# Vinay Kumar Yadav v. Union of India & Ors

- **Citation:** (2023) 1 ILRA 1133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-19
- **Case number:** Writ-A No. 20984 of 2022
- **Bench:** Surya Prakash Kesarwani, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-yadav-v-union-of-india-ors-49305
- **Pages:** 11

## Headnote

Law
-
Constitutional
validity
of
prescribing
minimum
qualification
-
The
Minimum
Qualification For Teachers in Pharmacy
Institution
Regulations,2014;
Pharmacy Act, 1948: Section 10, 18.
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
The impugned clause of the Regulation
2014 is not violative of the principal Act,
1948 - Since the Act, 1948 empowers the
Central Council to frame regulations prescribing
the minimum standard of education, therefore,
the
regulation
2014
prescribing
minimum
standard as First class B. Pharm amongst
others, is well within the powers conferred u/s
10 r/w S. 18 of the Act, 1948. (Para 13)

B. To prescribe essential qualifications for
appointment to a post is essentially within
the domain of the employer or the
competent authority. The employer is best
suited to decide the requirement that 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 and can not dwell into the issue
with regard to the minimum standard
prescribed by the competent authority by
Regulation 2014. (Para 14)

C. Prescribing "First Class B. Pharm" is not
violative of Article 14 and 21 of the
Constitution of India - Democracy depends
for its own survival on a high standard of
vocational
and
professional
education.
Therefore, in order to maintain standard of
education in Institutions imparting education in
the
field
of
pharmacy,
and
to
develop
knowledge and skill of students, it is a basic
requirement to recruit good quality and most
suitable
Teachers
in
order
to
maintain
excellence and standard of teaching in the
Institution. To achieve this object of the Act
1948, the impugned regulations provides for
certain educational qualification for recruitment
on the post of Principal, Professor, Associate
Professor and Lecturer/Assistant Professors.
One of the essential qualification for Associate
Professor and Lecturer/Assistant Professor is
"First Class B. Pharm" which cannot be said to
be irrelevant or violative of Article 14 or 21 of
the Constitution. (Para 15, 16)

The petitioner has not shown that how amongst
equally
situated
persons,
the
impugned
Regulations 2014 causes any discrimination,
therefore cannot be said to be violative of
Article 14 and no material could be placed to
demonstrate that the impugned provisions
violate fundamental rights of the petitioner
guaranteed u/Article 21 of the Constitution of
India. (Para 20 to 22)

D.
If
the
essential
educational
qualification
prescribed
under
the
Regulation 2014 for recruitment to the
post in question, is not satisfied by a
person, then he shall not be eligible to
apply for the post. The sole object of
prescribing qualification that a candidate must
have a consistently good academic record with
first class Degree for appointment to the post of
Associate
Professor
or
Lecturer/Assistant
Professor, is to select a most suitable person in
order to maintain excellence and standard of
teaching
in
the
institution
apart
from
administration. (Para 17)

E. In the absence of enabling provision for
grant of relaxation, no relaxation can be
made to relax the essential qualification.
Even if such a power is provided under the
Statute, it cannot be exercised arbitrarily. Such
a power cannot be exercised treating it to be an
implied, incidental or necessary power for
execution of the statutory provisions. In the
present set of facts even the regulation do not
confer any power to relax the aforesaid
essential qualification of "First Class B Pharm".
(Para 18)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

1 All. Vinay Kumar Yadav Vs. Union of India & Ors.
1133
against destitution. It must be remembered
in this connection that as against the
destitute family of the deceased there are
millions of other families which are
equally, if not more destitute. The exception
to the rule made in favour of the family of
the deceased employee is in consideration
of the services rendered by him and the
legitimate expectations, and the change in
the status and affairs, of the family
engendered by the erstwhile employment
which are suddenly upturned."

26. The judgment of a Bench of two
Judges in Mumtaz Yunus Mulani v. State
of Maharashtra [(2008) 11 SCC 384] has
adopted the principle that appointment on
compassionate grounds is not a source of
recruitment, but a means to enable the
family of the deceased to get over a sudden
financial crisis. The financial position of
the family would need to be evaluated on
the basis of the provisions contained in the
scheme. The decision in Govind Prakash
Verma [Govind Prakash Verma v. LIC,
(2005) 10 SCC 289 : 2005 SCC (L&S)
590] has been duly considered, but the
Court observed that it did not appear that
the earlier binding precedents of this Court
have been taken note of in that case."

12. Thus, as per the law laid down by
this Court in the aforesaid decisions,
compassionate appointment is an exception
to the general rule of appointment in the
public services and is in favour of the
dependents of a deceased dying in harness
and leaving his family in penury and
without any means of livelihood, and in
such cases, out of pure humanitarian
consideration taking into consideration the
fact that unless some source of livelihood is
provided, the family would not be able to
make both ends meet, a provision is made
in the rules to provide gainful employment
to one of the dependants of the deceased
who may be eligible for such employment.
The
whole
object
of
granting
compassionate employment is, thus, to
enable the family to tide over the sudden
crisis. The object is not to give such family
a post much less a post held by the
deceased.

13. Applying the law laid down by this
Court in the aforesaid decisions to the facts
of the case on hand, to appoint the
respondent now on compassionate ground
shall be contrary to the object and purpose
of appointment on compassionate ground.
The respondent cannot be said to be
dependent on the deceased employee, i.e.,
her mother."

15.

The
writ
petition
stands
dismissed. No order as to costs.
----------
(2023) 1 ILRA 1133
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Writ-A No. 20984 of 2022

Vinay Kumar Yadav ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Daya Shanker Yadav, Sri Rakesh Prasad

Counsel for the Respondents:
A.S.G.I., Vinay Kumar Singh

A.
Education
Law
-
Constitutional
validity
of
prescribing
minimum
qualification
-
The
Minimum
Qualification For Teachers in Pharmacy
Institution
Regulations,2014;
Pharmacy Act, 1948: Section 10, 18.
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
The impugned clause of the Regulation
2014 is not violative of the principal Act,
1948 - Since the Act, 1948 empowers the
Central Council to frame regulations prescribing
the minimum standard of education, therefore,
the
regulation
2014
prescribing
minimum
standard as First class B. Pharm amongst
others, is well within the powers conferred u/s
10 r/w S. 18 of the Act, 1948. (Para 13)

B. To prescribe essential qualifications for
appointment to a post is essentially within
the domain of the employer or the
competent authority. The employer is best
suited to decide the requirement that 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 and can not dwell into the issue
with regard to the minimum standard
prescribed by the competent authority by
Regulation 2014. (Para 14)

C. Prescribing "First Class B. Pharm" is not
violative of Article 14 and 21 of the
Constitution of India - Democracy depends
for its own survival on a high standard of
vocational
and
professional
education.
Therefore, in order to maintain standard of
education in Institutions imparting education in
the
field
of
pharmacy,
and
to
develop
knowledge and skill of students, it is a basic
requirement to recruit good quality and most
suitable
Teachers
in
order
to
maintain
excellence and standard of teaching in the
Institution. To achieve this object of the Act
1948, the impugned regulations provides for
certain educational qualification for recruitment
on the post of Principal, Professor, Associate
Professor and Lecturer/Assistant Professors.
One of the essential qualification for Associate
Professor and Lecturer/Assistant Professor is
"First Class B. Pharm" which cannot be said to
be irrelevant or violative of Article 14 or 21 of
the Constitution. (Para 15, 16)

The petitioner has not shown that how amongst
equally
situated
persons,
the
impugned
Regulations 2014 causes any discrimination,
therefore cannot be said to be violative of
Article 14 and no material could be placed to
demonstrate that the impugned provisions
violate fundamental rights of the petitioner
guaranteed u/Article 21 of the Constitution of
India. (Para 20 to 22)

D.
If
the
essential
educational
qualification
prescribed
under
the
Regulation 2014 for recruitment to the
post in question, is not satisfied by a
person, then he shall not be eligible to
apply for the post. The sole object of
prescribing qualification that a candidate must
have a consistently good academic record with
first class Degree for appointment to the post of
Associate
Professor
or
Lecturer/Assistant
Professor, is to select a most suitable person in
order to maintain excellence and standard of
teaching
in
the
institution
apart
from
administration. (Para 17)

E. In the absence of enabling provision for
grant of relaxation, no relaxation can be
made to relax the essential qualification.
Even if such a power is provided under the
Statute, it cannot be exercised arbitrarily. Such
a power cannot be exercised treating it to be an
implied, incidental or necessary power for
execution of the statutory provisions. In the
present set of facts even the regulation do not
confer any power to relax the aforesaid
essential qualification of "First Class B Pharm".
(Para 18)

Writ petition dismissed. (E-4)

Precedent followed:

1. Maharashtra Public Service Commission Vs
Sandeep Shriram Warade & ors. (2019) 6 SCC
362 (Para 14)

2. Zahoor Ahmad Rather & ors. etc. Vs Sheikh
Imtiyaz Ahmad & ors. etc., Civil Appeal No.
11853 - 2018, decided by the Hon'ble
Supreme
Court
by
judgment
dated
05.12.2018 (Para 14)

3. Prit Singh (Dr.) Vs S.K. Mangel, 1993 Supp
(1) SCC 714 (Para 17)

4. U.O.I. Vs Dharam Pal & ors. (2009) 4 SCC170
(Para 18)

5. St. of Orissa Vs Mamta Mohanty, (2011) 3
SCC 436 (Para 19)
1 All. Vinay Kumar Yadav Vs. Union of India & Ors.
1135
Present petition prays for writ order or
direction in the nature of certiorari
quashing -Clause (iv) of Table II of the
Notification dated 11.11.2014 containing
minimum qualification for teachers in
Pharmacy Institutions 2014, issued by
Registrar-cum-Secretary,
Pharmacy
Council of India, New Delhi.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. & Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. Heard Sri D.S. Yadav, learned
counsel for the petitioner and Sri Vinay
Kumar Singh, learned Central Government
Standing Counsel for the respondents.

2. This writ petition has been filed
praying for the following reliefs :

"A. Issue a writ order or direction in
the nature of certiorari3 quashing the -
Clause (iv) of Table II of the Notification
dated 11.11.2014 contained in minimum
qualification for teachers in Pharmacy
Institutions 2014 of Notification issued by
respondent no.3 (Annexure No.2 to the writ
petition).

B. Issue a writ order or direction in the
nature
of
mandamus
directing
the
respondents
to
declare
the
embargo
regulation as null and void being contrary
to the provisions of Article 14, 16, 19 and
21 of the Constitution of India."

3. Briefly stated facts of the present
case are that the petitioner has passed B.
Pharm in 2nd Division in the year 2005
from U.P. Technical University, Lucknow
and passed M. Pharm in the year 2009 from
Dr. M.G.R. Medical University, Chennai.

4. The petitioner has challenged the
validity of prescribing the minimum
qualification as "First Class B. Pharm"
by "The Minimum Qualification For
Teachers
in
Pharmacy
Institution
Regulations, 2014 " (hereinafter referred to
as "the Teachers Regulations, 2014").

Submissions
on
behalf
of
the
Petitioner

5. Learned counsel for the petitioner
submits that the petitioner is challenging
the constitutional validity of the aforesaid
regulation for reason that he is a
prospective candidate and intends to apply
for the post in the event any vacancy is
advertised in future.

6. Learned counsel for the petitioner
further
submits
that
prescribing
the
minimum qualification as First Class in B.
Pharm is violative of Articles 14 & 21 of
the Constitution of India inasmuch as the
embargo of First Class degree in graduation
course has not been provided in the
regulations framed by Medical Council of
India providing for minimum qualification
for teachers in medical education whereas
for teachers in pharmacy institution the
minimum qualification of First Class B.
Pharm degree has been incorporated under
the Regulations 2014.

7. No other submission has been
made
before
us
to
challenge
the
constitutional validity of the minimum
qualification "First Class B. Pharm" under
Regulations 2014.

Submissions
on
behalf
of
the
Respondents

8. Learned Central Government
Standing
Counsel
supports
the
regulations.

Discussion & Findings
1136 INDIAN LAW REPORTS ALLAHABAD SERIES

9. We have carefully considered the
submissions of learned counsels for the
parties.

10. The Regulation, 2014 has been
framed by the Pharmacy Council of India
with
the
approval
of
the
Central
Government
in
exercise
of
powers
conferred under Sections 10 & 18 of the
Pharmacy Act, 1948. Sections 10 and 18 of
the Pharmacy Act, 1948 (hereinafter
referred to as "the Act 1948") are
reproduced below :

"Section 10. Education Regulations.--
(1) Subject to the provisions of this section,
the Central Council may, subject to the
approval of the Central Government, make
regulations, to be called the Education
Regulations, prescribing the minimum
standard
of
education
required
for
qualification as a pharmacist.

(2) In particular and without prejudice
to the generality of the foregoing power, the
Education Regulations may prescribe--

(a) the nature and period of study and
of practical training to be undertaken
before admission to an examination;

(b) the equipment and facilities to be
provided for students undergoing approved
courses of study;

(c) the subjects of examination and the
standards therein to be attained;

(d) any other conditions of admission
to examinations.

(3) Copies of the draft of the
Education
Regulations
and
of
all
Subsequent amendments thereof shall be
furnished by the Central Council to all
State
Governments,
and
the
Central
Council
shall
before
submitting
the
Education Regulations or any amendment
thereof, as the case may be, to the Central
Government for approval under sub-section
(1) take into consideration the comments of
any State Government received within three
months from the furnishing of the copies as
aforesaid.

(4) The Education Regulations shall
be published in the Official Gazette and in
such other manner as the Central Council
may direct.

(5) The Executive Committee shall
from time to time report to the Central
Council on the efficacy of the Education
Regulations and may recommend to the
Central Council such amendments thereof
as it may think fit.

Section
18.
Power
to
make
regulations.--(1) The Central Council may,
with
the
approval
of
the
Central
Government, [by notification in the Official
Gazette,] make regulations consist with this
Act to carry out the purposes of this
Chapter.

(2) In particular and without prejudice
to the generality of the foregoing power,
such regulations may provide for--

[(a) the management of the property of
the Central Council;]

(b) the manner in which elections
under this Chapter shall be conducted;

(c) the summoning and holding of
meetings of the Central Council, the times
and places at which such meetings shall be
held, the conduct of business thereat and
the number of members necessary to
constitute a quorum;

(d) the functions of the Executive
Committee, the summoning and holding
meetings thereof, the times and places at
which such meetings shall be held, and the
number of members necessary to constitute
a quorum;

(e) the powers and duties of the
President and Vice-President;

(f) the qualifications, the term of office
and the powers and duties of the [Registrar,
Secretary], Inspectors and other officers
and servants of the Central Council,
1 All. Vinay Kumar Yadav Vs. Union of India & Ors.
1137
including the amount and nature of the
security to be furnished by the [Registrar
or any other officer or servant].

(g) the manner in which the Central
Register shall be maintained and given
publicity;

(h) constitution and functions of the
committees
other
than
Executive
Committee, the summoning and holding of
meetings thereof, the time and place at
which such meetings shall be held, and the
number of members necessary to constitute
the quorum.

(3) Until regulations are made by the
Central Council under this section, the
President may, with the previous sanction
of the Central Government, make such
regulations under this section, including
those to provide for the manner in which
the first elections to the Central Council
shall be conducted, as may be necessary
for carrying into effect the provisions of
this Chapter, and any regulations so made
may be altered or rescinded by the Central
Council in exercise of its powers under this
section.

[(4) Every regulation made under
this Act, shall be laid, as soon as may be
after it is made, before each House of
Parliament, while it is in session, for a
total period of thirty days which may be
comprised in one session or in two or
more successive sessions, and if, before
the expiry of the session immediately
following the session or the successive
sessions aforesaid, both Houses agree in
making any modification in the regulation
or both Houses agree that the regulation
should not be made, the regulation shall
thereafter have effect only in such
modified form or be of no effect, as the
case may be; so, however, that any such
modification or annulment shall be
without prejudice to the validity of
anything previously done under that
regulation.]"

11. Powers to frame regulations to
carry out the purpose of the Act 1948, has
been conferred upon the Central Council
under Section 18 of the Act, 1948. Sub
section (1) of Section 10 specifically
confers power upon the Central Council,
subject
to
approval
of
the
Central
Government,
to
make
education
regulations, prescribing the minimum
standard
of
education
required
for
qualification as a pharmacist. Sub section
(2) of Section 10 empowers the Central
Council to frame education regulation
prescribing (a) the nature and period of
study and of practical training to be
undertaken
before
admission
to
an
examination;
(b)
the
equipment
and
facilities to be provided for students
undergoing approved courses of study; (c)
the subjects of examination and the
standards therein to be attained; and (d) any
other
conditions
of
admission
to
examinations. Thus, to maintain standard of
education, it is necessary to have good
quality teachers.

12. By the Regulation 2014, to
maintain
the
minimum
standard
of
teaching, the minimum qualification and
experience for appointment as teachers in
various departments of pharmacy college or
institution imparting diploma in graduate
and post graduate education has been
prescribed as mentioned in the Schedule
appended to the Regulations. Clause (ii) of
the Schedule is relevant for the purposes of
the present case which alongwith notes is
reproduced below :-

"B.Pharm/Pharm.D/Post
graduate
course in Pharmacy -
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
Director/
Principal
/ Head of
Institutio
n
First Class
B.Pharm
with
Master's
degree
in
Pharmacy
(M Pharm)
in
appropriat
e branch of
specializati
on
in
Pharmacy
or
Pharm.D
(Qualificati
ons
must
be
PCI
recognised
)
with
PhD
degree
in
any
of
Pharmacy
subjects
(PhD
Qualificati
ons
must
be
PCI
recognized
)
Essential
15
years
experience
in
teaching
or
research
out
of
which 5 years must
be as Professor/
HOD in a PCI
approved/recognis
ed
pharmacy
college.
Desirable
Administrative
experience
in
a
responsible
position.
Professor Master's
degree
in
Pharmacy
(M.Pharm)
in
appropriat
e branch of
specializati
on
in
Pharmacy
or
Pharm.D
Essential
10
years
experience
in
teaching in PCI
Pharmacy
approved/
recognized
Pharmacy College
or
research
experience out of
which 5 years must
be
as
Associate
(Qualificati
ons
must
be
PCI
recognized
)
With PhD
degree
in
any
of
Pharmacy
subjects
(Ph.D.
Qualificati
ons
must
be
PCI
recognized
)
Professor
in
be
PCI
approved/recogniz
ed
Pharmacy
College.

Associate
Professor
First
Class
B.Pharm
with
Master's degree
in
Pharmacy
(M.Pharm)
in
appropriate
branch
of
specialization in
Pharmacy
(Qualification
must
be
PCI
recognized)
A
PCI
recognized
Pharm.D degree
holder shall also
be eligible for
the
posts
of
Associate
Professor in the
subjects
of
pathophysiology,
pharmacology
sand pharmacy
practice
3
years
experience
in teaching
or
research at
the level of
Assistant
Professor
or
equivalent
in
PCI
approved/
recognized
Pharmacy
College.

Lecturer/
First
Class A lecturer
1 All. Vinay Kumar Yadav Vs. Union of India & Ors.
1139
Assistant
Professor
B.Pharm
with
Master's degree in
Pharmacy
(M.Pharm)
in
appropriate branch
of specialization in
pharmacy
(Qualification must
be
PCI
recognised).
A PCI recognised
Pharm.D
degree
holder shall also
be eligible for the
posts
of
Lecturer/Assistant
Professor in the
subjects
of
pathophysiology,
Pharmacology and
pharmacy practice.
will be redesignated
as
Assistant
Professor
after
2
years
of
teaching
experience
in
PCI
approved/r
ecognised
Pharmacy
College.

Note:

(i)
Notwithstanding
anything
contained in the Education Regulations,
1991, the Pharm.D Regulations. 2008 or
any other documents approved by the PCI
the minimum qualification and experience
for the teaching faculty in pharmacy shall
be as mentioned in these regulations w.e.f.
the date of their publication in the Official
Gazette.

(ii) The existing teaching faculty
working on regular basis shall not be
affected. However, promotions of such
faculty
will
be
governed
by
these
regulations.

(iii) If a class or division is not
awarded at Master level, a minimum of
60% marks in aggregate or equivalent
cumulative grade point average shall be
considered equivalent to first class or
division, as the case may be.
(iv) The existing teaching faculty working
on regular basis can be appointed in any
other Pharmacy College/ Institution on the
same post from which such faculty member
retired/relieved, however, promotions of
such faculty member shall be governed by
these regulations. \

ARCHNA MUDGAL. Registrar-cumSecy.

[ ADVT. III/4/Exty/101/14]"

13. Since the Act, 1948 empowers the
Central Council to frame regulations
prescribing the minimum standard of
education, therefore, the regulation 2014
prescribing minimum standard as First
class B. Pharm amongst others, is well
within the powers conferred under Section
10 read with Section 18 of the Act, 1948.
Thus, the impugned clause of the
Regulation 2014 is not violative of the
principal Act, 1948.

14. To prescribe essential qualifications
for appointment to a post is essentially within
the domain of the employer or the competent
authority. The employer is best suited to
decide the requirement that a candidate must
possess according to the needs of the
employer and the nature of work. The court
can not lay down the conditions of eligibility
and can not dwell into the issue with regard
to the minimum standard prescribed by the
competent authority by Regulation 2014.
This settled position of law is also supported
by the law laid down by Hon'ble Supreme
Court in the case of Maharashtra Public
Service Commission Vs. Sandeep Shriram
Warade and others, (2019) 6 SCC 362
(Para 9) and Civil Appeal No.11853 - 11854
of 2018 Zahoor Ahmad Rather and Ors.
etc. Vs. Sheikh Imtiyaz Ahmad and Ors.
etc. decided by Hon'ble Suprme Court by
judgment dated 05.12.2018.

15. The submission of learned counsel
for the petitioner that prescribing "First
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
Class B. Pharm" is violative of Article 14
of the Constitution of India, has no leg to
stand.

16. Education is necessary to develop
the personality of a person as a whole and
in totality as it provides the process of
training and acquiring the knowledge,
skills, developing mind and character by
formal schooling. Therefore, it is necessary
to maintain high academic standard and
academic discipline along with academic
rigour. Democracy depends for its own
survival on a high standard of vocational
and professional education. Therefore, in
order to maintain standard of education in
Institutions imparting education in the filed
of pharmacy, and to develop knowledge
and skill of students, it is a basic
requirement to recruit good quality and
most suitable Teachers in order to maintain
excellence and standard of teaching in the
Institution. To achieve this object of the Act
1948, the impugned regulations provides
for certain educational qualification for
recruitment on the post of Principal,
Professor,
Associate
Professor
and
Lecturer/ Assistant Professors. One of the
essential
qualification
for
Associate
Professor and Lecturer/Assistant Professor
is "First Class B. Pharm" which can not be
said to be irrelevant or violative of Article
14 or 21 of the Constitution.

17. In the case of Prit Singh (Dr.) Vs.
S.K. Mangal 1993 Supp (1) SCC 714
(Para 12 & 13), Hon'ble Supreme Court
examined the case of a person who did not
possess the requisite percentage of marks
as per the statutory requirement and held
that he cannot hold the post. The sole
object of prescribing qualification that a
candidate must have a consistently good
academic record with first class Degree
for appointment to the post of Associate
Professor
or
Lecturer/Assistant
Professor, is to select a most suitable
person in order to maintain excellence
and
standard
of
teaching
in
the
institution apart from administration.
Thus,
if
the
essential
educational
qualification
prescribed
under
the
Regulation 2014 for recruitment to the post
in question, is not satisfied by a person,
then he shall not be eligible to apply for the
post.

18. In the absence of enabling
provision for grant of relaxation, no
relaxation can be made to relax the
essential qualification. Even if such a
power is provided under the Statute, it
cannot be exercised arbitrarily, vide Union
of India v. Dharam Pal & Ors., (2009) 4
SCC 170. Such a power can not be
exercised treating it to be an implied,
incidental or necessary power for execution
of the statutory provisions. In the present
set of facts even the regulation do not
confer any power to relax the aforesaid
essential qualification of "First Class B
Pharm".

19. In the case of State Of Orissa Vs.
Mamata Mohanty 2011 3 SCC 436 (Para
20, 21 and 68) Hon'ble Supreme Court
considered the challenge of essential
qualification of certain percentage of marks
in the recruitment of lecturer in affiliated
colleges and held it to be valid. The
relevant portion of the judgment in the case
of State Of Orissa Vs. Mamata Mohanty
(supra)(Para 20, 21 and 68) is reproduced
below :

"20.The
Government
of
Orissa,
Education and Youth Services Department
Resolution dated 5-9-1978 dealt with the
subject, qualification for recruitment of
Lecturers in affiliated colleges of the State
1 All. Vinay Kumar Yadav Vs. Union of India & Ors.
1141
of Orissa and the relevant part reads as
under:

"A consistently good academic record
with at least first or high second class (B in
the seven-point scale) at the Master's
degree in a relevant subject. In other
words, the University Grants Commission
intended to determine high second class as
average of minimum percentage of marks
of second division and first division as
(48+60) 54%...."

21. The Orissa State Gazette, 19-81983 published a Resolution dated 16-71983
prescribing
the
eligibility
for
appointment of teachers in affiliated
colleges. The relevant part reads as under:

"(a) Candidate should have an MPhil
degree or a recognised degree beyond
Master's level with at least a second class
Master's degree;

(b) A candidate not holding an MPhil
degree should possess a high second class
Master's degree i.e. 54% of marks and a
second
class
Honours/Pass
in
the
BA/BSc/BCom examination; or

(c) A candidate not holding an MPhil
degree but possessing a second class
Master's degree should have obtained a
first class in the Honours/Pass in the
BA/BSc/BCom examination

68. From the aforesaid discussion, the
following picture emerges:

(i) The procedure prescribed under the
1974 Rules has not been followed in all the
cases while making the appointment of the
respondents/teachers at initial stage. Some
of the persons had admittedly been
appointed merely by putting some note on
the noticeboard of the College. Some of
these teachers did not face the interview
test before the Selection Board. Once an
order of appointment itself had been bad at
the time of initial appointment, it cannot be
sanctified at a later stage.

(ii) At the relevant time of appointment
of the respondents/teachers there has been
a requirement of possessing good second
class i.e. 54% marks in Master's course
and none of the said respondents had
secured the said percentage.

(iii) Their appointments had been
approved after a long, long time. In some
cases after 10-12 years of their initial
appointment by the statutory authority i.e.
Director of Higher Education.

(iv) A candidate becomes eligible to
apply for a post only if he fulfils the
required minimum benchmark fixed by the
rules/advertisement. Thus, none of the
respondents
could
even
submit
the
application
what
to
talk
of
the
appointments.

(v) The so-called relaxation by Utkal
University was accorded by passing a
routine order applicable to a large number
of colleges, that too after a lapse of long
period i.e. about a decade.

(vi) Fixation of eligibility falls within
the exclusive domain of the executive and
once it has been fixed by the State
authorities under the 1974 Rules, the
question of according relaxation by Utkal
University could not arise and, therefore,
the order of condonation, etc. is a nullity.

(vii) The relaxation has been granted
only by Utkal University though Rule 2(i)
of the 1974 Rules defined "University"
means
Utkal
University,
Berhampur
University, Sambalpur University and Shri
Jagannath Sanskrit Vishwa Vidyalaya.

(viii) Granting relaxation at this stage
amounts to change of criteria after
issuance
of
advertisement,
which
is
impermissible in law. More so, it is
violative
of
the
fundamental
rights
enshrined under Articles 14 and 16 of the
Constitution of the similarly situated
persons, who did not apply considering
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
themselves to be ineligible for want of
required marks.

(ix) The exercise of condonation of
deficiency had not been exercised by any
university other than Utkal University.

(x) The post of the teachers i.e. the
respondents is transferable to any college
affiliated to any other university under the
1979 Rules.

(xi) The power to grant relaxation in
eligibility had not been conferred upon any
authority, either the university or the State.
In the absence thereof, such power could
not have been exercised.

(xii)
This
Court
inDamodar
Nayak[(1997) 4 SCC 560 : 1997 SCC
(L&S) 979 : AIR 1997 SC 2071] has
categorically held that a person cannot get
the benefit of grant-in-aid unless he
completes the deficiency of educational
qualification. Further, this Court inBhanu
Prasad Panda (Dr.)[(2001) 8 SCC 532 :
2002
SCC
(L&S)
14]
upheld
the
termination of services of the appellant
therein for not possessing 55% marks in
Master's course.

(xiii) The aforesaid two judgments
inDamodar Nayak[(1997) 4 SCC 560 :
1997 SCC (L&S) 979 : AIR 1997 SC 2071]
andBhanu Prasad Panda (Dr.)[(2001) 8
SCC 532 : 2002 SCC (L&S) 14] , could not
be brought to the notice of either the High
Court or this Court while dealing with the
issue. Special leave petition inKalidas
Mohapatra[ SLPs (C) Nos. 14206-09 of
2001 decided on 11-3-2002] has been dealt
with without considering the requirement of
law merely making the reference to
Circular dated 6-11-1990, which was not
the first document ever issued in respect of
eligibility. Thus, all the judgments and
orders passed by the High Court as well as
by this Court cited and relied upon by the
respondents are held to be not of a binding
nature. (Per incuriam)

(xiv) In case a person cannot get the
benefit of grant-in-aid scheme unless he
completes the deficiency of educational
qualification, question of grant of UGC pay
scale does not arise.

(xv) The cases had been entertained
and relief had been granted by the High
Court without considering the issue of
delay and laches merely placing reliance
upon earlier judgments obtained by diligent
persons approaching the courts within a
reasonable time.

(xvi) The authority passed illegal
orders
in
contravention
of
the
constitutional
provisions
arbitrarily
without
any
explanation
whatsoever
polluting the entire education system of the
State, ignoring the purpose of grant-in-aid
scheme itself that it has been so provided to
maintain the standard of education.

(xvii) The High Court granted relief in
some cases which had not even been asked
for as in some cases the UGC pay scale
had been granted with effect from 1-6-1984
i.e. the date prior to 1-1-1986 though the
same relief could not have been granted.
Thus, it clearly makes out a case of
deciding a case without any application of
mind.

(xviii) In some cases the UGC pay
scale has been granted by the High Court
prior to the date of according the benefit of
grant-in-aid
scheme
to
the
teachers
concerned which was not permissible in
law in view of the law laid down by this
Court inDamodar Nayak[(1997) 4 SCC
560 : 1997 SCC (L&S) 979 : AIR 1997 SC
2071] .

(xix) The grievance of the respondents
that not upholding the orders passed by the
High Court in their favour would amount to
a hostile discrimination is not worth
acceptance for the reason that Article 14 of
the Constitution envisages only positive
equality.
1 All. Uma Shanker Mishra Vs. State of U.P. & Ors.
1143

(xx) Concept of adverse possession of
lien
on
post
or
holding
over
are
inapplicable in service jurisprudence.

(xxi) The submission on behalf of the
respondents that government orders/
circulars/letters have been complied with,
therefore, no interference is called for, is
preposterous for the simple reason that
such
orders/circulars/letters
being
violative of statutory provisions and
constitutional mandate are just to be
ignored in terms of the judgment of this
Court inRam Ganesh Tripathi[(1997) 1
SCC 621 : 1997 SCC (L&S) 186 : AIR
1997 SC 1446] ."

20. Thus, the essential qualification of
"First Class B. Pharm" amongst other
essential qualifications provided under the
Regulation, 2014 for recruitment on the
post
of
Associate
Professor
and
Lecturer/Assistant Professor is wholly valid
and does not violate fundamental rights of
the petitioners under Article 14 and 21 of
the Constitution of India.

21. The petitioner has not shown
that
how
amongst
equally
situated
persons, the impugned Regulations 2014
causes any discrimination. Therefore, the
argument of learned counsel for the
petitioner that prescribing "First Class B.
Pharm" amounts to discrimination and
thus violative of Article 14 of the
Constitution of India, is wholly baseless
and is hereby rejected.

22. Nothing could be pointed out nor
any material could be placed by learned
counsel for the petitioner before us to
demonstrate that the impugned provisions
of
the
Regulation
2014
violates
fundamental
rights
of
the
petitioner
guaranteed under Article 21 of the
Constitution of India.

23. For all the reasons aforestated, we
do not find any merit in this writ petition.
Consequently, the writ petition fails and is
hereby dismissed.
----------
(2023) 1 ILRA 1143
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2022

BEFORE

THE HON'BLE RAJIV JOSHI, J.

Writ- A No. 39898 of 2015

Uma Shanker Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Pandey, Sri J.S. Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension - Uttar Pradesh
Collection Amins Service Rules, 1974 -
Fundamental
Rule
56
-
Substantive
appointment is not a condition precedent
for entitlement of pensionary benefit. The
appointment
has
to
be
a
regular
appointment
on
the
pensionable
establishment of the Government to earn
pension. (Para 12, 15)

In the present case, petitioner was initially
appointed as Seasonal Collection Amin on
03.02.1978 in pay scale 200-320 and thereafter,
was granted regular pay scale of Collection
Amin from 1982, until his retirement on
attaining
the
age
of
superannuation
on
31.12.2012. Petitioner was granted increments,
bonus, leave encashment and income tax was
regularly deducted from his salary. The pay
scale was revised from time to time. The
petitioner came to be appointed in the year
1978 and retired in the year 2012, having
rendered
service
for
three
decades
as
temporary employee appointed against a post.
(Para 2, 3)