Case: ZAHOOR AHMAD RATHER Vs. SHEIKH IMTIYAZ AHMAD

2. These appeals arise from a judgment of a Division Bench of the High Court of Jammu and Kashmir dated 12 October 2017. While allowing the Letters Patent Appeal, the High Court set aside a judgment of a learned Single Judge and, in consequence, directed that the writ petitions shall stand dismissed.By a Government Order dated 4 December 1996, 23,297 posts were created in various departments of the State of Jammu and Kashmir. 5,330 fresh posts were created in the Power Development Department, including among them 3,675 posts ofand 200 posts of Junior Engineer. The qualification for the post ofwas ?Matric with ITI?. The qualification for the post of Junior Engineer, which ranks higher in the hierarchy of posts, was a B E (electrical) / diploma (electrical).On 23 February 2013, an advertisement was issued by the J & K State Service Selection Board (SSSB) for filling up the posts of TechnicianIII in the Power Development Department for various districts including Budgam, Srinagar and Ganderbal. Note 3 of the advertisement contained the following stipulations, which every applicant was required toIn possession of the prescribed academic/ professional/ technical qualifications and fulfil 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.advertisement also contained the following stipulation in NoteThe 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 theC 1 to the advertisement specified the qualifications prescribed for each post which was advertised. For the post ofin the Power Development Department, the prescribed qualificationwith ITI in relevant trade.The appellants applied for the post ofThe first appellant holds a Diploma in Electrical Engineering. Appellants 2, 3 and 4 hold a Diploma in Electronics and Communication. Appellants 5 and 6 hold a Diploma in Electrical Engineering. None of them possesses the ITI certification.On 14 August 2014, a list of disqualified candidates was notified by the SSSB. The appellants were not part of that list and were called for a written test on 23 August 2014. On 20 November 2014, a notification was issued for the purpose of shortlisting candidates who had cleared the written test, for the interview. The notification reflected the category – open or reserved – under which each candidate was considered. Interviews were conducted for the districts of Budgam, Srinagar and Ganderbal at which the appellants appeared.On 31 January 2015, the SSSB held its 116 th meeting at which, among the subjects on the agenda, was theNo. 11. During the course of scrutiny of documents in the process of framing the selection lists for the post of(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, B.E. (Electrical) have been declared as not eligible for the post in question. Furthermore, the candidates having ITI trade in general Electronic Mechanic, Weldar (Gas & Electric), Instrument Mechanic, Weldar (Gas & Arc), Information Technology and Electronic Systems Maintt. have also been interviewed for the post in question.The Minutes of the Meeting record that the following decision was arrived at by theAfter threadbare discussion, it was decided that only ITI in relevant trade viz Electrician has to considered as prescribed in the advertisement Notification.A select list was published on 23 April 2015. The appellants were not included in the select list. The reason for the omission is that none of them possessed an ITI qualification. Aggrieved by theirthe appellants instituted writ proceedings seeking consideration of their candidature for selection to the post ofon the basis of their position in the merit list. The appellants sought the quashing of the select list framed for the three districts without considering their position in merit and desired the reframing of the select list.The learned Single Judge by a judgment dated 1 August 2017 allowed the writ petitions on the ground that it was not open to the SSSB to exclude the appellants after the process of selection was set in motion and they had been subjected to a written test as well as an interview. In the view of the learned Single Judge, the rules could not have been changed after the selection process had been initiated, particularly since the list of disqualified candidates did not include them. The learned Single Judge noted that a candidate possessing a Diploma – electrical is entitled to appointment to the post of Junior Engineer which ranks higher than the post of Technician – III. Hence, in this line of reasoning, if the appellants were eligible to hold a higher post, their qualification was adequate for the post ofand a Diploma in Electrical Engineeringpresupposes the acquisition of the lower qualification ofMatric with ITI. In this view of the matter, the select list was quashed and the SSSB was directed to reframe it according to the merit secured by the appellants and other candidates. Directions were issued for making appointments on the basis of the select list as reframed.In the Letters Patent Appeals which were filed before the High Court, the Division Bench reversed the judgment of the learned Single Judge. The Division Bench held that the advertisement mandated an ITI in the relevant trade as a condition of eligibility and the SSSB had not granted any weightage to a higher qualification, in terms of Note 12. Moreover, the SSSB had categorically taken a decision on 31 January 2015 that it was only an ITI in the relevant trade with a Matric qualification that meets the prescribed qualifications. In arriving at this conclusion, the Division Bench has inter alia relied on a judgment of this Court in P M Latha v State of Kerala(2003) 3 SCC

Reasoning:
17. Under the above provisions as well as in the advertisement which was issued by the Board, every candidate must possess the prescribed academic/professional/technical qualification and must fulfil all other eligibility conditions. The prescribed qualifications for the post ofin the Power Development Department is a Matric with ITI in the relevant trade. The Board at its 116 th meeting took notice of the fact that in some districts, the interviews had been conducted for candidates with a diploma in Electrical Engineering while in other districts candidates with a diploma had not been considered to be eligible for the post ofMoreover, candidates with an ITI in diverse trades had also been interviewed for the post. The Board resolved at its meeting that only an ITI in the relevant trade namely the Electrical trade is the prescribed qualification specified in the advertisement.The learned Single Judge was persuaded to accept the submissions of the petitioners who had moved the Writ Petition primarily on two grounds. The first was that the Board had changed the rules in the midst of the selection process. In holding thus, the learned Single Judge was clearly in error. The Board did not bring about any change in the rules or the norms governing the selectionThere was no deviation from prescribed requirement for the post, of ITI with Matric. In fact the Board resolved to adhere to the qualification which was prescribed in the advertisement. An anomalous situation had arisen as a consequence of which, despite the prescribed qualifications, interviews of diploma holders had been conducted in some districts. This was plainly in breach of the conditions of the advertisement and was rectified by the Board. The second ground which weighed with the learned Single Judge 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 beto hold the lower qualification of an ITI. This line of reasoning appears to be based on the judgment of a two Judge bench of this Court in Jyoti KK (supra). Before adverting to the decision in Jyoti KK, it would be necessary to advert to some of the decisions of this Court on the subject.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 necessarilypresupposes the acquisition ofanother, 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 presuppose 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.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 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 whichpresupposes the acquisition ofa 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.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.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 pursuance of an enabling power which it may or may not exercise.Ms Wadia, learned counsel appearing on behalf of the appellants, however, urged that a peculiar situation arises in the present case because the appellants were permitted initially to appear for the written test and the interview. Their names were not contained in the disqualification list. Ms Wadia submitted that the appellants would have become age barred by now to pursue any future application. Recourse to our jurisdiction under Article 142 is warranted particularly since the appellants have spent nearly four years in pursuing their quest for the job of Technician III.They had even succeeded before the learned Single Judge. Hence, the rigors of the hardship, which the appellants confront, can be met by a suitable direction for age relaxation in their case. As we have noted in the earlier part of this judgment, the appellants applied in 2013 in pursuance of the advertisement that was issued by the SSSB. They were pursuing their remedies in the writ proceedings which ultimately culminated in the order of the learned Single Judge dated 1 August 2017. The Letters Patent Appeal was allowed on 12 October 2017.