Case: Ashish Kumar Vs. The State of Uttar Pradesh &amp; Others

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.18. The Division Bench in support of its view has interpreted the advertisement in the following manner:“..... Even otherwise, if the interpretation of the learned counsel for the appellant is taken as correct, it would mean that there will be a different set of candidates namely, one who possess B.Ed. degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled for appointment.”The above view of the Division Bench that accepting the interpretation of appellant would mean that there is different set of candidates namely one who possess B.Ed. Degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled for appointment. The above view does not support the interpretation, which we have put on the qualifications mentioned for the Psychologist i.e. Graduate L.T./B.T. B.Ed. were prefixed with the “in the subject of Psychology”. Thus, 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. Thus, the view of the High Court cannot be accepted.19. In the counter affidavit filed in this court also the said qualifications are being read by the respondent as graduate in Psychology with L.T./B.T. B.Ed. 1991 Rules have been filed as Annexure P1 along with the rejoinder affidavit of the appellant. It is relevant to note that in Schedule to the Rules, the post of Psychologist has been referred to at page 166; it is relevant to quote the qualification mentioned in the Schedule to the 1991 Rules, which is to the following effect:“TABLE”20. The above 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. It is relevant to note that although learned Single Judge has referred to 1991 Rules but he observed that 1991 rules lays down the qualification as trained graduate along with L.T./B.T. B.Ed., the above observations of learned Single Judge are not sustainable in view of the qualification as prescribed in 1991 Rules as extracted above.21. In the counter affidavit filed in this court by the state, 1991 rules have been accepted to be the relevant rules regulating the recruitment as has been noted in the Paragraph Xiii extracted above. 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 postgraduate 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.22. 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. In this context, reference is made in judgment of this Court in the case of Malik Mazhar Sultan & Anr. Vs. U.P. Public Service Commission & Ors., 2006 (9) SCC 507. Paragraph 21 of the judgment lays down above proposition which is to the following effect:"21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 01.07.2001 and 01.07.2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisements but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only of permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.”23. It has also come on the record that although the post of Psychologist was declared as dead cadre by the Government Order dated 09.05.2008, but the posts were subsequently revived by another Government Order dated 17.08.2010. Reference of 2009 Rules, namely, Uttar Pradesh Social Welfare Department of Teacher Service Rule, 2009, has been made which may have no relevance with regard to issue in the present case since the appointment in the present case was made in pursuance of the 1991 Rules and advertisement was dated 30.08.2001. 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.

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

Explanation:
1[ds]14. The careful reading of original advertisement which is in vernacular language indicate that what was prescribed was,Psychology subject graduate/L.T./B.T. B.Ed.Use of Stroke between graduate and L.T./B.T. B.Ed. indicates that all were alternate qualification. The advertisement cannot be read to mean providing for graduate in Psychology with L.T./B.T. B.Ed. as has been read by the High Court and contended by the respondent.15. The words graduate/L.T./B.T. B.Ed. are all alternative qualification which are prefixed with wordA harmonious reading may mean that a person graduate in subject of Psychology or L.T./B.T. B.Ed. with Psychology is eligible. When the post is of Psychologist, both graduation with Psychology and training certification i.e. L.T./B.T. B.Ed. have also to be with Psychology. The respondents have wrongly interpreted the advertisement to mean that the person should possess both graduate with Psychology as well as L.T./B.T. B.Ed. which on the face of it does not appear to be correct.There is one more reason to accept the meaning of advertisement as noticed above. In advertisement, with regard to various qualifications, wordst; (with), "????" (either) and strokehave been used. The appointing authority is well aware of the meaning of strokewhich has been frequently used in the qualifications which is apparent from the advertisement i.e. Annexure A1. The Appointing Authority used word with(???), when it wanted both the qualifications together. Wherever stroke (/) has been used it was used when either of the qualifications were indicated. The advertisement Annexure A1 contains qualifications for various posts and in several qualifications stroke (/) has been used. A look into those qualifications clearly indicate that stroke (/) was used in the other qualifications denoting one or eitherperusal of the above qualifications clearly indicated that stroke (/) was used regarding qualifications, in alternative, i.e., one or either. In above view of the matter, we are of the view that the use of stroke (/) between Graduate / L.T. / B.T. B.Ed. were in the same line meaning thereby one or either. It is relevant to notice that before the aforesaid qualifications, the wordshas 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.18. The Division Bench in support of its view has interpreted the advertisement in the followingEven otherwise, if the interpretation of the learned counsel for the appellant is taken as correct, it would mean that there will be a different set of candidates namely, one who possess B.Ed. degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled forabove view of the Division Bench that accepting the interpretation of appellant would mean that there is different set of candidates namely one who possess B.Ed. Degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled for appointment. The above view does not support the interpretation, which we have put on the qualifications mentioned for the Psychologist i.e. Graduate L.T./B.T. B.Ed. were prefixed with thethe subject ofThus, 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. Thus, the view of the High Court cannot be accepted.The above 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. It is relevant to note that although learned Single Judge has referred to 1991 Rules but he observed that 1991 rules lays down the qualification as trained graduate along with L.T./B.T. B.Ed., the above observations of learned Single Judge are not sustainable in view of the qualification as prescribed in 1991 Rules as extracted above.21. In the counter affidavit filed in this court by the state, 1991 rules have been accepted to be the relevant rules regulating the recruitment as has been noted in the Paragraph Xiii extracted above. The qualification prescribed in the Rules does not provide for L.T./B.T. B.Ed. as essential qualification. Thusof L.T./B.T. B.Ed. does not make him disqualified for the post as per Statutory Rules of 1991. Appellant is postgraduate 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.22. 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 09.05.2008, but the posts were subsequently revived by another Government Order dated 17.08.2010. Reference of 2009 Rules, namely, Uttar Pradesh Social Welfare Department of Teacher Service Rule, 2009, has been made which may have no relevance with regard to issue in the present case since the appointment in the present case was made in pursuance of the 1991 Rules and advertisement was dated 30.08.2001. 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.