completion of
an O level course was found to be sufficient and
that it is not open for the petitioners to compel the
State to employ persons who may hold
qualifications which may be asserted to be
recognised as superior to or better than the O level
certificate. The State in essence asserted that the
prescription of a qualification fell within the
exclusive domain of the employer and that the
decision taken in respect of the present recruitment
cannot be said to be arbitrary or unfair.

18. Turning then to the decision of the
learned Judge in Aakash Verma, the learned
282 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional
Advocate
General
invited
the
attention of the Court to the judgment of the
Division Bench of the Court in State of U.P. Vs.
Aakash Verma9 reversing that judgment and in
light of which it was submitted that the
submissions as urged were not liable to be
accepted.

19. Sri Tripathi then proceeded to take the
Court through the communication of 20 July
2021 to submit that the same did not represent or
embody a principled decision taken by the
respondents on the question of equivalence. In
fact, Sri Tripathi contended that a careful perusal
of that communication indicates that the
respondents had merely sought the advice of the
Commission in that respect. Insofar as the
communication of 9 June 2020 is concerned, it
was the submission of the learned Additional
Advocate General that the same can have no
application since the concerned Department in
this batch has not adopted the decision embodied
in that order. It was pointed out that the
aforesaid communication related to the Police
Ministerial, Accounts and Confidential cadre
and cannot be applied to recruitment to the post
of Assistant Review Officers.

20. Sri G.K. Singh learned senior counsel
appearing for the Commission submitted that it
was constrained and bound to undertake the
exercise of evaluating equivalence since it had
received numerous applications from candidates
who did not possess the O level certificate and
relied upon degrees and diplomas which were
asserted to be either an equivalent or a better
qualification. Learned senior counsel submitted
that in the absence of any guidance or
predetermined
criteria
formulated
by
the
appointing authority, it was left to the
Commission to undertake the aforesaid exercise.
Sri Singh submitted that the decision of this
Court in Prashant Kumar Jaiswal Vs. State of
U.P.10 since affirmed by the Supreme Court in
Mukul Kumar Tyagi Vs. State of U.P.11
recognise the right of the recruiting agency to
undertake that evaluation.

D. THE CORE PRINCIPLES

21. Before embarking upon the exercise to
answer the principal question which arises for
determination and dealing with the rival
submissions noticed above, it would be relevant
to recognize the basic principles which must
guide the Court while considering challenges
like the present. The challenge raised in this
batch of writ petitions of candidates asserting
right of consideration by virtue of possessing a
qualification liable to be treated as equivalent or
higher is not novel. The question of whether a
qualification is liable to be recognized as
equivalent or one which is higher or superior to
that stipulated, has fallen for consideration
before the Court on numerous occasions in the
past. However, from the body of precedent
which has evolved around the subject, certain
well accepted and recognised first principles can
be culled out.

22. The first well recognized principle is
that the prescription of a particular qualification
must be recognized as being reserved for the
employer who must be recognised to have the
right to adjudge which qualifications would
suitably equip an incumbent to discharge the
duties and responsibilities attached to a
particular post or office. The prescription of a
qualification is a matter of recruitment policy
which stands reserved for the employer to
formulate bearing in mind the nature of
functions and duties attached to a particular post.
Courts must recognise the secondary function
that they are expected to perform in this regard
restricting the scrutiny of review to whether the
qualifications as prescribed can be said to be
arbitrary or irrational.

23. The second well settled precept which
must be reiterated is that it is not the function of
11 All. Vikas & Ors. Vs. State of U.P. & Ors.
283
the Court to adjudge or evaluate the suitability
or desirability of a particular qualification that
may be prescribed. Here too the Courts must
exercise due restraint and desist from treading
down this path since these issues must be left to
the fair judgment and assessment of the
employer and the experts in the field.

24. These principles as repeatedly
enunciated by this Court as well as the Supreme
Court were noticed in Asheesh Kumar And 6
Others Vs. State of U.P. And 2 Others12 in
the following terms:

"16. 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.

17. 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 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.