Rajnesh Oswal JUDGMENT
Ali Mohd. Magrey, J.
1. These two Letters Patent Appeals arise from the judgment and order dated 19.09.2017 passed in writ petition no. 1951/2016 titled Basat Aslam Wani & ors. v. State of J&K & ors., whereby the learned Writ Court, while holding that the candidates, petitioners before the Writ Court, possessing higher Degree of B. Pharmacy, could not be treated as ineligible for the post of Junior Pharmacist advertised by the Services Selection Board (the Board) prescribing the minimum qualification of 10+2 and Diploma in Pharmacy, allowed the writ petition, quashed the select list prepared by the Board and directed reframing of the same and to recommend the writ petitioners for appointment against the advertised posts.
2. Appellants in LPASW no. 194/2018, being the Board and its Secretary, were respondents 4 and 5 in the writ petition; whereas appellants in LPASW no. 161/2017, being two of the four selectees, were respondents 7 and 9 in the writ petition.
3. Short facts of the case are noted. The Board by advertisement notice no. 07 of 2013 dated 16.05.2013 notified, inter alia, 07 posts of Junior Pharmacist, which included 04 Open Merit posts, in District Cadre Kulgam available in the Health Department. The notice notified the prescribed qualification for the post as 10+2 with Diploma in Pharmacy from a recognized Institute or State Medical Faculty (SMF) or any Institute recognized by Government. It appears that the writ petitioners, i.e., the contesting respondent in LPASW no. 194/2018 and 3 respondent nos. 6 & 7 in LPASW 161/2017 herein, who had obtained the Degrees of B. Pharmacy, also applied for the post. Their applications were duly entertained and they, alongwith other candidates, were called for written test on 31-08-2014. The writ petitioners and the private respondents in the writ petition were short listed. Thereafter, by a notification they were called for interview on 10.02.2015 with advice to bring photocopies of the certificates with them. Record shows that the writ-petitioners were provisionally allowed to participate in the interview subject to B. Pharmacy being the Degree relevant to the eligibility criteria. Endorsement to this effect was made on their forms. After the interviews were conducted, the Secretary of the Board addressed letter no. SSB/Sel/Secy/2015/16391 dated 18.12.2015 to the Commissioner/Secretary to Government, Health and Medical Education Department, seeking clarification whether the candidates having the qualification of B. Pharmacy could be considered for the post of Junior Pharmacist. The Health and Medical Education Department, in turn, vide communication dated 25.01.2016, referred the matter to the Director, Health services, Kashmir/Jammu. The Director informed the Administrative Department that the Degree of B. Pharmacy was not included in the recruitment rules for appointment as Medical Assistant (now Pharmacist). This clarification was conveyed to the Board vide communication dated 17.03.2016 by Under Secretary to Government, Health and Medical Education Department. In consequence thereof the Board selected the private respondents 6 to 9. It is in the background of these facts that the writ petition was filed by two of the candidates possessing Degree of B. Pharmacy, seeking quashing of the Select List etc.
4. It may be mentioned here that during the course of hearing before the learned Writ Court, respondent No. 6 appears to have produced a copy of the merit list of the candidates prepared by the Board before seeking clarification from the Health and Medical Education Department, obtained by him under Right to Information Act, wherein the writ petitioners 1 and 2 were shown at serial numbers 3 and 4 respectively. However, in the remarks column they were shown to be not eligible "N.E. (B. Pharmacy)".
5. The official respondents and the selectee-respondents in the writ petition contested the writ petition, principally on the ground that B. Pharmacy was not the qualification prescribed by the Rules for the post of Junior Pharmacist. The Board also stated that the matter was, in fact, referred to the Government in the Health Department who replied that in terms of the Service Rules, the prescribed qualification for the post was 10+2 with Diploma in Pharmacy and not B. Pharmacy.
6. However, the stand taken by the appellants did not find favour with the learned Writ Court. The learned Writ Court in para 13 of the judgment recording that 'the issue, in essence, is as to whether petitioners in view of possessing higher degree (B. Pharmacy) could be excluded', allowed the writ petition, holding as under:
"17. In terms of Govt. order No. 325-HME of 2013, the minimum qualification prescribed for the post of Junior Pharmacist is 10+2 with diploma in Medical Assistant/Pharmacist from recognized institute, SMF or any institute recognized by the Government. Clause (11) of the Advertisement Notice also suggests that the qualification prescribed is 'minimum'. In case qualification as reflected in the Advertisement Notice would have been the only qualification prescribed by recruitment rules consistent with the job requirement, then the candidates with higher degree could be excluded but that is not so. The candidates possessing higher degree i.e. 5 B. Pharmacy by no stretch of imagination could be treated as ineligible. The view taken by the respondent Board runs contrary to the Govt. order No. 325-HME of 2013 dated 16.05.2013 as well as Clause (11) of the Advertisement Notice. The petitioners, for the stated facts and reasons, being eligible and in order of merit figuring at serial No. 3 and 4, should have been selected. The select list impugned, in view of above, has to be reframed vis-à-vis four posts of Junior Pharmacist category OM."
Holding thus, the learned Writ Court has directed as under:
"18. Viewed thus, the writ petition is allowed. Select list for the posts of Junior Pharmacist Health Department District Cadre Kulgam advertised vide Advertisement Notice No. 07 of 2013 item No. 654 is quashed. The respondent Board is directed to reframe the select list in accordance with merit position of the candidates as per the merit list referred above and to recommend appointment of meritorious candidates in order of merit, in accordance with rules, within a period of four weeks from today."
The aforesaid finding and the judgment of the learned Writ Court is challenged in these two LPAs on the very same grounds taken by the selectees before the learned Writ Court.
7. There is no dispute about the fact that the qualification prescribed for the post of Medical Assistant, which was later redesignated as Junior Pharmacist, is 10+2 with Diploma in Pharmacy. Given the facts of the case as narrated hereinabove, the real question is not whether Bachelor in Pharmacy is a higher degree, but it is whether Bachelor in Pharmacy could be treated as higher degree vis-a-vis the qualification of Diploma prescribed by the Rules for the post of Junior Pharmacist? The whole case hinges only on the determination of this question.
8. When these appeals came up for consideration before the Court on 27.08.2020, Mr. Jehangir Iqbal, learned senior counsel, for appellants in LPASW 161/2017, submitted that the case is squarely covered by a decision of the Supreme Court in Zahoor Ahmad Rather v Imtiyaz Ahmad, MANU/SC/1422/2018 : (2019) 2 SCC 404 arising from a Division Bench judgment dated 12.10.2017 of this Court in Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA(SW) no. 135/2017.
9. In Zahoor Ahmad Rather v Imtiyaz Ahmad (supra), the facts were that on 23.2.2013, the Board advertised, inter alia, 3675 posts of Technician III which were created by the Government in various districts of the erstwhile State of Jammu and Kashmir in the Power Development Department. The qualification for the post was 'Matric with ITI in relevant trade'. Note 3 of the advertisement notice contained the following stipulation which every applicant was required to fulfill:
"(3) In possession of the prescribed academic/professional/technical qualifications and fulfill all other eligibility conditions wherever required as shown against each post in the annexures by or before last date of receipt/submission of application forms i.e. 31.3.2013."
The advertisement also contained the following stipulation in Note 12:
"12. The prescribed qualifications reflect the bare minimum requirement of the job and mere possession thereof shall not entitle a candidate to be called for written test/interview and also grant weightage to the higher qualification in relevant line/discipline as may be decided by the Board."
10. The appellants before the Supreme Court also applied for the post of Technician III. The first appellant before the Supreme Court possessed Diploma in Electrical Engineering, appellants 2, 3 and 4 held Diploma in Electronics and Communication, and appellants 5 and 7 6 held Diploma in Electrical Engineering. None of them possessed the ITI certification. They were duly interviewed. However, the SSB, on 31.1.2015, held its 116th meeting wherein one of the agenda was as under:
"Agenda No. 11. During the course of scrutiny of documents in the process of framing the selection lists for the post of Technician III (Power Development Department), it has been observed that the Convener of the Interview Committee (in some districts) has conducted the interview of candidates having Diploma in Electrical Engineering provisionally while as in some other districts, the candidates having Diploma in Electronics and Communication Engineering, Electrical Engineering, BE (Electrical) have been declared as not eligible for the post in question. Furthermore, the candidates having ITI trade in general Electronic Mechanic, Welder (Gas & Electric), Instrument Mechanic, Welder (Gas & Arc), Information Technology and Electronic Systems Maintenance have also been interviewed for the post in question."
However, the Board decided that only ITI in relevant trade viz. Electrician, has to be considered as prescribed in the advertisement notification.
11. After the select list was published, the appellants before the Supreme Court, aggrieved by their non-inclusion in the select list, filed writ petition seeking consideration of their candidature for the said post of Technical III on the basis of their position in the merit list. The learned Single Judge allowed their writ petition on the ground that it was not open to the Board to exclude them after the process of selection was set in motion and they having been subjected to written test and interview. The learned Single Judge took the view that rules could not have been changed after the selection process had been initiated, particularly since the list of disqualified candidates, earlier 8 published by the Board, did not include them. The second ground which had weighed with the learned Single Judge in that case was that the holder of a diploma is eligible for the higher post of Junior Engineer and hence a candidate who holds a diploma must be 'presupposed' to hold the lower qualification of an ITI.
12. In the letters patent appeals, however, the Division Bench of this Court held that the advertisement mandated an ITI in the relevant trade as a condition of eligibility and the Board had not granted any weightage to a higher qualification in terms of Note 12 of the advertisement notice. The Division Bench noted that the Board had categorically taken a decision that it was only an ITI in the relevant trade with Matric qualification that met the prescribed qualification.
13. Before the Supreme Court the argument taken was that the prescribed qualification of Matric with ITI was the bare minimum requirement of the job and that Note 12 of the advertisement Notice contemplated that weightage could be granted to a higher qualification in the relevant line or discipline as may be decided by the Board.
14. Referring to the first ground on which the learned Single Judge was persuaded to allow the writ petition, i.e., that the Board had changed the rules in the midst of the selection process, the Supreme Court observed that the learned Single Judge was clearly in error. As regards the second ground, that a candidate who holds a diploma must be presupposed to hold the lower qualification of an ITI, the Supreme Court observed that this line of reasoning appears to be based on the judgment of a two-Judge Bench of the Supreme Court in Jyoti K. K. v. Kerala Public Service Commission, MANU/SC/0482/2002 : (2010) 15 SCC 596. Referring to and relying on its other earlier decisions in P. M. Latha v. State of Kerala, MANU/SC/0190/2003 : (2003) 3 SCC 541, and Yogesh Kumar v State (NCT of Delhi), 9 MANU/SC/0191/2003 : (2003) 3 SCC 548, the Supreme Court in para 26 to 29 of the judgment held as under:
"26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti KK in the subsequent decision in Anita (supra). The decision in Jyoti KK turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily pre-supposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The state as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. The decision in Jyoti KK turned on a specific statutory rule under which the holding of a higher qualification could pre-suppose 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 of the High Court was justified in reversing the judgment 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 of the Division Bench.
27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision making. The State as a public 10 employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti KK must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti KK turned.
28. Ms Wadia sought to draw sustenance from the fact that the holder of an ITI certification can obtain lateral entry to the diploma course. The point of the matter, however, is that none of the appellants fit the description of candidates who had secured an ITI certification before seeking a lateral entry to a diploma course. Plainly, when an ITI with matric is required, a person who does not hold that qualification is not eligible.
29. The submission based on Note 12, urged by Ms Wadia, cannot be accepted. The stipulation that the qualification prescribed is the bare minimum requirement of the job emphasises that it is an essential requirement, a threshold which cannot be dispensed with. Under Note 12, the Board is entitled to assign additional weightage for a higher qualification. Whether such a weightage should be assigned is a matter for the Board to determine. The SSSB did not assign an additional weightage for a higher qualification. In not exercising an enabling power, no fault can be found with the SSSB. An enabling provision postulates a discretion which may or may not be exercised. A candidate has no vested right to assert that the Board must as a mandate assign an additional weightage to a higher qualification. Whether to do so or not is a matter for the Board to determine. All that Note 12 postulates is that the mere possession of the prescribed qualification will not entitle a candidate to be called for the written test or interview. The Board may shortlist among eligible candidates by granting a weightage to a higher qualification in the relevant line or discipline. But the words 'as may be decided by the Board' in Note 12 indicate that the Board is vested with a discretion in 11 pursuance of an enabling power which it may or may not exercise."
(Underlining supplied)
15. Thus, as seen from the above judgment of the Supreme Court, the law is settled that prescription of qualification for a post is a matter of recruitment policy, and that the State as employer is entitled to prescribe qualifications as a condition of eligibility after taking into consideration nature of job, aptitudes required for efficient discharge of duties, functionality of qualifications, course content leading up to acquisition of qualification etc. Further, that judicial review cannot expand upon the ambit of prescribed qualifications to decide equivalence thereof. In absence of specific statutory rule under which holding of higher qualification could presuppose acquisition of lower qualification, such inference cannot be drawn. It is also settled that the Note of the advertisement notice, postulating that mere possession of prescribed qualification would not entitle a candidate to be called for written test or interview and the Board may shortlist among eligible candidates by granting weightage to higher qualification as may be decided by it, merely indicates that Board is vested with discretion in pursuance of enabling power which it may or may not exercise, and that a candidate has no vested right to assert that Board must as a mandate assign additional weightage to higher qualification.
16. In the instant case, as already mentioned similar grounds were taken by the writ petitioners in their writ petition as had been taken in Zahoor Ahmad Rather v Imtiyaz Ahmad (supra). Furthermore, in these letters patent appeals, identical points, as have been decided by the Apex Court in Zahoor Ahmad Rather v Imtiyaz Ahmad (supra), have been taken. Herein the qualification for the post as prescribed by 12 the Rules framed by the Government is 10+2 with Diploma in Pharmacy. Neither of the writ petitioners possessed the diploma in Pharmacy. Instead, they, admittedly, possessed the qualification of B. Pharmacy which is neither the higher degree for Diploma in Pharmacy, nor is Diploma in Pharmacy the lower course prerequisite for B. Pharmacy. The two courses are entirely different and distinct from each other. In fact, it is contended on behalf of the appellants-selectees that the syllabi for the two courses is entirely different and distinct, which statement is not denied by the writ-petitioners. It is averred that the course of steady for Diploma Pharmacy is oriented to the job of Junior Pharmacist. It is one thing to possess higher qualification and it is another thing to possess higher qualification commensurate to the job requirements of a post. It is the Government which is competent to decide what should be the qualification prescribed for a post and, in the instant case, the Government has, in fact, made Rules, namely, prescribing the qualifications. These Rules do not contain any provision stating that B. Pharmacy is equivalent to Diploma in Pharmacy or that B. Pharmacy presupposes acquisition of Diploma in Pharmacy. In these circumstances, we are of the view that this Court does not have the power to substitute the Government's policy or decision in this regard by its own opinion or view, or to add to the Rules what is not contained therein.
17. Participation of the writ petitioners in the written test and interview or the fact that their names had figured in merit list would not alter the situation and make them eligible for the post, especially so when the Government had clearly conveyed to the Board that candidates possessing B. Pharmacy were not eligible for the post.
18. In light of the above, we are of the view that the learned Writ Court, while holding that the writ petitioners possessed higher degree and that they could not be excluded from the select list, has been clearly in error. It is held that a candidate holding the Degree of Bachelor of Pharmacy (B. Pharmacy) is not eligible for appointment to the post of Junior Pharmacist in the Health Department of erstwhile State of J&K (now UT of Jammu and Kashmir), for which Diploma Pharmacy is the qualification prescribed by the Rules.
19. These two appeals are, accordingly, allowed. The impugned judgment dated 19.09.2017 passed by the learned Writ Court in writ petition no. 1951/2016 titled Basit Aslam Wani & anr. v. State of J&K & ors., is set aside. Consequently, the writ petition of the writ petitioners is dismissed. This also disposes of the connected CM(s). Any restraint order against making appointments of the selectees pursuant to the selections so made by the Board against the said posts shall stand vacated. The Board and the Official respondents are free to complete the process of recommendations and/or appointments against the post.
20. No order as to costs.
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