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Ashish Kumar Vs. The State of Uttar Pradesh and Ors. - (Supreme Court) (31 Jan 2018)

When there is variance in advertisement and in statutory Rules, it is statutory Rules which take precedence



In facts of present case, the Appellant belongs to other backward caste who has passed graduation (B.A.) with Psychology and has also done post-graduation in Psychology from Kanpur University. Appellant has also obtained master degree in Human Resource Management and Industrial Relations from Lucknow University in the year 1997. An advertisement was issued advertising various posts under Director, Social Welfare Department and other department of State. Advertisement also contained recruitment for post of Psychologist.

The Appellant submitted the application for the post of 'Psychologist'. The Appellant appeared in the written examination and was declared successful and included in the merit list. A letter was issued to the Appellant asking the Appellant to appear along with original certificates for verification of documents. The Appellant appeared along with all the documents. When Appellant appeared, he was informed that, he is not eligible and his appointment for the post of 'Psychologist' cannot be made. The Appellant having not been given appointment; hence, filed a writ petition. High Court accepted the case taken up by the Respondent that, Appellant is not qualified for the post since he does not have training qualification i.e. L.T./B.T.B. Ed. The Appellant filed special appeal which too was dismissed. Review application filed thereafter was also rejected.

The qualifications clearly indicated that stroke (/) was used regarding qualifications, in alternative, i.e., one or either. The use of stroke (/) between Graduate/L.T./B.T.B. Ed. were in the same line meaning thereby one or either. Before the aforesaid qualifications, the words "in Psychology subject" has been used as prefix, which clearly means that, all the alternative qualifications were required to have with Psychology subject i.e. Graduation with Psychology/L.T./B.T.B. Ed. in the subject of Psychology. Hence, all the three i.e. Graduation, L.T., B.T.B. Ed. has to be in Psychology subject. Those persons who have done L.T./B.T.B. Ed. with Psychology subject are eligible like person graduated with Psychology, which is the plain and simple meaning of the advertisement which has been missed by the State as well as the High Court. There is no question of there being different set of candidates. All candidates, who have Psychology as their subject of Graduation/L.T./B.T.B. Ed. were eligible for the post and they all form one class, i.e. those, who have studied Psychology.

Janjatiya Vikas Shikshan Aur Kermchariverg Sewa Niyamawali, 1991,(1991 Rules) clearly indicate that, qualification for Psychologist is M.A. in Psychology. There is no other column in which Psychologist can be read in the entire rule. The B. Ed. is a preferential qualification and essential qualification is only M.A. in Psychology according to 1991 Rules. In the counter affidavit filed in this Court by the State, 1991 Rules have been accepted to be the relevant Rules regulating the recruitment. The qualification prescribed in the Rules does not provide for L.T./B.T.B. Ed. as essential qualification. Thus, non-possession of L.T./B.T.B. Ed. does not make him disqualified for the post as per Statutory Rules of 1991. Appellant is post-graduate in psychology and thus, also fulfill the qualification prescribed in the 1991 Rules. The Respondent in counter affidavit had themselves come with the case that the appointment has to be made in accordance with the statutory rules. When under the statutory rules, 1991, Appellant fulfill the qualification; there is no occasion to deny appointment to him.

Any part of the advertisement which is contrary to the statutory Rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, Appellant fulfills the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that, when there is variance in the advertisement and in the statutory rules, it is statutory Rules which take precedence.

It has also come on the record that, although the post of Psychologist was declared as dead cadre by the Government Order dated 9th May, 2008, but the posts were subsequently revived by another Government Order dated 17th August, 2010. The Appellant after being selected for the post of Psychologist was illegally denied issuance of appointment letter on wrong interpretation of the advertisement and the rules, hence, the Appellant has made out a case for issuing a direction to appoint him on the post of Psychologist. Respondents are directed to issue an appointment order to the Appellant in pursuance of his selection against the advertisement on the post of Psychologist within a period of two months. The judgments of the High Court are set aside and the appeals are allowed accordingly.


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