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

1. These two appeals have been filed against the judgment of High Court of judicature at Allahabad (Lucknow Bench), Lucknow, dated 04.10.2010 dismissing the Special Appeal No.446 of 2006 of the appellant as well as judgment dated 20.12.2012 dismissing the review application filed by the appellant. Parties shall be referred to as referred in the appeal.2. Brief facts of the case giving rise to these appeals are:The appellant belongs to other backward caste who has passed graduation (B.A.) with Psychology and has also donein 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 dated 30.08.2001 was issued by the Director, Social Welfare Department, U.P., advertising various posts under Director, Social Welfare Department and other department of State. Advertisement also contained recruitment for post of Psychologist (03 posts). The appellant submitted the application for the post ofThe appellant was issued admit card for appearing in the written examination. The appellant appeared in the written examination and was declared successful and included in the merit list. A letter dated 02.05.2003 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 on 12.05.2003. When appellant appeared on 12th May, he was informed that he is not eligible and his appointment for the post ofcannot be made. The appellant submitted a representation on 02.06.2003 to the respondent. The appellant having not been given appointment; hence, he filed a writ petition praying for the followingPRAYER(I) issue a writ order or direction including a writ in the nature of mandamus commanding the opposite parties to appoint the petitioner on the post of Psychologist for which the petitioner is fully eligible and qualified as per advertisement published for direct recruitment in SAMOOH GA.(II) Issue a writ order or direction including a writ in the nature of mandamus commanding the opposite not to appoint any other candidature on the post of Psychologist for which the petitioner is fully eligible.(III) Issue a writ order or direction including a writ in the nature of mandamus commanding the opposite parties not to harass and victimize the petitioner in any manner whatsoever.(IV) Issue such other order/orders as may deem just and proper by this Honble Court in the Circumstances of the case.(V) Award the cost of petition in favour of the petitioner.In the writ petition, learned single Judge directed for filing a counter affidavit and also bringing on record the copy of the Order passed on the representation of the appellant dated 02.06.2003. The appellant also filed a Contempt Application No.182 of 2004 in which Director, Social Welfare was directed to appear in person. An Order dated 19.04.2004 was passed by the respondent rejecting the representation of the appellant. The appellant prayed for amendment of the writ petition, praying for quashing the order dated 19.04.2004 which prayer was allowed to be added. Learned single Judge by its judgment dated 18.05.2006 dismissed the writ petition. Learned single Judge accepted the case taken up by the respondent in the counter affidavit 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 filedial appeal which too was dismissed. Review application filed thereafter was also rejected.Learned single Judge took the view that the appellant should have possessed the qualification of trained graduate and since he does not possess the said qualification, his claim has rightly been rejected. It is useful to quote the last portion of thethe petitioner should have possessed the qualification of trained graduate and since he does not possess the said qualification, which is eligible for on the post of L.T.grade teacher, I am of the view that the claim for appointment on the post of L.T. grade teacher, has rightly rejected.The petition is dismissed. No order as to cost.Present is a case where appellant was called to appear in written examination and interview and his name was included in the merit list. It was only at the time of verification of the certificate he was denied the appointment on the ground that he does not fulfill the qualification as advertised, whereas he fulfilled the advertised qualification.

Reasoning:
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.