Mukul Kumar Tyagi vs The State Of Uttar Pradesh on 16 December, 2019


Supreme Court of India

Mukul Kumar Tyagi vs The State Of Uttar Pradesh on 16 December, 2019

Author: Ashok Bhushan

Bench: Ashok Bhushan, M.R. Shah

                                                         REPORTABLE

                         IN THE SUPREME COURT OF INDIA
                          CIVIL APPELLATE JURISDICTION


                         CIVIL APPEAL NO. 9026 OF 2019


         MUKUL KUMAR TYAGI                       ...APPELLANT(S)

                                    VERSUS


         THE STATE OF UTTAR PRADESH AND ORS.     ...RESPONDENT(S)


                                     WITH


                         CIVIL APPEAL NO. 9027 OF 2019


         RAJIV KUMAR AND ORS.                    ...APPELLANT(S)

                                    VERSUS


         THE STATE OF UTTAR PRADESH AND ORS.     ...RESPONDENT(S)


                                      AND


                         CIVIL APPEAL NO. 9028 OF 2019


         RAVI PRAKASH AND ORS.                   ...APPELLANT(S)
Signature Not Verified

Digitally signed by
                                    VERSUS
MEENAKSHI KOHLI
Date: 2019.12.16
16:50:44 IST
Reason:




         THE STATE OF UTTAR PRADESH AND ORS.     ...RESPONDENT(S)



                                       1
                       J U D G M E N T


ASHOK BHUSHAN, J.

These three appeals have been filed questioning

the common judgment of High Court of Allahabad dated

09.05.2019 delivered by a Division Bench in Special

Appeal No.585 of 2018 – Deepak Sharma and 05 Ors. Vs.

State of U.P. with several other special appeals.

By the impugned judgment, the Division Bench of the

High Court has allowed the appeal setting aside the

judgment of a learned Single Judge dated 07.10.2017

delivered in batch of writ petitions led by Writ

Petition No. 41750 of 2015 – Prashant Kumar Jaiswal

and 12 Others Vs. State of U.P. and 10 Others and

dismissing all the writ petitions.

2. For deciding these appeals, it shall be

sufficient to notice the facts and questions of law

as arising in Civil Appeal No.9026 of 2019 – Mukul

Kumar Tyagi Vs. The State of Uttar Pradesh And Ors.,

which is being treated as lead appeal. The learned

Single Judge by judgment dated 07.10.2017 has decided

2
the batch of writ petitions led by Writ Petition

No.41750 of 2015 – Prashant Kumar Jaiswal and 12

Others Vs. State of U.P. and 10 Others, which

judgment was subject matter of challenge in the

Special Appeal No. 585 of 2018 and other appeals in

which impugned judgment has been delivered. It is,

thus, necessary to notice the relevant facts giving

rise to Writ Petition No.47510 of 2015 and sequence

of the events after judgment of the learned Single

Judge dated 07.10.2017.

3. The subject matter of these appeals is

recruitment to the post of Technician Grade-II in

Uttar Pradesh Power Corporation Limited conducted by

Uttar Pradesh Electricity Service Commission, Uttar

Pradesh Power Corporation Limited, Lucknow. Under

Uttar Pradesh Electricity Supply Act, 1948, the

erstwhile Uttar Pradesh State Electricity Board had

framed regulations constituting Electricity Service

Commission, which was entrusted to conduct

examination for the various posts to be filled up by

competitive examination. After enactment of Uttar

3
Pradesh Electricity Reforms Act, 1999, the Uttar

Pradesh Electricity State Board ceased to exist and

was replaced by the Corporation. The Corporation

adopted the Regulations framed by Uttar Pradesh State

Electricity Board including Uttar Pradesh Electricity

Board of Operational Employees Category Service

Regulations, 1995 (hereinafter referred to as

“Regulations, 1995”), which provided for recruitment

to the post of Technician Grade-II. The

qualifications provided for in Regulations, 1995 were

as follows:-

“Passing High School or its equivalent
with Science and Mathematics as subject
from UP Secondary Education Council and
All India/State Trade Certificate in
Electrical Trade”

4. The Corporation by O.M. dated 24.12.2010 provided

that apart from qualification mentioned in

Regulations, 1995 the persons must have three months

certificate course in regard to knowledge of Windows

issued by Computer Institutions recognised by State

Government. On 29.01.2011, the Uttar Pradesh Power

Corporation Ltd. issued an office memo by which with

4
regard to computer qualification as prescribed

earlier by Corporation, following was substituted:-

“Certificate of 80 Hours Course on
Computer Concept (CCC) issued by DOEACC”

5. The Managing Director of the Corporation by

Office Memo dated 05.07.2013 with regard to direct

recruitment at the post of Technician Grade-II in

place of the computer qualification of “Certificate

of 80 Hours Course on Computer Concept (CCC) issued

by DOEACC” substituted “Course on Computer Concept

(CCC) Certificate or its equivalent computer

qualification certificate” and sought for the

approval of Board of Directors of the Corporation.

6. After Office Memo dated 29.01.2011 issued by

Corporation, the Electricity Service Commission

(hereinafter referred to as “Commission”) had

advertised 2974 posts for Technician Grade-II in the

year 2011 where Course on Computer Concept

Certificate by DOEACC was one of the mandatory

qualifications. The 2011 selection was completed with

requirement of CCC certificate by DOEACC.

5

7. A fresh advertisement No.4/V.SE.Aa/2014 dated

06.09.2014 was issued by Electricity Service

Commission inviting applications for 2211 vacancies.

Paragraph 2 of the advertisement provides for

compulsory qualifications to the following effect:-

“2. Compulsory qualifications:

(1) High School or its equivalent
exam. pass from Board of Higher
Secondary Education, U.P. with
Science & Math subjects and All
India/State Vocational Certificate
in Electrician Trade &

(2) Course on Computer Concept (CCC)
Certificate or its equivalent
computer qualification
certificate.

Note: Certificate of Electrician
Trade only would be admissible.

Certificate received through
Distant Education and
certificate obtained on the
basis of experience would not be
admissible.”

8. Written examination was conducted on 08.11.2014

and candidates were called for interview in December,

2014/January, 2015. On 24.04.2015, a second

advertisement was issued by Commission seeking to

6
fill up 884 posts of Technician Grade II. On

14.07.2015, the Commission published a select list of

2211 candidates, in response to the first

advertisement. On 31.07.2015, Writ Petition No.41750

of 2015 – Prashant Kumar Jaiswal and 12 Others Vs.

State of U.P. and 10 Others was filed in which on

31.07.2015, learned Single Judge passed following

order:-

“Heard Sri Ashok Khare, learned Senior
Advocate assisted by Sri Sunil Kumar
Srivastava, learned counsel appearing for
the petitioners as well as learned
Standing Counsel appearing for the
respondent No.1 and Shri Ayank Mishra,
learned counsel appearing for the
respondents no. 2, 3 and 4.

Issue notice to the respondents no. 5
to 11 through the Secretary, Electricity
Service Commission.

Learned counsel for the respondents
pray for and is granted time till 6 th
August, 2015 to file counter affidavit
particularly with reference to the
assertions made in paragraphs 24 to 28 of
the writ petition.

On the request of the learned counsel
for the respondents, put up as a fresh
case on 6th August, 2015 before the
appropriate Court.

Matter need not be treated as tied up
or part heard. Learned counsel for the
respondent submits that no final decision

7
will be taken in pursuance to the impugned
select list.

Order Date:- 31.7.2015”

9. The petitioners of Writ Petition No. 41750 of

2015 were not included in the select list published

on 14.07.2015 by the Commission. Writ petitioners

sought quashing of the select list dated 14.07.2015

and further sought revision of the select list after

excluding therefrom the candidates, who have obtained

computer eligibility certificate on date subsequent

to 30.09.2014 and other candidates, who do not

possess computer concept certificate as awarded by

DOEACC society [renamed as National Institute of

Electronics & Information Technology (NIELIT)]. In

the writ petition, the petitioners had arrayed

various selected candidates in representative

capacity. The case of the petitioners was that CCC

Certificate is granted only by DOEACC/NIELIT and none

of the certificates issued by private or unrecognised

institutions can be treated as equivalent thereto and

thus, candidates, who have filed certificates from

8
private and unrecognised institutions cannot be held

to possess qualification as prescribed by the

advertisement.

10. On 17.02.2016, an order was passed by the learned

Single Judge that all appointments to be made by the

respondent would abide by the final decision of the

writ petition. Learned Single Judge by its order

dated 12.08.2016 noticing relevant aspects of the

case called upon the Commission to file further

affidavit. Commission filed an affidavit and

referred to decision dated 27.01.2015 where

respondents had treated certificate granted upon the

culmination of a course spread over three months or

80 Hours as equivalent to CCC Certificate. Learned

Single Judge after hearing the writ petitioners, the

Electricity Commission and the Uttar Pradesh Power

Corporation allowed the writ petitions. Learned

Single Judge quashed 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.

9
Learned Single Judge directed the respondents to

redraw the select list restricting it to the

candidates, who hold a recognised CCC certificate or

a qualification recognised in law as being equivalent

thereto. The Commission was directed to reframe the

merit list and publish the results thereof afresh.

The judgment of the learned Single Judge dated

07.10.2017 was accepted by the Commission. The merit

list was revised in accordance with the judgment of

the High Court dated 07.10.2017. The revised merit

list was published on 21.06.2018. Several

candidates, who did not possess CCC Certificate or

equivalent were deleted from the select list. One of

the candidates, whose name was deleted, filed a Writ

Petition No. 13216 of 2018 -Rohit Vs. State of U.P.

and 2 others, challenging the order dated 13.05.2018,

by which his name was deleted. The writ petition was

dismissed by a learned Single Judge on 30.05.2018

upholding the order of deletion of his name. A

Special Appeal No. 582 of 2018 was filed by Rohit,

the writ petitioner, which too was dismissed by the

Division Bench on 22.06.2018 reaffirming the view of

10
learned Single Judge that writ petitioner (Rohit) did

not possess the certificate of Computer Course or its

equivalent course. The certificate

issued in October, 2015 by NIELIT having obtained

after the last date of the application (i.e.

30.09.2014) was held not to make the candidate

eligible. Consequent to the publication of the

revised list on 21.06.2018 about 903 candidates went

out of the select list. Other candidates, who had

CCC certificate or equivalent thereto were included

in the select list. The appellants in Civil Appeal

No. 9026 of 2019 – Mukul Kumar Tyagi and Civil Appeal

No. 9027 of 2019 – Rajiv Kumar and others are the

appellants, who came in the select list after the

revision of the select list and were issued

appointment orders thereafter and have joined the

post and are working as on date.

11. The Division Bench in Special Appeal No. 585 of

2018 and other connected appeals issued a direction

to the respondent on 24.08.2018 to make equivalence

of the qualification of ITI/ any Vocational

11
qualification possessed by the appellants and persons

similarly situated to the appellants. Questioning

the judgment and direction of the Division Bench

dated 24.08.2018, Special Leave to Appeal (C)

No.24585 of 2018 was filed in this Court, which came

to be disposed of on 01.10.2018. The direction

issued by the Division Bench to the Commission was

made inoperative in the interregnum. This Court

requested the High Court to dispose of the Special

Appeals as expeditiously as possible.

12. The special appeals came to be finally decided by

the Division Bench vide its impugned judgment dated

09.05.2019. The special appeals have been allowed,

judgment of learned Single Judge dated 07.10.2017 has

been set aside and all the writ petitions were

dismissed.

13. Aggrieved by the judgment of the Division Bench

dated 09.05.2019, these appeals have been filed.

12

14. The appellants in Civil Appeal No.9026 of 2019,

Mukul Kumar Tyagi Vs. State of Uttar Pradesh and

Others, and Civil Appeal No. 9027 of 2019, Rajiv

Kumar and Others Vs. State of Uttar Pradesh and

Others are candidates whose names were included in

the revised select list dated 21.06.2018 drawn by the

Commission consequent to the judgment of learned

Single Judge dated 07.10.2017. The appellants of both

the above appeals were also appointed on post of

Technician Grade-II after they being included in the

revised select list dated 21.06.2018.

15. In Civil Appeal No.9026 of 2019, first respondent

is State of U.P., 2nd respondent is Uttar Pradesh

Power Corporation Ltd., 3rd respondent is Managing

Director, Uttar Pradesh Power Corporation Ltd. and 4 th

respondent is Electricity Service Commission, Uttar

Pradesh Power Corporation Ltd. Respondent Nos.5 to 11

were respondent Nos. 5 to 11 in Special Appeal No.585

of 2018. Respondent Nos. 12 to 23 are proforma

respondents, who were respondents in Special Appeal

No.585 of 2018 along with Mukul Kumar Tyagi,

13
appellant. The respondent Nos. 24 to 29 were the

appellants in Special Appeal No.585 of 2018.

16. Civil Appeal No. 9028 of 2019, Ravi Prakash and

Others Vs. State of Uttar Pradesh and Others, is

appeal by those candidates who though appeared in the

written examination and in the interview but were not

included either in the original select list or in the

revised select list. All the appellants are

candidates who have CCC certificate from DOEACC

despite that they could not find place in the

original merit list or the revised merit list.

17. We have heard Shri P.S. Patwalia, learned senior

counsel, Ms. Anjana Prakash, learned senior counsel

and Ms. Mahalakshmi Pavani, learned senior counsel

for the appellants. Shri Dushyant Dave, learned

senior counsel, Shri Niraj Kishan Kaul, learned

senior counsel and Shri Debashish Bharuka have

appeared for private respondents. Shri Parag

Tripathi, learned senior counsel has appeared for

UPPCL and Electricity Service Commission.

14

18. Shri P.S. Patwalia, learned senior counsel for

the appellant submits that the select list dated

14.07.2015 drawn by the Commission contained the

names of the candidates who did not fulfil the

eligibility as per the advertisement dated

14.09.2014. Several candidates who were included in

the select list dated 14.07.2015 had no CCC

certificate from DOEACC or NIELIT. The certificates

which were relied by the large number of candidates

were certificates obtained from private institutes

which were unrecognised and who were not competent to

issue any certificate nor such certificate could have

been equivalent to CCC. Learned Single Judge after

having found that the Commission included in the

select list the candidates whose certificates were

not equivalent to CCC and no exercise having been

conducted by the Commission to verify the equivalence

of certificates as claimed by large number of

candidates directed the Commission by judgment dated

07.10.2017 to redraw the select list after verifying

15
the equivalence of certificates of those candidates

who had not filed CCC certificate.

19. Shri Patwalia submits that self-certification by

candidates that their computer qualifications are

equivalent to CCC was wholly unauthorised and

illegal. The Commission in the selection process

relied on self-certification by the candidates for

including them in the select list which was

unjustified and violative of Article 16 of the

Constitution of India.

20. Shri Patwalia submits that qualifications which

are prescribed by the employer for recruitment on the

post of Technician Grade-II had to be strictly

adhered to in the selection process. Shri Patwalia

submits that CCC certificate was issued by DOEACC

which subsequently became NIELIT which is the only

recognised authority to issue CCC certificate. No

other authority or body has been found to issue CCC

Certificate. For declaring a computer certificate as

equivalent to CCC, the recruiting authority/employer

has to compare the course contents of the CCC

16
Certificate and the course contents of the

certificate which is claimed to be equivalent to CCC.

21. Shri Patwalia submits that in the Selection in

question, there were no guidelines or criteria for

declaring equivalence of the computer certificate to

the CCC. In the entire selection process, no exercise

was undertaken by the Commission to verify the

certificates of the candidates who claimed

certificate from private organizations, registered

societies, which were not authorised to issue any

computer qualification certificate.

22. It is submitted that all the appellants are

candidates, who have passed CCC certificate from

DOEACC and were entitled to be included in the merit

list but for the inclusion of unqualified candidates

in the original select list dated 14.07.2015, they

could not find place in the merit list. The judgment

of learned Single Judge dated 07.10.2017 has been

accepted by the Corporation as well as the Commission

17
and in compliance of the judgment, the revised merit

list was drawn.

23. It is submitted that in revising the select list,

the Order dated 03.05.2016 issued by the State of

U.P. which provided a mode to be adopted for

equivalence of computer qualification was adhered to

and as per the Government Order dated 03.05.2016

equivalence of CCC certificate was declared and those

candidates who fulfil the equivalence as per

Government Order dated 03.05.2016 were included in

the select list.

24. Shri Patwalia submits that the Division Bench has

erroneously accepted the self-certification by the

candidates as equivalent to CCC Certificate, which is

unsustainable.

25. Shri Patwalia further submits that the ITI

certificate and other vocational certificates which

Division Bench held to be equivalent to CCC

certificate is not sustainable. He submits that

18
certificate of ITI and other vocational certificates

do not conform to the course contents of CCC

certificate and can never be held to be equivalent to

CCC certificate. Shri Patwalia further submits that

after the judgment of learned Single Judge dated

07.10.2017, the revised Select list was drawn which

revised select list came to be challenged in the High

Court separately by filing a writ petition, which was

dismissed upholding the revision of select list. A

special appeal filed against the judgment of learned

Single Judge being Special Appeal No.582 of 2018 was

also dismissed upholding the deletion of those

candidates who did not have computer certificates

equivalent to CCC.

26. It is submitted that a Division Bench of the High

Court having upheld the exercise carried out by

Commission consequent to the judgment dated

07.10.2017, the Division Bench in the impugned

judgment could not have taken a contrary view. It is

submitted that Division Bench judgment of the High

Court in Special Appeal No.585 of 2018 has not even

been referred to in the impugned judgment.

19

27. Shri Patwalia submits that the Division Bench

committed error in setting aside the judgment of the

learned single Judge and consequence of which is to

restore the Select list containing the names of the

candidates who do not fulfil the qualification for

the post. It is submitted that Division Bench could

not have diluted the qualifications which was

prescribed in the advertisement more so when there

was no challenge to the qualification by anyone.

Shri Patwalia submitted that CCC certificate is given

only by DOEACC/NIELIT and the CCC certificate which

was required in the advertisement was the certificate

issued by DOEACC/NIELIT.

28. Smt. Anjana Prakash, learned senior counsel

appearing in Civil Appeal No. 9027 of 2019 adopted

the submissions of Shri Patwalia and submits that all

the appellants were included in the revised select

list who have been appointed and are working.

29. Smt. Mahalakshmi Pavani, appearing in Civil

Appeal No. 9028 of 2019, Ravi Prakash and Others Vs.

20
State of Uttar Pradesh and Others submits that all

the appellants in the appeal have CCC certificates

from DOEACC but they could not be included in the

original select list or revised select list. It is

submitted that there are 161 vacancies on the post of

Technician Grade-II caused due to resignation and

non-joining, on which vacancies the appellants, who

have CCC certificates and participated in written

test and interview can be appointed. She prayed that

appropriate direction be issued to appoint the

appellants on the above vacant posts.

30. Shri Dushyant Dave, learned senior counsel

appearing for the respondents refuting the

submissions of learned counsel for the appellants

supports the judgment of the Division Bench. Shri

Dave submits that in the writ petition filed before

the High Court selected candidates having not been

made party, the learned Single Judge could not have

quashed the select list. He submits that the judgment

of learned Single Judge has been passed in violation

of principle of natural justice since it was passed

21
without hearing the selected candidates, who had

acquired right consequent to the selection on the

post. It is further submitted that writ petitioners

have challenged the select list after having

participated in the selection which challenge ought

to have been repelled by the High Court. The

candidates who have taken chance of being selected

cannot turn around and challenge the selection having

been declared unsuccessful. He further submitted that

writ petitioners have never challenged the

advertisement or qualifications in the advertisement.

31. Shri Dave submits that in view of the Office

Memorandum dated 05.07.2013 issued by Managing

Director of the Corporation which was ex post facto

approved by Board of Directors on 23.11.2015, the

requirement of having CCC certificate from

DOEACC/NIELIT was done away with. He submits that

there being no requirement of having CCC certificate

from DOEACC/NIELIT, the certificates which were

claimed by the respondents were certificates which

22
fulfil the qualification as prescribed in the

advertisement.

32. It is submitted that it is for the employer or

recruiting agency to declare equivalence of

certificate and the Commission having been satisfied

with the equivalent certificate claimed by the

respondents, learned Single Judge ought not to have

interfered with declaration of equivalence by the

Commission. It is submitted that the respondents in

pursuance of select list dated 14.07.2015 were given

appointment in August, 2015 and had joined the post

and worked for about three years till their

appointment was cancelled in May/June 2018.

33. It is further submitted that most of the

respondents have also obtained the CCC certificate

before the date of interview and most of the

candidates who have been deleted from the revised

select list now are in possession of CCC

certificates. He submits that in the present

selection, there are no allegation of mala fide and

23
arbitrariness on the part of Commission. He further

submits that Regulations, 1995 which is statutory

regulation for recruitment on the post of Technician

Grade-II does not require CCC certificate. Shri Dave

submits that self-certification is a mode which is

prescribed in the advertisement itself. The

advertisement has now given a go-bye to CCC

certificate by DOEACC, there was no requirement of

CCC certificate by DOEACC in the recruitment in

question. He submits that ultimate conclusion of

Division Bench is correct, which judgment needs no

interference by this Court.

34. Shri Niraj Kishan Kaul in addition to submissions

which have been made by Shri Dushyant Dave contends

that present is not a case where learned Single Judge

ought to have exercised jurisdiction under Article

226 to quash the select list. All the candidates, who

were selected in the select list dated 14.07.2015

have cleared the written test and the interview and

had obtained higher marks than the appellants. The

candidates who were included in the initial select

24
list had obtained different ITI and vocational

certificates, which fulfil the necessary knowledge

and requirement of computer qualification.

35. It is submitted that CCC certificate is a basic

computer course and that the Commission having

already found the candidates fulfilling the

qualification, learned Single Judge ought not to have

substituted his own view. The CCC certificate is a

computer course which is a course designed for common

man. The respondents having worked for three years

are entitled to be allowed to continue on their post.

He further reiterates that several of the respondents

had obtained CCC certificate prior to interview.

36. Shri Bharuka also adopted the submissions of Shri

Dave and Shri Niraj Kishan Kaul.

37. Shri Parag Tripathi, learned senior counsel

appearing for Corporation and the Commission has

referred to writ petition of Rohit Kumar which was

filed challenging the action of the Commission

25
declaring several candidates disqualified in

pursuance of judgment dated 07.10.2017 of learned

Single Judge, which writ petition was dismissed by

learned Single Judge. The Division Bench also

affirmed the judgment of learned Single Judge in

Rohit Kumar’s case.

38. Shri Parag Tripathi had very candidly submitted

that the Commission or the Corporation did not carry

out any exercise to find out as to whether

certificates submitted by the candidates were

equivalent to CCC certificate prior to declaring the

select list on 14.07.2015. Shri Tripathi has referred

to the counter affidavit filed by the Electricity

Secretary/Member, Electricity Service Commission in

Civil Appeal No. 9026 of 2019, Mukul Kumar Tyagi Vs.

State of Uttar Pradesh and others. Shri Tripathi

submits that in carrying out the equivalence of CCC

certificate the Commission has adopted the guidelines

given under the Government order dated 03.05.2016. He

submits that by subsequent Government Order dated

23.09.2016, Government of Uttar Pradesh extended the

scope of Government Order dated 03.05.2016 to all the

26
posts of the Government Departments of the State. He

submits that in pursuance of the Order of learned

Single Judge dated 07.10.2017, Corporation

constituted a committee to decide criteria on the

basis of which the equivalence of CCC could be

decided. The Committee, comprised of eight Officers,

carried out the exercise consequent to which the

revised select list was issued. After the judgment of

learned Single Judge dated 07.10.2017, the

candidature of several candidates who were included

in the select list dated 14.07.2015 were cancelled

holding them not eligible, which action of the

Commission has received approval of High Court also.

39. We have considered the submissions of learned

senior counsel for the parties and perused the

record.

40. From the submissions of learned counsel for the

parties and the pleadings on record, following points

arise for consideration: –

27

(i) What is “Course on Computer Concept” (CCC)

Certificate and the advertisement dated

06.09.2014 envisaged which CCC certificate?

(ii) Whether the advertisement dated 06.09.2014

envisaged self-certification by the

candidates of “equivalence” to CCC

certificate of their computer qualification

and the self-certification by the

candidates of their computer qualification

was sufficient to treat them having

possessed the required qualification?

(iii) Whether the Corporation or Commission had

framed or adopted any criteria or

guidelines to determine “equivalence” to

CCC certificate?

(iv) Whether any exercise was conducted by the

Commission in the process of recruitment to

determine “equivalence” of computer

qualifications of those, who did not

possess CCC certificate?

(v) Whether the Division Bench of the High

Court has rightly set aside the direction

of learned Single Judge to exclude those,

who do not have CCC certificate?

28

(vi) Whether the learned Single Judge ought not

to have quashed the select list when the

selected candidates were not impleaded in

the writ petitions?

POINT NO.1

41. The Course on Computer Concept (CCC) certificate

had been issued by DOEACC Society and thereafter by

National Institute of Electronics and Information

Technology (NIELIT), an Autonomous Scientific Society

under the administrative control of Ministry of

Electronics & Information Technology, Government of

India, set up to carry out Human Resource Development

and related activities in the area of Information,

Electronics & Communications Technology had taken

various steps. The Department of Electronics

Accreditation Computer Courses (DOEACC) Society was

formed in the year 1994 and registered under the

Society Registration Act, 1860. The management and

administration of the Society is overseen by

Governing Council, under the chairmanship of the

Minister of State, Communications & Information

29
Technology, Government of India. Members of the

Council consist of eminent academia from IITs,

Universities, etc. and professionals from the

industry. Under the DOEACC Scheme, computer training

institutes/organizations in the non-formal sector,

subject to meeting well-defined norms and criteria,

were granted accreditation for conducting specified

Levels of courses. The different courses were

accredited under the DOEACC Scheme. Computer Course

Certificate is one of such certificates, which was

being granted under the aegis of the DOEACC Society.

The learned Single Judge in his judgment has

extracted course contents of CCC certificate, which

is on pages 143 to 145 of paper book. The duration

of course is 80 Hours (Theory: 25 Hrs. + Practical:

50 Hrs. + Tutorial: 05 Hrs.), which can also be

offered as 10 days full time intensive course.

Course contents envisages different chapters on the

computer knowledge and contents and detailed

syllabus. The copy of the syllabus of the CCC course

has also been brought on the record as Annexure P-14

running into 05 pages detailing – Introduction to

30
computer; Introduction to Gui Based Operating System;

Elements of Word Processing; Spread Sheet; Computer

Communication and Internet, WWW and Web Browser,

Communication and Collaboration Making Small

Presentations.

42. One of the certificates issued by DOEACC Society

dated 10.05.2012 granted in favour of appellant –

Mukul Tyagi has been brought on record, which

mentions that “the candidate appearing has passed the

examination of DOEACC Course on Computer Concepts.”

The certificate further mentioned that “candidate is

sponsored by Anubhav Infotech Limited, [FR UPTEC],

MEERUT”. Thus, CCC certificate which was granted by

DOEACC Society, which society is now taken over by

National Institute of Electronics and Information

Technology (NIELIT) functioning under Department of

Information and Technology and Ministry of

Communication and Technology, Government of India.

CCC certificate, thus, is a well-known certificate,

which is issued under the aegis of the Government of

India, which certificates have been made part of

31
essential qualifications for different posts

throughout the country. Neither there is any case on

the record nor any material to indicate that CCC

certificate is also being granted by any other body

or authority. There is no certificate brought on

record by any of the applicants or the Corporation or

Commission indicating that CCC certificate is granted

by any other body or authority except DOEACC/NIELIT.

The learned Single Judge has returned a finding that

CCC certificate is granted only by NIELIT formerly

known as DOEACC Society. The following findings have

been recorded by learned Single Judge in this

respect: –

“Although Sri Mishra contended that a CCC
certificate can be granted by any
organisation, this was not backed by any
material or evidence. In fact, and to the
contrary it appears on the basis of the
material placed before this Court that a
CCC certificate is granted only by NIELIT
or centres recognised or accredited to
it.”

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

32
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

33
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

34
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 Commission.

45. The candidates who had submitted application in

response to advertisement dated 14.09.2014 had also

35
understood the advertisement to the effect that

equivalent computer qualification referred to in the

advertisement is the equivalent computer

qualification to CCC certificate of NIELIT. One of

the applicants, who had filed self-declaration of

equivalence of his qualification has made following

statement ‘as quoted by learned single Judge in his

judgment’: –

“…I, Abhijit Kumar son of Shri
Birender Pandey do hereby declare that
Computer Certificate produced by me at the
time of interview for the post of
Advertisement No.4/Visea/2014 Technician
Grade-2 (Electricity) is equivalent to the
Course ‘CCC’ conducted includes in it.

In case Computer Certificate produced
by me is not found equivalent to ‘CCC’,
then whatever decision would be taken by
the Power Service Commission about
candidature, the same would be acceptable
to me. Even if my candidature is
cancelled/rejected, then I would not make
any kind of claim…”

46. Learned Single Judge vide his judgment dated

07.10.2017 had quashed the select list only to the

extent it includes candidates who did not hold CCC

certificate conferred or recognised by NIELIT. The

36
operative portion of the judgment of learned single

Judge is as follows: –

“…..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.

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 thereto. The
Commission shall as a result of the above,
reframe the merit list and publish the
results thereof afresh. All consequences
to follow.”

47. 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

37
candidates who do not possess CCC certificate by

DOEACC/NIELIT.

48. It is useful to refer to letter written by Uttar

Pradesh Power Corporation Limited dated 29.01.2018 to

Secretary, Electricity Service Commission, which is

to the following effect: –

“Secretary
Electricity Service Commission
U.P. Power Corporation Ltd.
S.L.D.C. Premises, Near Minister House,
Vibhuti Khand, Gomti Nagar, Lucknow

Subject:- In the context of ensuring
compliance of decision taken
in the 136(08)th meeting of
Board of Directors held on
17.01.2018 for determination
of the equivalence of the
‘CCC’ certificates issued
by NIELIT/D.O.E.A.C.C.

Sir,

Please accept the reference to the
comments No. Nil dated 30.12.2017 by which
the recommendation dated 28.12.2017 given
by the committee formed by Office
Memorandum No.354 and 355
regulations/Pakali 2017-7regulation/17
dated 19.12.2017 for determination of the
equivalence of the ‘CCC’ certificates
issued by NIELIT/DOEACC has been sent for
the approval of Board of Directors.

        Matter was presented to board               of
     directors in the 136(08)th meeting             of

                              38
     Board of Directors held        on 17.01.2018, in
     which approval was given       for determination
     of   the   equivalence          of   the   ‘CCC’
     certificate issued by          NIELIT/DOEACC in
     following terms: -

        Director(P&A)     informed     that    in
     compliance    of    the    judgment    dated
     07.10.2017   passed     in   writ   petition

No.41750 of 2015 a committee was formed
under the chairmanship of Director(P&A)
for determination of the equivalence of
the ‘CCC’ certificate/course issued by
other institutions and their validity in
which the approval was given to act as per
the provisions of G.O. No.2/2016/3/1/2015-
ka-2 dated 03.05.2016.

Board of Directors while approving the
recommendation given by the above
committee directed for inclusion of all
latest G.O.’s issued by the U.P.
Government after G.O.No. 2/2016/3/1/2015-
ka-2 dated 03.05.2016 for determination of
the equivalence of the ‘CCC’ certificate.

End: Attaching the photocopy of the
above decision of the Board of Directors I
was instructed to say that in the said
matter ensure compliance as per above.

Your’s faithfully

(Rakesh Bhatt)
Deputy Secretary
(Regulation and Ka.Vi.Ni.)”

49. The candidates who had CCC certificate from

NIELIT/DOEACC and who were included in the merit list

39
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
consideration….”

50. 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 DOEACC.

40

51. 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/DOEACC.

POINT NO.2

52. The mandatory qualification as per the

advertisement is CCC certificate or equivalent

computer qualification. Some of the candidates who

did not have CCC certificate and relied on computer

qualification issued by private organizations and

society had given a self-declaration that their

computer qualification is equivalent to CCC

Certificate. One of the self-declarations we have

extracted above.

53. We need to find out as to whether the

advertisement envisaged self-certification by the

candidates that their computer qualification is

equivalent to CCC. Clause (7) of the advertisement

relates with submission of testimonials in support of

41
qualification and other certificates. Clause (7)

refers to self-attested and signed photocopies of

qualification certificates/ marksheets/ caste

certificates etc. For ready reference, clause (7) of

the advertisement is as follows: –

“7. Submission of qualification and other
certificates: –

Candidates would be allowed to appear
in written test provisionally on the basis
of information made available by candidate
in online application. Candidates would
not earn right to selection merely on
appearing in written test. Candidate would
deposit self-attested & signed photocopies
of qualification certificates/mark sheets/
caste certificate/ domicile certificate/
certificate concerning with computer/
certificate of dependant of Freedom
Fighter and certificate of Ex-servicemen
(as defined in Government orders and who
have rendered minimum 05 years’ service in
Army) (leaving those which are irrelevant)
concerning with qualifications for
advertised post at the time of interview
with printout of online application.

Certificates concerning with
qualifications of candidates invited for
interview who are declared successful in
written test, would be scrutinized at
different levels. In case of
giving/receiving any kind of wrong
information, right to cancel candidature
at any stage and depriving of the
selection process without any notice is
reserved.

Note:

42

(1) Certificate of Electrician Trade only
would be admissible.

(2) Technical Certificate equivalent to it
obtained thorough Distant Education
Systems or on the basis of experience or
desired trade would not be admissible.”

54. It is further relevant to notice that the above

clause in the advertisement only refers to self-

attested and signed photocopies of qualification

certificates, marksheets, caste certificates, etc.

Self-attestation is a well-known concept according to

which a candidate making any application instead of

obtaining attestation by Gazetted Officer of the

certificates may self-attest the certificates and

submit them, which is subject to subsequent scrutiny

and verification. When application is submitted

online, self-attestation by candidate is sufficient

to consider the candidature of the candidate for

purposes of calling him to appear in the written

test. Last part of clause (7) further contemplates

that “all the certificates concerning with

qualification of candidates declared successful in

written test, could be scrutinised.” The Clause (7)

43
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 CCC.

55. 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

44
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 condition.

56. 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-

45

certification for computer literacy
equivalent to CCC….”

57. 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 advertisement.

58. 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 qualification.

46
POINT NOS.3, 4 AND 5 TOGETHER

59. The Corporation or the Commission had not brought

on record either before the High Court or before this

Court any guidelines or criteria to determine

equivalence to CCC certificate. High Court has

noticed the submission of learned counsel for the

Commission that on 22.01.2015, a decision was taken

by the respondent to treat certificates granted upon

culmination of a course spread over three months or

80 Hours as equivalent to CCC certificate. The above

submission of learned counsel for the Commission

itself indicates that no criteria or guideline was

framed either by Commission or Corporation before

proceeding with the recruitment. 27.01.2015 is the

date by which both written examination and interviews

were over. The scrutiny of eligibility of candidates

was required to be made at-least before the

candidates appeared for interview. In the call

letters, which were issued to the candidates for

interview, the candidates were required to bring

several documents and certificates. One of the

47
requirements as mentioned in the call letter for

interview in clause 5 is as follows:-

“’CCC’ computer course qualification
certificate or any other equivalent
certificate.”

60. 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

48
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 equivalence.

61. We have already held that equivalence of

qualification cannot be left to candidates by their

self-declaration. There has to be norms and

guidelines, which may sub serve the purpose and

object of making equivalent qualification as an

eligibility for the post. The word “equivalent” has

been defined in “Advanced Law Lexicon by P. Ramanatha

Aiyar, 3rd Edition” in following manner:-

“Equivalent. Equal in worth or value.

49
Equal in value, measure, force, effect
etc.

Equivalent, Equal. Equal expresses the
fact that two things agree in anything
which is capable of degree, e.g., in
quantity, quality, value, bulk, number,
proportion, rate, rank and the like.

Equivalent is equal in such properties as
affect ourselves or the use which we make
of things, such as value, force, power,
effect impact and the like (as)
“Equivalent of money.”

62. 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

50
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 equivalent.”

63. This Court in Chairman and Managing Director,

Food Corporation of India and Others Vs. Jagdish

51
Balaram Bahira and Others, (2017) 8 SCC 670, in

paragraph 570 laid down following:-

“56. …………………Where the State embarks upon
public employment, it is under the mandate
of Articles 14 and 16 to follow the
principle of equal opportunity.
Affirmative action in our Constitution is
part of the quest for substantive
equality. Available resources and the
opportunities provided in the form of
public employment are in contemporary
times short of demands and needs. Hence,
the procedure for selection, and the
prescription of eligibility criteria has a
significant public element in enabling the
State to make a choice amongst competing
claims. The selection of ineligible
persons is a manifestation of a systemic
failure and has a deleterious effect on
good governance. Firstly, selection of a
person who is not eligible allows someone
who is ineligible to gain access to scarce
public resources. Secondly, the rights of
eligible persons are violated since a
person who is not eligible for the post is
selected. Thirdly, an illegality is
perpetrated by bestowing benefits upon an
imposter undeservingly…………………”

64. In the process of recruitment, the Commission

included the candidates in the select list, who

claimed equivalent qualification to CCC certificate.

Without any scrutiny, the inclusion of persons with

whom there was no satisfaction by the Commission that

their qualification was equivalent to CCC is nothing

52
but permitting unqualified persons to be included in

the select list. We, thus, conclude that neither

there was any criteria or guidelines framed by

employer or the recruitment agency to determine the

equivalence nor any exercise was conducted by the

Commission during the process of recruitment and

without there being scrutiny of the equivalent

qualification claimed by several candidates, their

names were included on the basis of self-

certification. The Division Bench of the High Court

in its impugned judgment has not overturned the

findings of the learned Single Judge that neither

there was a criteria nor any scrutiny was undertaken

by the Commission in the recruitment process. The

Division Bench relied on self-certification by the

candidates regarding equivalence of their

qualification. The Division Bench approved the

action of the employer and the Commission to rely on

self-certification and has held:-

“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 CCC.”

53

65. 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

54
redraw the select list restricting it to candidates

who hold a recognised CCC certificate or a

qualification recognised in law as being equivalent

thereto.

66. 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

55
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
Government.

b) If any candidate has obtained Diploma
or Degree in Computer Science then he
shall also be eligible to be recruited
as Junior Assistant/Stenographer.”

Thus, 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 interview.

67. 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

56
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 list.

57

68. 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 sustained.

POINT NO.6

69. Shri Dushyant Dave, learned senior counsel

appearing for the respondent has submitted that

candidates in the select list being not before the

learned Single Judge, they had no opportunity to

place their case and the learned Single Judge erred

in quashing the select list, which judgment of the

learned Single Judge is in clear breach of principles

of natural justice.

70. It is true that all the names, who were in the

select list were not impleaded in the writ petition,

58
which was filed challenging the select list dated

14.07.2015 and subsequent select list. For example,

in the Writ Petition No. 41750 of 2015 – Prashant

Kumar Jaiswal and 12 Others Vs. State of U.P. and 10

Others, which was lead writ petition, there were

select candidates impleaded though in representative

capacity, which fact has been noticed by learned

Single Judge in the impugned judgment in following

words: –

“……………The petitions have arrayed various
selected candidates in representative
capacity. Although the said candidates
were represented by counsels, none
appeared or advanced submissions on their
behalf. On behalf of none of the selected
candidates, Sri Nandan alone has appeared
in Writ-A. NO. 18129 of 2017.”

71. Shri Dave placing reliance on Ashok Kumar and

Another Vs. State of Bihar and Others, (2017) 4 SCC

357 contends that the candidates, who have

participated in the process could not have been

allowed to challenge the selection. This Court in

paragraphs 13 to 19 laid down following: –

“13. The law on the subject has been
crystallised in several decisions of this
Court. In Chandra Prakash Tiwari v.

59

Shakuntala Shukla, (2002) 6 SCC 127, this
Court laid down the principle that when a
candidate appears at an examination
without objection and is subsequently
found to be not successful, a challenge to
the process is precluded. The question of
entertaining a petition challenging an
examination would not arise where a
candidate has appeared and participated.
He or she cannot subsequently turn around
and contend that the process was unfair or
that there was a lacuna therein, merely
because the result is not palatable. In
Union of India v. S. Vinodh Kumar
, (2007)
8 SCC 100, this Court held that: (SCC p.
107, para 18)

“18. It is also well settled that
those candidates who had taken part
in the selection process knowing
fully well the procedure laid down
therein were not entitled to
question the same. (See Munindra
Kumar v. Rajiv Govil, (1991) 3 SCC
368 and Rashmi Mishra v. M.P.

Public Service Commission, (2006)
12 SCC 724.)”

14. The same view was reiterated in Amlan
Jyoti Borooah, (2009) 3 SCC 227, wherein
it was held to be well settled that the
candidates who have taken part in a
selection process knowing fully well the
procedure laid down therein are not
entitled to question it upon being
declared to be unsuccessful.

15. In Manish Kumar Shahi v. State of
Bihar
(2010) 12 SCC 576, the same
principle was reiterated in the following
observations: (SCC p. 584, para 16)

60
“16. We also agree with the
High Court that after having taken
part in the process of selection
knowing fully well that more than
19% marks have been earmarked for
viva voce test, the petitioner is
not entitled to challenge the
criteria or process of selection.

Surely, if the petitioner’s name
had appeared in the merit list, he
would not have even dreamed of
challenging the selection. The
petitioner invoked jurisdiction of
the High Court under Article 226 of
the Constitution of India only
after he found that his name does
not figure in the merit list
prepared by the Commission. This
conduct of the petitioner clearly
disentitles him from questioning
the selection and the High Court
did not commit any error by
refusing to entertain the writ
petition. Reference in this
connection may be made to the
judgments in Madan Lal v. State of
J&K, (1995) 3 SCC 486, Marripati
Nagaraja v. State of A.P., (2007)
11 SCC 522, Dhananjay Malik v.

State of Uttaranchal, (2008) 4 SCC
171, Amlan Jyoti Borooah v. State
of Assam, (2009) 3 SCC 227 and K.A.

Nagamani v. Indian Airlines, (2009)
5 SCC 515.”

16. In Vijendra Kumar Verma v. Public
Service Commission
, (2011) 1 SCC 150,
candidates who had participated in the
selection process were aware that they
were required to possess certain specific
qualifications in computer operations. The
appellants had appeared in the selection
process and after participating in the
interview sought to challenge the

61
selection process as being without
jurisdiction. This was held to be
impermissible.

17. In Ramesh Chandra Shah v. Anil Joshi,
(2013) 11 SCC 309 candidates who were
competing for the post of Physiotherapist
in the State of Uttarakhand participated
in a written examination held in pursuance
of an advertisement. This Court held that
if they had cleared the test, the
respondents would not have raised any
objection to the selection process or to
the methodology adopted. Having taken a
chance of selection, it was held that the
respondents were disentitled to seek
relief under Article 226 and would be
deemed to have waived their right to
challenge the advertisement or the
procedure of selection. This Court held
that: (SCC p. 318, para 18)

“18. It is settled law that a
person who consciously takes part
in the process of selection cannot,
thereafter, turn around and
question the method of selection
and its outcome.”

18. In Chandigarh Admn. v. Jasmine Kaur,
(2014) 10 SCC 521, it was held that a
candidate who takes a calculated risk or
chance by subjecting himself or herself to
the selection process cannot turn around
and complain that the process of selection
was unfair after knowing of his or her
non-selection. In Pradeep Kumar Rai v.
Dinesh Kumar Pandey
, (2015) 11 SCC 493,
this Court held that: (SCC p. 500, para

17)

“17. Moreover, we would concur with
the Division Bench on one more

62
point that the appellants had
participated in the process of
interview and not challenged it
till the results were declared.

There was a gap of almost four
months between the interview and
declaration of result. However, the
appellants did not challenge it at
that time. This, it appears that
only when the appellants found
themselves to be unsuccessful, they
challenged the interview. This
cannot be allowed. The candidates
cannot approbate and reprobate at
the same time. Either the
candidates should not have
participated in the interview and
challenged the procedure or they
should have challenged immediately
after the interviews were
conducted.”

This principle has been reiterated in a
recent judgment in Madras Institute of
Development Studies v. K.

Sivasubramaniyan, (2016) 1 SCC 454.

19. In the present case, regard must be
had to the fact that the appellants were
clearly on notice, when the fresh
selection process took place that written
examination would carry ninety marks and
the interview, ten marks. The appellants
participated in the selection process.
Moreover, two other considerations weigh
in balance. The High Court noted in the
impugned judgment1 that the interpretation
of Rule 6 was not free from vagueness.
There was, in other words, no glaring or
patent illegality in the process adopted
by the High Court. There was an element of
vagueness about whether Rule 6 which dealt
with promotion merely incorporated the

63
requirement of an examination provided in
Rule 5 for direct recruitment 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.

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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.

65

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

66
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.

67

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.

68

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.

69

79. In view of the foregoing discussions, we allow

all the appeals and set aside the judgment of the

Division Bench dated 09.05.2019 and restore the

judgment of the learned Single Judge dated

07.10.2017. Parties shall bear their own costs.

………………….J.

( ASHOK BHUSHAN )

………………….J.

( NAVIN SINHA )
New Delhi,
December 16, 2019.

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