Case: MUKUL KUMAR TYAGI Vs. THE STATE OF UTTAR PRADESH

to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the appellants by the 90 : 10 allocation. 72. The present is a case where writ petitioners were not aggrieved by any qualifications as prescribed in the advertisement. The cause of action had arisen to them to seek judicial review only when the persons, who do not fulfil the essential qualifications were included in the select list. 73. Further, before issuance of appointment letters to the selected candidates an order was passed in writ petition on 31.07.2015 which has been extracted above wherein learned counsel appearing for corporation had made a statement that no final decision will be taken in pursuance of impugned select list. The High Court by its order dated 17.02.2016, extracted above has made all appointments subject to the result of the writ petition. 74. There is one more aspect which needs to be noted. The Commission had obtained an undertaking from the candidates who had claimed that they have equivalent qualification to CCC that in event their qualification is not found equivalent to CCC, whatever decision will be taken by the Commission same will be acceptable to him. One of such letters given by one of the candidates has been brought on record as Annexure P-3 in the short Rejoinder- Affidavit on behalf of petitioners in SLP(C) No.12943 of 2018 (Now Civil Appeal No.9026 of 2019), which is to the following effect: - To,Secretary,Power Service Commission, U.P. Power Corporation Limited Lucknow. Sub:- Regarding equivalency of CCC Certificate of Computer. Sir, I, Abhijeet Kumar son of Birendra Pandey do hereby declare that Computer Certificate submitted by me at the time of interview for the post of Technician Grade-2(Power) Under Advertisement No.4/PSC/2014, is equivalent to Course CCC conducted by NIELIT and the complete course covered under CCC includes in it. In case Computer Certificate submitted by me is not found equivalent to CCC, then whatever decision will be then by the Power Service Commission about my candidature, the same would be acceptable to me. In case my candidature is rejected, I will not raise any kind of claim. Dated 02.01.2015 Sd/- (ABHIJEET KUMAR) Roll No.2013120008 75. The present is a case where the writ petitioners had not raised any challenge to a particular qualification of any individual candidate rather their challenge was that without scrutiny large number of candidates, who were claiming qualification equivalent to CCC certificate have been included without there being any scrutiny and without they fulfil the qualification. The case of the writ petitioners was that the computer certificate issued by the private organisations and unregistered societies, who neither were recognised by the State Government or Central Government or by any statutory body could not issue any certificate. We may further notice that Division Bench also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity. 76. For the reasons as noted above, we are of the opinion that the judgment of learned Single Judge cannot be faulted on the ground that all the selected candidates were not impleaded in the writ petitions filed in the High Court challenging the select list dated 14.07.2015. 77. One of the submissions, which has been made by learned counsel for the appellant appearing in Civil Appeal No. 9028 of 2019 – Ravi Prakash & Ors. Vs. The State of Uttar Pradesh & Ors. is that although the names of the appellants have not been included in the original select list or revised select list, but there being number of vacancies due to non-joining and resignation and they having computer certificate equivalent to CCC certificate, the respondent be directed to fill those vacancies by persons, who are next in the order of merit. It is submitted that appellants are those who have CCC certificates. We may observe that the fact that there are several vacancies due to non-joining or resignation of the candidates is a subsequent event, with regard to which, it is for the Corporation to take any decision and no direction need to be issued in this appeal in this regard. If so advised, the appellants - aggrieved candidates can always represent to the Corporation. 78. One more submission, which has been advanced by learned counsel appearing for those candidates, who were initially in the select list dated 14.07.2015 and went out of the select list due to redrawing of select list is that there are still vacancies on which they can be accommodated, it is submitted that equities have to be adjusted by this Court in facts of this case. The candidates, who were already in the select list dated 14.07.2015 were appointed in August, 2015 and worked for about 03 years, which is a factor, which may be sympathetically considered by this Court. We only observe that these are the issues, which need to be addressed to the Corporation. Whether the existing vacancies have to be filled up by the recruitment, which was undertaken in 2014 or for existing vacancies any further steps are to be taken up, are the issues which have to be considered by the Corporation and we need not issue any direction in that regard. We, however, observe that there shall be liberty to such candidates to represent to the Corporation, which is the authority, to take a decision in accordance with law.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]43. In the special appeal, which was filed against judgment of learned Single Judge neither there was any ground nor any pleading that CCC certificate is being granted by any other body or authority. The Division Bench in the impugned judgment has not set aside the above finding of learned Single Judge that CCC certificate is granted only by NIELIT (formerly DOEACC Society)44. One of the submissions, which has been advanced by Shri Dushyant Dave, learned senior counsel for the respondent is that the requirement of CCC certificate by DOEACC Society, which was provided for by O.M. dated 29.01.2011 was done away by O.M. Dated 05.07.2013 issued by the Managing Director of the Corporation, which subsequently was ex-post facto approved on 23.11.2015, hence there was no requirement of CCC certificate from DOEACC/NIELIT. It is true that in the O.M. dated 29.01.2011 issued by the Corporation, specific requirement was of CCC certificate issued by the DOEACC Society as noted above. The recruitment on the above basis was held by the Commission in the year 2011 for filling 2974 posts of Technician Grade-II. The Managing Director on 05.07.2013 issued an O.M. where in place of the CCC certificate by DOEACC as provided in O.M. dated 29.01.2011, it was provided that candidate must possess CCC certificate or equivalent computer qualification, which advertisement dated 06.09.2014 was issued containing the computer qualification as mentioned in the O.M. dated 05.07.2013. When the Managing Director referred to Course on Computer Concept (CCC) in the O.M. dated 05.07.2013, where he mentions that CCC certificate, it cannot be held that CCC certificate by DOEACC or NIELIT was not contemplated. When no other body or authority is issuing CCC certificate, it has to be held that CCC certificate mentioned in the O.M. of Managing Director and the advertisement was the CCC certificate issued by DOEACC/NIELIT. The Uttar Pradesh Power Corporation had added the computer qualification as the essential requirement to serve a particular purpose and to select the candidates having such qualification so that they could perform their duties of the job well. It cannot be accepted that Managing Director by deleting the CCC certificate from DOEACC wanted to do away with CCC certificate by DOEACC or wanted to introduce an uncertainty or a window for all kind of certificates to be recognised. It is, however, to be noted that when the qualification of equivalent computer certificate was provided and added, any certificate, which can be held to be equivalent to CCC certificate, shall also confer eligibility to a candidate. Thus, the true determination, which was to be done with regard to an equivalent computer certificate relied by candidate was to find out whether it was equivalent to CCC certificate or not. But the change in the qualification by Managing Director by O.M. dated 05.07.2013 cannot be read to mean that in the CCC certificate or equivalent computer qualification, the equivalence was to be found out and in which it shall not include only the CCC certificate issued by DOEACC or NIELIT. Any other view shall not be in the interest of either Corporation or Commission47. As noted above, the Commission and the Corporation accepted the judgment of learned Single Judge dated 07.10.2017 and proceeded to redraw the select list. The decision of the Board of Directors of the Corporation as communicated to Electricity Service Commission by letter dated 29.01.2018 which has been brought on record in the counter affidavit filed on behalf of respondent Nos. 2, 3 and 4 in Civil Appeal No. 9026 of 2019 also refers the CCC certificate issued by NIELIT/DOEACC while determining the equivalence of the certificate claimed by the candidates who do not possess CCC certificate by DOEACC/NIELIT49. The candidates who had CCC certificate from NIELIT/DOEACC and who were included in the merit list dated 14.07.2015 were not affected by the judgment of the learned Single Judge dated 07.10.2017 since the list was quashed only insofar as those candidates included in the merit list who did not have CCC certificate by NIELIT/DOEACC. The Division Bench in the impugned judgment has erroneously held that employer after judgment dated 07.10.2017 did not take into consideration the CCC Certificate of DOEACC or NIELIT. Following are the observations made by Division Bench in this regard: -Heard learned counsels appearing on behalf of rival parties. At the threshold, it would be appropriate to state that the employer after accepting the judgment given by learned Single Bench has prepared a fresh select list and, while doing so, the certificate issued by DOEACC relating to CCC has not been taken into consideration50. The Division Bench was not correct in making above observations since neither the learned Single Judge vide its judgment dated 07.10.2017 directed for not taking into consideration CCC certificate by DOEACC nor Corporation or Commission deleted those names from the merit list who had CCC certificate from DOEACC51. We, thus, are of the considered opinion that CCC certificate as mentioned in the advertisement dated 14.09.2014 was CCC certificate as granted by NIELIT/DOEACCThe Clause (7) does not contemplates any self-declaration or self- certification of equivalence of computer qualification of the candidate. The advertisement neither envisaged nor permitted the candidates to give any self-certification or self-declaration that their computer qualification is equivalent to CCC55. The equivalence of qualification as claimed by a candidate is matter of scrutiny by the recruiting agency/employer. It is the recruiting agency which has to be satisfied as to whether the claim of equivalence of qualification by a candidate is sustainable or not. The purpose and object of qualification is fixed by employer to suit or fulfil the objective of recruiting the best candidates for the job. It is the recruiting agency who is under obligation to scrutinise the qualifications of a candidate as to whether a candidate is eligible and entitled to participate in the selection. More so when the advertisement clearly contemplates that certificate concerning the qualification shall be scrutinised, it was the duty and obligation of the recruiting agency to scrutinise the qualification to find out the eligibility of the candidates. The self- certification or self-declaration by a candidate that his computer qualification is equivalent to CCC has neither been envisaged in the advertisement nor can be said to be fulfilling the eligibility condition56. The Division Bench in the impugned judgment has held that self-certification by the candidates of equivalence of their computer qualification was sufficient to treat them eligible. The Division Bench has further observed that no error was committed by employer (Recruiting Agency) in relying on self- declaration by the candidates for computer qualification equivalent to CCC. Following observations have been made in the impugned judgment:-....In present days, computer literacy is just equivalent to letter literacy in earlier days. For letter literacy, self- certification was always acceptable and in line of the same, the computer literacy on self-certification can very well be accepted. In this factual background, we are of considered opinion that the employer did not commit any wrong while having a declaration on basis of self- certification for computer literacy equivalent to CCC57. We are unable to concur with the above view taken by the Division Bench. Scrutiny of Computer qualification claimed by candidate to be equivalent to CCC certificate is the obligation and duty of the recruiting agency/employer as per the advertisement itself as noted above. The recruiting agency or the employer cannot abdicate their obligation to scrutinise the eligibility of candidate pertaining to computer qualification and reliance on self- certification by the candidate is wholly inappropriate and may lead to participation of candidates who does not fulfil the mandatory qualification as per the advertisement58. In view of the foregoing discussions, we conclude that advertisement dated 14.09.2014 do not envisage self-certification by the candidate of equivalence to CCC certificate of the computer qualification and further, self-certification by the candidates of their computer qualification was not sufficient to treat them having passed the required qualificationPOINT NOS.3, 4 AND 5 TOGETHER60. It is relevant to note that in the earlier recruitment, which was held in 2011 for the post of Technician Grade-II only CCC certificate issued by DOEACC was part of mandatory qualification and it was for the 2014 recruitment that CCC certificate or equivalent computer qualification was provided for. When equivalent qualification to CCC was provided for as a mandatory qualification, it was incumbent on the Corporation as well as on the recruitment agency to reflect on the said issue and to lay down criteria or guidelines to declare equivalence of the CCC certificate. It is, thus, clearly proved from the record that no criteria or guidelines were framed or determined either by the Corporation or the Commission before completion of the recruitment process. The employer, who had issued advertisement and required fulfilling of qualification as prescribed ought to be keenly interested in selecting candidates, who fulfil the qualification and serve the post as per requirement of employer. Preparation of the select list without scrutiny of the computer qualification of the candidates, who do not possess CCC certificates is abdication of duty and obligation, both by Corporation and the Commission. It has been noted by learned Single Judge in his judgment that it was only after direction by the Court in the writ petition, the Corporation and Commission became alive to the obligation, which was on them to find out equivalence62. When issue is of the equivalence of a qualification, which is mandatory qualification for a post, there should be yardsticks declaring equivalent or equivalence, which has to be declared by any body entrusted with such jurisdiction and who is competent to declare equivalence of a qualification. In absence of any such declaration, it is for the employer to provide for the methodology for determining the equivalent qualification. The CCC certificate is issued by DOEACC/NIELIT, which is on a particular syllabus. Syllabus of the CCC certificate is placed before us at pages 225 to 230 of the paper book. For declaring any other certificate as equivalent to CCC, the syllabus on which CCC certificate has been granted is most material factor, which has to be looked into. In the present case, no exercise has been done by the Corporation or the Commission to determine the equivalence of the qualification claimed by the candidates, who had not passed CCC certificate from DOEACC/NIELIT. Learned Single Judge has, after consideration of materials on record, made following observations:-As is evident from the above discussion, the question of equivalence was left to hinge solely upon a self-declaration of the candidate. Neither the Corporation nor the Commission had any list of recognised equivalent certificates to guide them on the subject. The policy on equivalence which came about on 27 January, 2015 was a decision taken not only too late but as noted above suffered from fundamental flaws. There was a complete and evident lack of enquiry on course content. Leaving these issues to be decided solely on the basis of a self- declaration of candidates is unequivocal evidence of a failure to exercise powers and an abject abdication of functions vesting in the Commission. More fundamentally, none of the certificates other than CCC were shown or established to be a legally recognised equivalent65. The above view of the Division Bench cannot be approved when the advertisement itself referred to the scrutiny of the qualification and in the recruitment for the first time, the equivalent qualifications were also made mandatory qualification, both the Corporation and the Commission ought to have been more careful in the recruitment process since it is in the interest of both the Commission and the Corporation to select the candidates, who fulfil the qualification, which may subserve the public interest and fulfil the requirement of Article 16 of the Constitution of India. The Division Bench set aside the direction of learned Single Judge by which learned Single Judge had directed to exclude those, who did not have the CCC certificates. The direction of the learned Single Judge as extracted above is in two parts. Learned Single Judge directed :- (i) the select list drawn up pursuant to the advertisements in question insofar as it includes candidates who do not hold a CCC certificate conferred or recognised by NIELIT is quashed; (ii) The respondents shall in consequence redraw the select list restricting it to candidates who hold a recognised CCC certificate or a qualification recognised in law as being equivalent thereto66. The above direction indicates that select list insofar as the candidates, who had certificates from NIELIT/DOEACC was not quashed, their position in select list was not disturbed and select list was partly quashed only with regard to those candidates, who did not have CCC or NIELIT certificate. The object or purpose of the direction was to scrutinise the qualifications of those candidates, who have claimed equivalent certificate. The above direction of the learned Single Judge was only for the purpose to scrutinise the qualification of those candidates, who are found possessing equivalent computer qualification so as to retain their names in the select list. After the judgment of learned Single Judge dated 07.10.2017, the Commission in revising the merit list accepted the guidelines given under the Government Order dated 03.05.2016. The guidelines prescribed under the Government Order dated 03.05.2016 are as follows: -a) The qualification of High School or Intermediate examination with an independent subject or Computer Science from Madhyamik Shiksha Parishad, Uttar Pradesh or from any Institution/Education Board/Council established by the Central or any State Governmentb) If any candidate has obtained Diploma or Degree in Computer Science then he shall also be eligible to be recruited as Junior Assistant/StenographerThus, in the revised select list apart from candidates, who had CCC certificates from DOEACC/NIELIT, the candidates who were covered under guidelines dated 03.05.2016 were also treated as equivalent to CCC and were given place in the merit list subject to marks secured by them in the written test and interview67. The Division Bench opined that self- certification by the candidates for the qualification was sufficient to uphold the earlier action of the recruitment agency in which candidates were included without scrutiny of equivalent certificate. The direction of the learned Single Judge was in accordance with law and has done substantial justice, which did not deserve to be set aside by the Division Bench. We may further notice that after the exercise undertaken by the Commission for redetermining the select list, large number of candidates, whose certificates were not found equivalent to CCC certificates were deleted from the select list. Some of the candidates whose names were deleted from the select list due to their qualification having not found equivalent had filed the writ petitions in the High Court. One Writ Petition of Rohit (Writ Petition No. 13216 of 2018 -Rohit Vs. State of U.P. and 2 others), whose name was deleted on 13.05.2018 has been referred to and relied by the appellants. A special appeal was also filed by Rohit against the dismissal of the writ petition where Division Bench upheld the judgment of learned Single Judge holding that writ petitioner of that petition having not possessed CCC certificate was rightly excluded from the select list68. Thus, the deletion of names of certain candidates from the select list was upheld by an earlier Division Bench of the High Court. The Division Bench of the High Court in the impugned judgment without adverting to cases of those whose deletion of names were upheld by the earlier Division Bench of the High Court had restored the select list, which was in existence on 14.07.2015. For the above reasons, the judgment of the Division Bench cannot be sustained72. The present is a case where writ petitioners were not aggrieved by any qualifications as prescribed in the advertisement. The cause of action had arisen to them to seek judicial review only when the persons, who do not fulfil the essential qualifications were included in the select list73. Further, before issuance of appointment letters to the selected candidates an order was passed in writ petition on 31.07.2015 which has been extracted above wherein learned counsel appearing for corporation had made a statement that no final decision will be taken in pursuance of impugned select list. The High Court by its order dated 17.02.2016, extracted above has made all appointments subject to the result of the writ petition74. There is one more aspect which needs to be noted. The Commission had obtained an undertaking from the candidates who had claimed that they have equivalent qualification to CCC that in event their qualification is not found equivalent to CCC, whatever decision will be taken by the Commission same will be acceptable to him75. The present is a case where the writ petitioners had not raised any challenge to a particular qualification of any individual candidate rather their challenge was that without scrutiny large number of candidates, who were claiming qualification equivalent to CCC certificate have been included without there being any scrutiny and without they fulfil the qualification. The case of the writ petitioners was that the computer certificate issued by the private organisations and unregistered societies, who neither were recognised by the State Government or Central Government or by any statutory body could not issue any certificate. We may further notice that Division Bench also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity76. For the reasons as noted above, we are of the opinion that the judgment of learned Single Judge cannot be faulted on the ground that all the selected candidates were not impleaded in the writ petitions filed in the High Court challenging the select list dated 14.07.201577. One of the submissions, which has been made by learned counsel for the appellant appearing in Civil Appeal No. 9028 of 2019 – Ravi Prakash & Ors. Vs. The State of Uttar Pradesh & Ors. is that although the names of the appellants have not been included in the original select list or revised select list, but there being number of vacancies due to non-joining and resignation and they having computer certificate equivalent to CCC certificate, the respondent be directed to fill those vacancies by persons, who are next in the order of merit. It is submitted that appellants are those who have CCC certificates. We may observe that the fact that there are several vacancies due to non-joining or resignation of the candidates is a subsequent event, with regard to which, it is for the Corporation to take any decision and no direction need to be issued in this appeal in this regard. If so advised, the appellants - aggrieved candidates can always represent to the Corporation78. One more submission, which has been advanced by learned counsel appearing for those candidates, who were initially in the select list dated 14.07.2015 and went out of the select list due to redrawing of select list is that there are still vacancies on which they can be accommodated, it is submitted that equities have to be adjusted by this Court in facts of this case. The candidates, who were already in the select list dated 14.07.2015 were appointed in August, 2015 and worked for about 03 years, which is a factor, which may be sympathetically considered by this Court. We only observe that these are the issues, which need to be addressed to the Corporation. Whether the existing vacancies have to be filled up by the recruitment, which was undertaken in 2014 or for existing vacancies any further steps are to be taken up, are the issues which have to be considered by the Corporation and we need not issue any direction in that regard. We, however, observe that there shall be liberty to such candidates to represent to the Corporation, which is the authority, to take a decision in accordance with law.