Writ Petition No. 643 of 2015 (S/S) Versus. With Writ Petition No. 530 of 2015 (S/S) Sachin Chauhan and others. Versus

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1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 643 of 2015 (S/S) Vikas Kumar and others State of Uttarakhand & others With Writ Petition No. 530 of 2015 (S/S) Yashpal Singh Chauhan and others Mr. H.M. Raturi, Advocate for the respondent nos. 3 and 4. Writ Petition No. 551 of 2015 (S/S) Mohd Nizamuddin Jinnah and another Writ Petition No. 555 of 2015 (S/S) Uma Shankar Pandey and others None is present for the petitioners. Writ Petition No. 561 of 2015 (S/S) Sachin Chauhan and others Writ Petition No. 567 of 2015 (S/S) Danish Akhtar

2 2 Mr. G.D. Joshi, Advocate for the petitioner. Writ Petition No. 585 of 2015 (S/S) Kuldeep Chauhan and others Writ Petition No. 592 of 2015 (S/S) Gajendra Singh and others Writ Petition No. 605 of 2015 (S/S) Ganesh Singh and others Mr. Pooran Singh Rawat, Advocate for the petitioners. Writ Petition No. 621 of 2015 (S/S) Ankit Kumar Yadav None is present for the petitioner. Writ Petition No. 625 of 2015 (S/S) Gaurav Chandra and others None is present for the petitioners. Writ Petition No. 623 of 2015 (S/S) Nikhilesh Singh and others

3 3 None is present for the petitioners. Writ Petition No. 624 of 2015 (S/S) Devendra Kafaltiya and another None is present for the petitioners. Writ Petition No. 640 of 2015 (S/S) Prabha Kharola Mr. Deep Prakash Bhatt, Advocate for the petitioner. Writ Petition No. 644 of 2015 (S/S) Sanjeev Panwar and others Writ Petition No. 642 of 2015 (S/S) Ajeet Singh and others Writ Petition No. 646 of 2015 (S/S) Gaurav Bargali Mr. Bhuwan Bhatt, Advocate for the petitioner. Writ Petition No. 648 of 2015 (S/S) Praveen Singh Tomar

4 4 Mr. Karan Anand, Advocate for the petitioner. Writ Petition No. 649 of 2015 (S/S) Pravesh Prasad Mr. Karan Anand, Advocate for the petitioner. Writ Petition No. 653 of 2015 (S/S) Vaibhav Negi and another Ms. Sangeeta Bhrdwaj, Advocate for the petitioners. Writ Petition No. 681 of 2015 (S/S) Diwakar Bhatt Mr. D.K. Joshi, Advocate for the petitioner. Sahil Bisht Writ Petition No. 664 of 2015 (S/S) Mr. M.S. Bisht, Advocate for the petitioner. Writ Petition No. 703 of 2015 (S/S) Azad Singh and others

5 5 13 th July, 2015 Hon ble Servesh Kumar Gupta, J. All these petitions entail the identical controversy, hence are being adjudicated by the Court, herein, by the single judgment. Advertisement was issued on (Annexure No. 2) by the Uttarakhand Public Service Commission for conducting the examination to select the Junior Engineers in sundry wings of the Government like Civil, Electrical, Mechanical, Agricultural Engineering. The compulsory educational qualification of the candidate was that the applicant must be the diploma holder from any recognized institute in the concerning branch. Pursuant to such advertisement, several candidates, holding diploma in their respective branch applied and have to appear in the examination. The petitioners, who were the degree holders in their respective wings, also applied for the same. But their candidature was put to hold as they were found not possessing the requisite diploma in the branch. So, feeling annoyed by not accepting their applications for the examination, they knocked the door of the Court by ways of filing several petitions in WPSS Nos. 507, 530, 561 and 551 of The candidature of the petitioners was provisionally permitted to be considered by the order of co-ordinate Bench of this Court subject to the final adjudication, while rest of the petitioners in all the remaining petitions, though applied before the cut off date, but had come up before the Court later. However, since the common legal question is involved in all these petitions, so, they have been taken up together by the Court. This Court has rendered hearing to the learned counsel for the respective parties. Learned counsel for the petitioners has vehemently relied upon the following precedents:-

6 6 (1) Jyoti K.K. and others vs. Kerala Public Service Commission, (2010) 15 SCC 596. (2) Pankaj Kumar Dubey vs. Punjab National Bank and others, (2014) 6 ADJ 529 (3) Vinod Kumar vs. State of Uttarakhand & Anr. in WPSS No. 152 of (4) Rakesh Negi and others vs. State of Uttarakhand and others in WPSS No. 815 of (5) Mohd. Riazul Usman Gani and others vs. District and Sessions Judge, Nagpur and others, (2000) 2 SCC 606. On the other hand, learned counsel on behalf of the respondent nos. 3 & 4 in WPSS No.530 of 2015 has placed reliance upon the following judgments:- (1) P.M. Latha and Another vs. State of Kerala and others, JT 2003 (2) SC 423. (2) Yogesh Kumar and others vs. Government of NTC Delhi and others, JT 2003 (2) SC 453. (3) Ram Surat Yadav and others vs. State of U.P. and others, (2014) 1 UPLBEC 1. I have considered all the laws laid down in the above noted galaxy of judgments of various High Courts including that of the Hon ble Apex Court and feel that the basic premise or a common element running in all these judgments is the same. These judgments are not contrary to each other at such premise which is that the appointment on a particular post cannot be denied on the basis of higher qualification of a candidate provided such qualification presupposes the acquisition of lower qualification prescribed for the post. For example, if the minimum qualification for a particular post is VIII th standard, then the person having attained the matriculation, could not have been denied the appointment or where a post needs the minimum qualification intermediate, then a graduate cannot be denied appointment

7 7 on such post due to having acquired the greater qualification because achieving the matriculation qualification presupposes the attaining VIII th standard qualification or achieving the graduation qualification pre-supposes the attainment of intermediate qualification and so on. But in the present controversy, a degree education in Civil, Mechanical or Electrical Engineering, by no stretch of imagination, can be attributed to the effect that the candidate had attained the diploma qualification in that stream because for taking admission in the Bachelors Course does not envisage the attaining of the diploma qualification as a prerequisite. So, holding the diploma cannot be equated with holding of the degree in the engineering stream. The exception can be made even in such situation if the rules of the recruitment contemplate to that effect and it was the situation probably in the Jyoti K.K. and others case (supra) where Kerala State and Sub-Ordinate Service Rules, 1956 had such provision, but here, in Uttarakhand, the Rules have been enacted in 2003 and there is no such provision analogous to the Rules of Kerala. That apart, if a degree holder in a particular stream will always exclude the diploma holder in that stream then the scope to get employment for the diploma holders will always be very very little if not closed altogether because where a degree and diploma holders both are permitted to attend the same examination without any discrimination then in all probabilities, the degree holders will always take lead as against the diploma holders. So, the opportunity to get a government job will almost be closed to the diploma holders and in other words the persons who are not capable enough to take the qualification of a degree and cannot afford the monetary expenses to get their degree course, will always be deprived from the government job where the diploma is the minimum qualification to make the candidate eligible for the post.

8 L 8 Learned counsel for the petitioners has drawn the attention of this Court towards a judgment rendered by this very Court on in WPSS No. 152 of 2015, Vinod Kumar vs. State of Uttarakhand, where this Court permitted the petitioner holding the Bachelor degree in Pharmacy as against the minimum requisite qualification of diploma in Pharmacy. The premise in that matter cannot be equated here in the present controversy. This Court is not sure whether one can take admission in the B-Pharma Course directly without having passed the diploma in that stream so, it is difficult to say anything about that judgment. Even if the contention of learned counsel is accepted for a moment then also the Court declares the judgment per incuriam as against the law laid down in several cases indicated above by the Apex Court. All these petitions are devoid of any merit and, thus, dismissed. Interim order, if any, stands vacated. All the applications, still pending for disposal, stand disposed of in the above terms. (Servesh Kumar Gupta, J.) Ravi