Puneet Sharma vs Himachal Pradesh State … on 7 April, 2021


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Supreme Court of India

Puneet Sharma vs Himachal Pradesh State … on 7 April, 2021

Author: S. Ravindra Bhat

Bench: Ashok Bhushan, R. Subhash Reddy, S. Ravindra Bhat

                                                       1

                                                                                 REPORTABLE

                                    IN THE SUPREME COURT OF INDIA
                                     CIVIL APPELLATE JURISDICTION

                                 CIVIL APPEAL NO (S). 1318-1322 OF 2021
                           (ARISING OUT OF SLP (C) NOS. 10533- 10537 OF 2020)


  PUNEET SHARMA & ORS. ETC                                               ….APPELLANT(S)



                                                     VERSUS


  HIMACHAL PRADESH STATE
  ELECTRICITY BOARD LTD. & ANR. ETC.                                   ....RESPONDENT(S)


                                                     WITH

                                 CIVIL APPEAL NO (S). 1323-1324 OF 2021
                           (ARISING OUT OF SLP (C) NOS. 10538- 10539 OF 2020)

                                                     AND

                                 WRIT PETITION (CIVIL) NO. 1028 OF 2020

                                                   ORDER

S. RAVINDRA BHAT, J.

1. Leave granted. With consent of counsel, the appeals and petition were heard
finally.

2. Whether a degree in Electrical Engineering/Electrical and Electronics
Engineering is technically a higher qualification than a diploma in that discipline and,
Signature Not Verified

Digitally signed by
NEETU KHAJURIA
Date: 2021.04.08

whether degree holders are eligible for appointment to the post of Junior Engineer
17:04:24 IST
Reason:

(Electrical) under the relevant recruitment rules, is the issue that falls for decision in
2

these appeals arising out of a common judgment of the Himachal Pradesh High
Court1. As is evident, this issue is not novel and has an almost endemic tendency
requiring judicial attention, albeit in myriad and diverse contexts.

3. The Himachal Pradesh Staff Selection commission (“HPSSC” hereafter),
acting on the requisition sent by the Himachal Pradesh State Electricity Board Ltd.,
(“HPSEB” hereafter) advertised 222 posts of Junior Engineer (Electrical- hereafter
referred to as “JE”) on 27.06.2018. Degree-holders in the concerned discipline
applied for the post; after qualifying the written examination, they were called for
verification of documents but the final result was not declared. They approached the
High Court in writ proceedings, claiming that since they possessed educational
qualifications that were higher than the prescribed minimum (and advertised)
qualifications, they could not be denied consideration. The diploma holders opposed
this claim, and argued that that the qualifications possessed by degree holders was
neither higher nor can be considered in teeth of the recruitment rules as also on the
basis of the advertisement issued by the Himachal Pradesh Staff Selection
Commission. The HPSEB adopted a neutral position; however, it highlighted that per
the applicable regulations, the minimum essential qualification provided for
recruitment to the post of Junior Engineer (Elect.) was “matriculation with Diploma
in Electrical/ Electronics/Electronics and Communication/ Computer Science from
the recognized Institution/ Board/University duly recognized by the Central or State
Government”. HPSEB further stated that the HPSSC could not traverse beyond the
regulations, and was bound to make recruitments in accordance with them. The
HPSSC, which issued the advertisement and conducted the selection, opposed the
petitions and asserted that degree holders could not be considered for recruitment.

1 In CWP No. 138/2020, CWPOA No. 3601/2019 and CWPOA No. 3633/2019 filed by the degree-holders (hereafter
‘degree-holders’) claiming the right of consideration, and CWPOA No. 6534/2019 and CWPOA No. 6252/2020 have
been filed by the diploma holders (“diploma-holder”) opposing the claim of the degree-holders.

3

4. By the impugned judgment, the High Court considered the parties’
submissions, the position in the recruitment rules, and various decisions of this court 2
besides its own decisions3, and concluded that:

“40. It would be noticed that the Hon’ble Supreme Court has
categorically held that normal rule would be that candidate with
higher qualification is deemed to be fulfilled the lower qualification
prescribed for the post. But that higher qualification has to be in the
same channel, which is not the position in the present case. Therefore,
the guiding factor while considering the case of higher qualification
is that it must be in the same line. The degree in engineering is not in
the same line as diploma in engineering and it, therefore, cannot be
considered to be a higher qualification.

41. Judged in light of the aforesaid exposition of law, a Diploma in
Engineering and Degree in Engineering are two distinct
qualifications and a degree in the field in question cannot be viewed
as a higher qualification when compared to Diploma in that field.

Consequently, the degree holder petitioners cannot be permitted to
urge that they possess higher qualification which would meet the
requirement of specific qualifications specified in the rules or
advertisement.

42. In addition to the aforesaid, it would be noticed that the
respondent Electricity Board has itself not considered the degree in
Electrical Engineering/ Electrical & Electronics Engineering to be
superior to the diploma and rather treated these to be two separate
and distinct qualifications and that is why it vide notification dated
03.06.2020 has amended the Recruitment and Promotion Rules for the
post of Junior Engineer (Electrical/Junior Engineer (IT) Class III
(Non Gazetted) in the following manner….”

Arguments of the degree holders

2Jyoti KK v Kerala Public Service Commission (2010) 15 SCC 596;State of Uttarakhand and others vs. Deep
Chandra Tewari and another (2013) 15 SCC 557; State of Punjab v Anita {(2015) 2 SCC 170} Parvaiz Ahmad Parry v
State of Jammu and Kashmir &Ors (2015) 17 SCC 709 Zahoor Ahmad Rather v Sheikh Imtiyaz Ahmad {(2019) 2 SCC
404; Maharashtra Public Service Commission, v Sandeep Shriram Warade&ors 2019 (6) SCC 362; Zonal Manager,
Bank of India Zonal Office, Kochi &Ors v Aaraya K. Babu &Anr (2019) 8 SCC 587

3Himachal Pradesh Staff Selection Commission &Ors v Pawan Thakur 2019 (3) Shim. L.C. 1676; Bhupinder Sharma
v State of HP &ors(CWP No. 161/2019); AvinashKoundal v Himachal Pradesh Staff Selection Commission (CWP No.
1155/2020)
4

5. Ms. Kavita Wadia, appearing for the degree holder appellants, contended that
the expression “minimum”4 was deliberately used without any bar under the rules and
did not prevent appointment of degree holders to the post of JE (Elect.) in HPSEB,
and that diploma was only a minimum requirement. This, she argued is established
beyond doubt from Clause 11 of the Rules for appointment to higher promotional
post of Assistant Engineers (Elect.) where under 5% quota is provided for those who
possessing degree at the time of their appointment as JE (Elect.) and 5% separately
for those who acquired degree during their service as JE (Elect.) after their
confirmation. She relies on the decision of this court in Govt of A.P. vs P. Dalip
Kumar5
which held that the expression ‘minimum’ entitles the employer to choose a
person with higher qualification. A minimum acts as a cut-off filter for the same, and
does not debar recruitment of higher qualified candidates.

6. Ms. Wadia submits that the arguments of diploma holders, i.e. that the “with”
in the rules, is disjunctive (in column 7) – while providing that the qualification
stipulated would be “Minimum Matriculation with diploma in electrical
engineering/electrical & Electronics Engineering …”-defies logic because if ‘with’
were disjunctive and expression ‘minimum’ was used for making matriculation as a
minimum educational requirement, then there was no need to use the expression
“minimum” since to pursue the diploma course a candidate has to have passed
matriculation as is reflected in the requirements for admission to diploma courses in
prospectuses of government colleges. In other words, contends Ms. Wadia, the
minimum qualification would only be matriculation in that case, defeating the
purpose of the rule, which is that those diploma holders with matriculation would be
considered as possessing the minimum or threshold qualification. It is submitted that
“minimum” was intentionally used without any bar under the Rules concerning the

4Occurring in the rules, (The HPSEB amendments in Column – 2, 7 & 10 of the Recruitment and Promotion
regulations to the post of Junior Engineer (Elect.) Notified by notification No. HPSEC (SECTT) R&E/106-10/2006-
93342-562 dated 13.12.2006 and further amended by Notificaiton No. HPSEC (SECTT)R&E/106-10/2010-22792-991
dated 25.05.2010) which read as follows:

“Minimum matriculation with diploma in Electrical Engineering/ Electrical & Electronics
Engineering from a recognized institution/ Board University duly recognized by the Central/State
Government for JE (Elect.) post.”

51993(2)SCC 310 (Ref. Para 13 and 15)
5

appointment of degree holders to the Post of JE (Elect.) in HPSEB, making diploma
as only a minimum requirement. This is established beyond doubt from Clause 11 of
the Rules for appointment to higher promotional post of Assistant Engineers (Elect).

The expression ‘minimum’ entitles the employer to choose a person with higher
qualification as ‘minimum’ acts as a cut off filter for the same and does not debar
recruitment of those who are higher qualified.

7. It is also argued that the term “with” in Clause 7, (reproduced above) is
adjunctive in the said group of words, since it adds to the meaning of a sentence but
when removed, makes no harm to its grammar. As a noun, an adjunctive joins two
components of same weight such as co-ordinating conjunctions. It is further urged
that, the decision in A.K Raghumani Singh & ors v. Gopal Chandra Nath & Ors 6 is
inapplicable since the issue there was whether experience required with the
qualification equivalent to degree was subsequent to attaining the degree or prior to
it. To have held that the experience was to be attained after acquiring the degree
would have led to “with” being read as “subsequent to”. Further, this court held that
“with” has to be contextually interpreted and was to be a disjunctive in the context of
the said rule. It is argued, that in the present case, if the term were to be interpreted
contextually to mean that the diploma would not be a minimum while matriculation
would be, – a construction that renders the expression ‘minimum’ useless, for diploma
cannot be pursued without matriculation and at the same time renders otiose the co-
related Clause 11(v). This is contrary to purposive interpretation of the Rules, which
ought to apply to gather the intention of the lawmaker. The appellant relies on CHD
V. Usha Kheterpal Waie7 where this court observed that so long as the qualification
prescribed by the employer is reasonably relevant and has a rational nexus with the
function and duties attached to the post, and are not violative of the provisions of
Constitution or the statute and Rules, it must be upheld. Counsel submitted that the
impugned judgment fell into error in distinguishing, and not following Jyoti K.K8.

6 2000(4) SCC 30
7 2011 (9) SCC 645
8 Supra, note 2
6

8. It was lastly argued that the High Court erred in applying the judgment of this
court in Zahoor Ahmad (supra) since it pertained to appointments to the Post of
Technician III which is relatable more to field jobs, and restricted the consideration of
‘ITI’ Certificate holders for the said Post to the exclusion of diploma holders. In the
present case, the relevant post is a higher post of JE (Elect.) of which the promotional
post is that of AE (Elect.). Also, in Zahoor Ahmad (supra) no expression viz
“minimum” was used in the Rules and the same was mentioned in a note in the
advertisement therein, which was interpreted by this court. It was lastly urged that it
is not in dispute that the appointing authority cannot defy the rules or make
appointments and, or support a view contrary to the governing and applicable rules.
However, in the present case the applicable rules ought to be read meaningfully,
purposively and in a way that is not destructive of the entire scheme and balance
sought to be maintained in the Rules, keeping in mind the needs of the posts and the
State as well as domiciles. It is submitted that the interpretation of the earlier rules
and the 2020 Rules in Para 40 to 42 of the impugned order is destructive and does
complete violence to the intent of the rule makers.

9. On behalf of the contesting respondents, i.e. the diploma holders, Mr.
Maninder Singh, learned senior counsel requested this court not to interfere with the
well-reasoned judgment of the High Court. It is submitted that the expression
“minimum” is used with the academic qualification, i.e. matriculation and not the
essential technical qualification, viz. a diploma. A diploma in electrical engineering
can be obtained after pursuing a three years course. That should be preceded by a
matriculation or after completing a two years study- after 10thstandard in school.
Therefore, a candidate to be eligible should have obtained a diploma after
matriculation or after 10+2. This clearly eliminated degree holders from the zone of
eligibility.

10. It was argued that the use of “with” between minimum “matriculation” and
diploma operates as a disjunctive. It cannot be read with the word diploma. It is
submitted that only diploma holders such as the contesting respondents could be
considered for selection; their selections were finalized on 02.09.2020 and the select
7

list was prepared by the Commission. Having fulfilled the eligibility conditions and
after getting selected through a valid and legal selection process, the entire
recruitment process was valid. Accordingly, such of the contesting respondents who
qualified in the exam and were successful deserved to be appointed.

11. Learned counsel relied upon the relevant rules to submit that direct
recruitments are made to select category of posts by the Board, i.e. the Sub-Station
Attendant, Electrician and Lineman for whom the essential educational qualifications
are matriculation with ITI. For these categories of posts, there was conscious change
in the rules with effect from 03.05.2018 when the words “or any other higher
qualification in the same trade” were deleted. Thus, from 03.05.2018 diploma
holders were ineligible for consideration for the post of Sub-Station Attendant,
Electrician and Lineman. Secondly, for the post of Junior Engineer (Electrical), the
essential qualification – which is under challenge, is reserved only for diploma
holders. Thirdly, direct recruitment is possible for Assistant Engineers with
regular/full time degree in electrical or electronic engineering or AMIE or those with
full time computer science and electronics and electrical engineering or its
equivalent. Therefore, diploma holders cannot be directly recruited either in the lower
grade of Sub-Station Attendants with effect from 03.05.2018 or as Assistant
Engineers.

12. It is pointed out that 15 government polytechnic colleges offer diploma courses
in Himachal Pradesh whereas only three government colleges offer degree courses in
electrical engineering. The student intake in the diploma course college is as much as
400, whereas the intake in degree courses in electrical engineering in government
colleges is 170 students. Keeping this in mind, if the degree holders were permitted to
compete with diploma holders, the latter would suffer severely and would be
disadvantaged.

13. It is submitted that a close look at the recruitment rules for the HPSEB would
further reveal that even in respect of higher posts of Assistant Engineer, degree
holders are entitled to 36% direct recruitment; diploma holders are entitled to be
8

promoted in a quota of 64%. The relevant portions of the recruitment rules, it is
submitted indicate the following:

[(i) Junior Engineers/ Junior Engineer (Sub-station)/ Junior Engineer
(C/Room)/ Junior Engineer (Power House)/Junior Engineer
(Test)/ Junior Engineer (Installation)/ Junior Engineer
(Telephone)/Foreman in the trade concerned, who are Diploma
Holder with 7 years’ service in the grade, to the extent of 40%

(ii) Junior Engineers/ Junior Engineer (Sub-station)/ Junior Engineer
(C/Room)/ Junior Engineer (Power House)/ Junior Engineer
(Test)/ Junior Engineer (Installation)/ Junior Engineer
(Telephone)/ Foreman in the trade concerned, i.e. persons who are
ITI qualified having 12 years’ service in the trade.

(b) Junior Engineers/ Junior Engineer (Sub-station)/ Junior
Engineer (C/Room)/ Junior Engineer (Power House)/ Junior
Engineer (Test)/ Junior Engineer (Installation)/ Junior Engineer
(Telephone)/ Foreman in the trade concerned, i.e. non – ITI
holders with 15 years’ service in the grade (a) + (b) = 10%.

(iii)From amongst those persons who pass/acquire the qualification of
AMIE (Section A & B) or who acquire Full time/Regular Degree
in Electrical Engineering/ Electrical & Electronic Engineering/
Computer Science Engineering. Electronics & Communication
Engineering & Information Technology in service after
confirmation to service to the extent of 5%.

(iv) Drawing Staff
Circle Head Draftsman with diploma in Electrical Engineering or
Diploma Certificate of draftsmanship from a recognized institute
with 5 year service in the grade having which 10 years’ service as
Draftsman/ Circle Head Draughtsman and with combined 15 years’
service in the Draftsman Cadre: 4%
9

(v) Before joining the service as JE who possess Regular/ Full time
degree in Electrical Engineering/ Electrical & Electronic
Engineering/ Computer Sciences Engineering Electronics and
Communication Engineering & Information Technology from a
recognised University approved by AICTE, Ex Servicemen who have
the relevant qualification equivalence to a recognised degree in
Electrical Engineering or Electrical & Electronic Engineering
stream/ discipline recognized by Govt of India or person who
possess AMIE qualification in above stream/ discipline from Institute
of Engineers (India Calcutta) after confirmation of service = 5%.]

14. It is submitted that the break-up of promotional quota shown with that of the
total promotional quota show that 59% is clearly set out for diploma holders and
those Junior Engineers having a degree, can apply in the 5% quota. This also implies
that some degree holders can be appointed provided they also had a diploma.
Reliance is placed upon certain extracts of a seniority list, setting out names of nine
individuals, who have both diploma and B. Tech /AMIE qualifications. It is submitted
that such individuals were recruited not on the basis of degree qualifications but
rather because they held the requisite diploma qualifications.

15. It is submitted furthermore that there is nothing in the recruitment rules, either
express or implied, which permitted the state authorities to consider and process the
candidature of those possessing degrees in electrical engineering but not possessing
diploma. It is submitted that the impugned judgment quite correctly surmised that the
decision in Jyoti K.K. (supra) was no longer a binding authority in view of the later
judgment of this Court in Anita (supra) and Zahoor Ahmad Rather (supra). Those
decisions held that the prescription of a minimum qualification does not (absent given
compelling circumstances) permit candidates possessing higher qualifications in the
discipline, to apply and be considered for appointment.

16. The HPSEB submits that the rule in question should be so interpreted and
applied to permit degree holders a chance at selection. It is submitted that any
interpretation of rules to exclude better qualified persons is irrational and robs the
10

employer the chance of choosing a better qualified candidate. It is also argued that the
post of Junior Engineer (Electrical) is technical and public interest demands that the
interpretation of the rule extends consideration to someone holding degree.

17. Counsel for the HSEB argued that it is the inherent right of the employer to
seek out better qualified individuals for public appointment; furthermore equivalence
of qualification is not a matter for the courts to determine. HSEB argued that the High
Court in the present case decided that a degree is not a better qualification than a
diploma, without any expert view and contrary to settled law. It further argued that
the notification dated 03.06.2020 is an outcome of an attempt to rationalize the
recruitment norms throughout the State Government for technical posts in all
departments and is an outcome of an exercise beginning in the year 2019 and has
nothing to do with the present litigation, and that notification is applicable
prospectively. It cannot, at any rate be challenged before this court for the first time
merely on the ground that an erroneous interpretation has been taken qua the said
notification by the High Court.

Analysis and Conclusions:

18. The relevant rules stipulating essential qualifications for the post of JE, were
framed and brought into force on 13.12.2006; they repealed the then existing rules
framed by HPSEB in 1996. The notification to the extent it is relevant is extracted
below:

7 Minimum Educational and other Essential
qualification required to direct
recruits I)Minimum matriculation with diploma in
Electrical/Electronics and
Communication/computer Sciences from
the recognised institution/Board/University
duly recognised by the Central or State
Government.

Desirable

II) Knowledge of customs, manners and
11

dialects of Himachal Pradesh & suitability
for appointment in peculiar conditions
prevailing in the State.

10 Method of Recruitment whether by Method of Recruitment
direct recruitment or by promotion,
deputation, transfer i. 80% by direct recruitment on regular or
on contract basis through the HPSSB or
the recruiting agency including
Departmental Recruitment Committee as
constituted by the Board from time to time.

ii. 20% by Promotion.

18 Power to Relax Where the Board is of the opinion that it is
necessary or expedient to do so, it may, by
order for reasons to be recorded in writing
relax any of the provisions of these rules
with respect of any class or category of
persons or posts, the competent authority
shall be the WTM’s of the Board.

19. On 12.01.2007, the All-India Council for Technical Education (AICTE)
prescribed that a student acquires a diploma in Engineering through a minimum of 3
years of institutional study (after 10+2 Secondary Examination). Diploma holders
were to be academically equivalent to students who passed the first year of the 4 year
engineering degree programme. On 24.05.2010 by Clause 11 the Recruitment and
Promotion Regulations applicable to HPSEB were amended; they provided for
essential qualifications for promotion from the post of Junior Engineer (Electrical) to
the post of Assistant Engineer (Electrical). Effective from 21.06.2012, the rules of
recruitment and regulations were amended- inter alia, to the cadre of Assistant
Engineer, by HPSEB providing two distinct quotas in the promotion quota (from
amongst serving Junior Engineers). The existing quota of 6% available to those who
acquired AMIE/Degree in Electrical Engineering qualifications etc. in service with
minimum one years’ regular service after confirmation was reduced to 5% quota by
the amendment. In addition, the promotional quota to the post of Assistant Engineer,
from the cadre of Junior Engineers (with which the present dispute is concerned) was
to the extent of 5% eligible for consideration. This quota was specifically identified
12

as those who had completed their engineering degree “before joining the service of
Junior Engineer.” The relevant extract of amendments- of 2012 are set out below:

“ASSISTANT ENGINEER (E)
COL. 7 (Direct Recruitment)
Minimum educational and other qualification required for direct recruits.

             Existing Provisions                          Amended Provision
i)     Recognized Degree in Electrical       i)     Regular/Full time Degree in
Engineering or electrical & Electronics      Electrical Engineering or electrical &
Engineering        from     recognized       Electronics Engineering from recognized
Institution/University duly recognized       Institution/University duly approved by
by the Central/State Govt. for               the AICTE or AMIE from Institution of
AE(E)posts.                                  Engineers (India Calcutta) or Ex-
                                             servicemen who have the relevant
ii)   Recognized Degree in Computer          equivalence to a recognized Degree in
Science Engineering or Electronic &          above stream/ discipline recognized by
Communication         Engineering      or    the Govt. of India for AE(E) posts.
Information     technology     OR      its   ii)    Regular/Full time Degree in
equivalent from recognized by the            Computer Science Engineering or
Central /State Govt. for AE (IT) post.       Electronic        &        Communication
                                             Engineering or Information technology
Desirable                                    OR its equivalent from a recognized
(a) Experience of working in                 Institution/ University duly approved by
Design/Construction in hilly areas.          the AICTE or AMIE in above stream/
(b) Knowledge of Customs, manners            discipline recognized by the Govt. of
and dialects of Himachal Pradesh &           India for AE (E) post.
Suitability for appointment in Peculiar      Desirable
conditions prevailing in the state.          (a) Experience         of   working   in
                                             Design/Construction in hilly areas.
                                             (b) Knowledge of Customs, manners
                                             and dialects of Himachal Pradesh &
                                             Suitability for appointment in Peculiar
                                             conditions prevailing in the state.


ASSISTANT ENGINEER (E)
Col. No. 11 (iii) (iv) & (v)

In case of recruitment by promotion, deputation, transfer, grades from which
promotion/deputation/transfer is to be made.

13

Existing Provision                          Amended Provisions
(iii) from amongst those persons who        (iii) from amongst those persons who
pass/acquire the qualification of           pass/acquire the qualification of AMIE
AMIE/Degree          in        Electrical   (Section A & B) or who acquire Full time/
Engineering/ Electrical & Electronic        Regular Degree in Electrical Engineering/
Engineering/       Computer       Science   Electrical &Electronic       Engineering/
Engineering,         Electronic        &    Computer Science Engineering. Electronics
Communication        Engineering       &    &     Communication      Engineering   &
Information Technology in Service           Information Technology in service after
having minimum one year regular             confirmation to service. = 5%
service after confirmation to service
                                 = 6%
(iv) Drawing Staff:                         (iv) Drawing Staff:
Circle Head Draftsman possessing            Circle Head Draftsman possessing Diploma
Diploma in Elect. Engineering or            in Elect. Engineering or Diploma
Diploma Certificate of Draftsmanship        Certificate of Draftsmanship from a
from a recognized Institute having 5        recognized Institute having 5 years’ service

years’ service in the grade failing which in the grade failing which 10 years’ service
10 years’ service as Draftsman/Head as Draftsman/Head Draughtsman/Circle
Draughtsman/Circle Head Head Draughtsman and failing both total
Draughtsman and failing both total 15 15 years services in the Draftsman cadre.

years services in the Draftsman cadre.      = 4%
=3%
(v) Before joining the service as JE who    (v) Before joining the services as JE who
possess      degree      in    Electrical   possess Regular/ Full time degree in
Engineering/ Electrical & Electronic        Electrical Engineering/ Electrical &
Engineering/      Computer        Science   Electronic Engineering/ Computer Science
Engineering.         Electronics       &    Engineering. Electronics & Communication
Communication         Engineering      &    Engineering & Information Technology
Information Technology from a               from a recognized university approved by
recognized university including AMIE        the AICTE. Ex-servicemen who have the
& having minimum one year regular           relevant qualification equivalence to a
service in the cadre of JE after            recognized      Degree       in    Electrical
confirmation in the service.      =5%       Engineering or Electrical & Electronic
                                            Engineering Stream/ discipline recognized
                                            by the Govt. of India or person who posses
                                            AMIE qualification in above stream/
                                            discipline from Institute or Engineers (India
                                            Calcutta) after confirmation to service.
                                            =5%


Note: other terms and conditions shall remain unchanged. These amendments will be
applicable with immediate effects.

14

20. By the advertisement in question, HPSEB invited applications for direct
recruitment to 222 vacancies in the cadre of JE (Electrical). Several candidates
including the present appellants (who are degree holders) applied. They were
allowed to participate in the written test and many of them were even called for an
interview and verification of documents – sometime in April 2019. When matters
stood thus, diploma holders preferred an application 9 before the State Administrative
Tribunal. By order dated 21.12.2018 the tribunal interdicted the recruitment process.
As there was some conflict and confusion with respect to the interpretation of the
rules on the question i.e. whether degree holders could compete for the post of Junior
Engineer, other writ petitions were preferred. The High Court 10 constituted an expert
committee to examine all issues of equivalence of academic/technical qualification
and also whether persons possessing equal qualifications were eligible for the
advertised post. The committee by this report dated 15.06.2019; influenced by this
Court in Zahoor Ahmad Rather (supra) expressed the opinion that candidates
possessing higher qualifications were not eligible for consideration. Other writ
petitions too were preferred before the High Court.

21. During pendency of the litigation, on 03.06.2020, the HPSEB further amended
the Rules inserting a provision enabling candidates with a minimum matriculation
with diploma in Computer Science Engineering or Electronic & Communication
Engineering as well as those with degrees. The amendment reads as follows:

“Diploma or degree in Computer Science Engineering or
ElectronicEngineering & Communication Engineering or
Information Technology from recognised Institute/ University
established by Law by the State/ Central Govt. OR AMIE from
Institution of Engineers (India) (only those candidates who are
enrolled for AMIE with the Institute of Engineers (India) Kolkata
will be permanent recognition up to 3105.2013) would be eligible.”

After taking into account the submission of the parties, the High Court by the
impugned judgment, endorsed the opinion of the committee and was of the view that
only those with matriculation and holding diploma in the relevant subject are

9 O.A. 7397 of 2018
10 By an order dated 21.05.2019
15

considered eligible for the post of Junior Engineer. In W.P (C) 1028/2020, the
Petitioners argue that the notification of 03.06.2020 is arbitrary as it is prospective; in
the alternative, they claim that it should be read as clarificatory and therefore always
applicable.

22. The question whether the stipulation or prescription of the particular academic
qualification excludes an applicant who possesses what is termed as a higher
qualification, from their candidature to the concerned post has often arisen for
consideration by this Court. In P.M. Latha & Anr. v. State Of Kerala & Ors. 11, the
issue which arose for consideration was whether, for primary class teachers, the
prescribed (and advertised) qualification Trained Teacher Certificates (TTC),
included those who held B.Ed. degrees. This court was forthright in holding that the
B.Ed. qualification could not be considered as a higher qualification than the TTC
and that the TTC qualification was “given to teachers especially trained to teach
small children “primary classes”, whereas those with B.Ed. were trained to impart
education to students of “higher classes”. A similar view was expressed in Yogesh
Kumar & ors v. Government of NCT Delhi & Ors
12 vis-a-vis the same stipulation i.e.,
B.Ed. and TTC qualifications. The Court further held in Yogesh Kumar (supra) that
“a specialized training given to teachers for teaching small children at primary level
cannot be compared with training given for awarding B.Ed. degree.”

23. The next judgment is Jyoti K.K. & Ors. v. Kerala Public Service Commission
& Ors
.13, where the issue was whether degree holders could be considered for the
post of Sub-Engineer (Electrical) in the Kerala State Electricity Board, which had
prescribed diploma in Electrical Engineering or SSLC or its equivalent as the
eligibility criteria. This Court took into consideration Rule 10A and inter alia
observed as follows:

“6. Rule 10(a)(ii) reads as follows:

“10. (a)(ii) Notwithstanding anything contained in these Rules or in the
Special Rules, the qualifications recognised by executive orders or
11 (2003) 3 SCC 541
12 (2003) 3 SCC 548
13 (2010) 15 SCC 596
16

standing orders of Government as equivalent to a qualification
specified for a post in the Special Rules and such of those higher
qualifications which presuppose the acquisition of the lower
qualification prescribed for the post shall also be sufficient for the
post.”

7. It is no doubt true, as stated by the High Court that when a
qualification has been set out under the relevant Rules, the same
cannot be in any manner whittled down and a different qualification
cannot be adopted. The High Court is also justified in stating that the
higher qualification must clearly indicate or presuppose the acquisition
of the lower qualification prescribed for that post in order to attract
that part of the Rule to the effect that such of those higher
qualifications which presuppose the acquisition of the lower
qualifications prescribed for the post shall also be sufficient for the
post. If a person has acquired higher qualifications in the same
Faculty, such qualifications can certainly be stated to presuppose the
acquisition of the lower qualifications prescribed for the post. In this
case it may not be necessary to seek far.

8. Under the relevant Rules, for the post of Assistant Engineer, degree
in Electrical Engineering of Kerala University or other equivalent
qualification recognised or equivalent thereto has been prescribed. For
a higher post when a direct recruitment has to be held, the qualification
that has to be obtained, obviously gives an indication that such
qualification is definitely higher qualification than what is prescribed
for the lower post, namely, the post of Sub-Engineer. In that view of the
matter the qualification of degree in Electrical Engineering
presupposes the acquisition of the lower qualification of diploma in
that subject prescribed for the post, shall be considered to be sufficient
for that post.

9. In the event the Government is of the view that only diploma-holders
should have applied to post of Sub-Engineers but not all those who
possess higher qualifications, either this Rule should have excluded in
respect of candidates who possess higher qualifications or the position
should have been made clear that degree-holder shall not be eligible to
apply for such post. When that position is not clear but on the other
hand the Rules do not disqualify per se the holders of higher
qualifications in the same Faculty, it becomes clear that the Rule could
be understood in an appropriate manner as stated above. In that view
of the matter the order [Jyothi K.K. v. Kerala Public Service
Commission, Original Petition No
. 9602 of 1998, order dated 30-3-
2000 (Ker)] of the High Court cannot be sustained. In this case we are
not concerned with the question whether all those who possess such
qualifications could have applied or not. When statutory Rules have
17

been published and those Rules are applicable, it presupposes that
everyone concerned with such appointments will be aware of such
Rules or make himself aware of the Rules before making appropriate
applications. The High Court, therefore, is not justified in holding that
recruitment of the appellants would amount to fraud on the public.”

24. It is evident therefore, that this Court was of the opinion that for the post of
Sub-Engineer (which can be termed as comparable to the post of Junior Engineer in
the present case), the Kerala State Electricity Board felt that those possessing degree
as well could be considered. This Court upheld the contention.

25. In Anita (supra) this court was concerned with JBT teachers, where the
minimum qualification was two years’ junior basic teachers’ training. Those with
MSc, B.Ed. and MA qualifications were held ineligible, looking at the nature of the
job i.e. teaching primary classes. Jyoti (supra) was distinguished because the
appointing authority had the option of considering appointment of persons with
higher qualifications.

26. In Zahoor Ahmad Rather (supra) the post in question was “Technician-III”in
the Power Development Department in the State of Jammu and Kashmir. The
relevant stipulation with respect to qualification was “Matric with ITI in the relevant
trade.” The appellants held diploma in Electrical Engineering and were included in
the list of disqualified candidates. This resulted in litigation which ultimately
culminated in the judgment of this court. This court held in its judgment14:

“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 of
Technician III in the Power Development Department is a Matric with
ITI in the relevant trade. The Board at its 116th 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 of Technician III. Moreover, 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,

14 (2019) 2 SCC 404
18

the Electrical trade is the prescribed qualification specified in the
advertisement.”

27. Thereafter, the Court discussed the previous rulings in P.M. Latha, Jyoti K.K.
and Anita (supra), then concluded that the candidature of the diploma holders was
correctly rejected and held as follows:

“26. We are in respectful agreement with the interpretation which has
been placed on the judgment in Jyoti K.K. [Jyoti K.K. v. Kerala Public
Service Commission
, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] in
the subsequent decision in Anita [State of Punjab v. Anita, (2015) 2
SCC 170 : (2015) 1 SCC (L&S) 329] . The decision in Jyoti K.K. [Jyoti
K.K. v. Kerala Public Service Commission
, (2010) 15 SCC 596 : (2013)
3 SCC (L&S) 664] 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 necessarily presupposes the acquisition of another,
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 K.K. [Jyoti K.K. v. Kerala
Public Service Commission
, (2010) 15 SCC 596 : (2013) 3 SCC (L&S)
664] 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 [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW)
No. 135 of 2017, decided on 12-10-2017 (J&K)] of the High Court was
justified in reversing the judgment [Zahoor Ahmad Rather v. State of
J&K
, 2017 SCC OnLine J&K 936] 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 [Imtiyaz
Ahmad v. Zahoor Ahmad Rather, LPA (SW) No
. 135 of 2017, decided on
12-10-2017 (J&K)] of the Division Bench.

27. 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.

19

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 K.K. [Jyoti K.K. v. Kerala Public Service Commission,
(2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] must be understood in
the context of a specific statutory rule under which the holding of a
higher qualification which presupposes the acquisition of a lower
qualification was considered to be sufficient for the post. It was in the
context of specific rule that the decision in Jyoti K.K. [Jyoti
K.K. v. Kerala Public Service Commission
, (2010) 15 SCC 596 : (2013)
3 SCC (L&S) 664] turned.”

28. It would be also useful to notice a later judgment of this court, in Chief
Manager, Punjab National Bank and Another v Anit Kumar Das 2020 SCC On Line
SC 897 where the issue was, whether for the post of peon in the appellant Bank, a
degree holder (graduate) could be appointed, given the conscious decision of the
employer, that only those who held 10+2 pass qualifications would be considered and
those with graduation qualification could not be considered. This court held that the
appointment of the respondent, who was a graduate, after he suppressed the fact that
he held a degree, and did not disclose it, was unsupportable. In this context, it was
observed that as to what qualifications are applicable to what class of posts, is a
matter of discretion to be exercised by the employer, which the courts would be slow
to interdict. This decision too supports the conclusions in the present case, since the
employer, HPSEB asserts that it considers degree holders eligible for appointment to
the post of JE.

29. In the present case, what is evident from the rules is that direct recruitment to
the post of JEs in HPSEB is to the extent of 72%. Undoubtedly, eligibility is amongst
those who passed in matriculation or 10+2 or its equivalent qualification. However,
this Court is of the opinion that the diploma holders’ contention that the minimum
qualification is matriculation and that the technical qualification is diploma is
incorrect. The minimum qualification for the post cannot be deemed to be only
matriculation but rather that only such of those matriculates, or 10+2 pass students,
20

who are diploma holders would be eligible. The term “with” in this category has to
be read as conjunctive.

30. As far as the merits of the main question i.e. whether degree holders too can
apply for the post of JEs, a close examination of the rules shows that a lion’s share of
the posts at the JE level is set apart for direct recruitment. However, when it is at the
level of the higher post i.e. Assistant Engineer which is a promotional post direct
recruitment is only to the extent of 36%. Of the balance 64%, various sub-quotas
have been stipulated for feeder cadres; the largest percentage being for Junior
Engineers. For a long time, even on the date of the advertisement, two distinct quotas
(of 5%) had been set apart for promotion of Junior Engineers holding degree
qualifications in the concerned subject.

31. This Court is conscious that the issue in question is whether the minimum
qualification of a diploma in electrical or electronic engineering or other prescribed
qualifications includes a degree in that discipline. However, the rules have to be
considered as a whole. So viewed, the two sub-quotas are:

(1) 5% enabling those diploma holders who acquire degree qualifications during
service as Junior Engineers; and
(2) 5% enabling among those who hold degrees before joining as Junior Engineers;

32. The latter (2) conclusively establishes that what the rule making authority
undoubtedly had in mind was that degree holders too could compete for the position
of JEs as individuals holding equivalent or higher qualifications. If such
interpretation were not given, there would be no meaning in the 5% sub-quota set
apart for those who were degree holders before joining as Junior Engineers – in
terms of the recruitment rules as existing.

33. The court’s opinion is fortified by the latest amendment brought about on
03.06.2020. This clarifies beyond doubt that even for the post of Junior Engineers,
those individuals holding higher qualifications are eligible to compete. In the opinion
of this Court, though the amending rules were brought into force prospectively,
nevertheless, being clarificatory, they apply to the recruitment that is the subject
matter of the present controversy. Such a position (i.e. clarificatory amendments
21

operative retroactively, despite their enforcement prospectively) has been held in
several previous judgments of this court. In Zile Singh v. State of Haryana15 this
Court examined the various authorities on statutory interpretation and concluded:
(SCC pp. 8-9, paras 13-14)

“13. It is a cardinal principle of construction that every statute is
prima facie prospective unless it is expressly or by necessary
implication made to have a retrospective operation. But the Rule in
general is applicable where the object of the statute is to affect
vested rights or to impose new burdens or to impair existing
obligations. Unless there are words in the statute sufficient to show
the intention of the legislature to affect existing rights, it is deemed
to be prospective only–‘nova constitutiofuturisformamimponeredebet
non praeteritis’–a new law ought to regulate what is to follow, not
the past. (See Principles of Statutory Interpretation by Justice G.P.
Singh, 9th Edn., 2004 at page 438.) It is not necessary that an
express provision be made to make a statute retrospective and the
presumption against retrospectivity may be rebutted by necessary
implication especially in a case where the new law is made to cure
an acknowledged evil for the benefit of the community as a whole
(ibid., page 440).

14. The presumption against retrospective operation is not
applicable to declaratory statutes…. In determining, therefore, the
nature of the Act, regard must be had to the substance rather than to
the form. If a new Act is ‘to explain’ an earlier Act, it would be
without object unless construed retrospectively. An explanatory Act
is generally passed to supply an obvious omission or to clear up
doubts as to the meaning of the previous Act. It is well settled that if
a statute is curative or merely declaratory of the previous law
retrospective operation is generally intended…. An amending Act
may be purely declaratory to clear a meaning of a provision of the
principal Act which was already implicit. A clarificatory amendment
of this nature will have retrospective effect (ibid., pp. 468-69).”

34. In Vijay v. State of Maharashtra16, this court held as follows:

“12. The appellant was elected in terms of the provisions of a
statute. The right to be elected was created by a statute and, thus,
can be taken away by a statute. It is now well settled that when a
literal reading of the provision giving retrospective effect does not
15(2004) 8 SCC 1
16(2006) 6 SCC 289
22

produce absurdity or anomaly, the same would not be construed to
be only prospective. The negation is not a rigid rule and varies
with the intention and purport of the legislature, but to apply it in
such a case is a doctrine of fairness. When a law is enacted for the
benefit of the community as a whole, even in the absence of a
provision, the statute may be held to be retrospective in nature.
The appellant does not and cannot question the competence of the
legislature in this behalf.

35. Likewise, in Manish Kumar v Union of India17, it was held that:

“Declaratory, clarificatory or curative Statutes are allowed to
hold sway in the past. The very nature of the said laws involve the
aspect of public interest which requires sovereign Legislature to
remove defects, clarify aspects which create doubt. The
declaratory law again has the effect of the legislative intention
being made clear. It may not be apposite in the case of these
Statutes to paint them with the taint of retrospectivity.”

36. It would also be relevant to notice that in the appeal, it has been specifically
averred that the HPSEB has been making contractual appointments from amongst
degree holders in the cadre of Junior Engineers, and that an order was issued upon the
recommendation of the Screening Committee, which through its meeting held on
11.04.2018 had cleared the regularization of 28 such candidates. These degree
holders are equivalent to Junior Engineers, and had been working for periods ranging
between 4 to 6 years. A copy of that order has been produced as Annexure P-10 in
the Special Leave Petition.18

37. The considerations which weighed with this court in the previous decisions i.e.
P.M. Latha, Yogesh Kumar, Anita (Supra) were quite different from the facts of this
case. This court’s conclusions that the prescription of a specific qualification,
excluding what is generally regarded as a higher qualification can apply to certain
categories of posts. Thus, in Latha and Yogesh Kumar as well as Anita (supra) those
possessing degrees or post-graduation or B.Ed. degrees, were not considered eligible
for the post of primary or junior teacher. In a similar manner, for “Technician-III” or

17(2019) 8 SCC 416
18 SLP (C) 10533-37 of 2020
23

lower post, the equivalent qualification for the post of Junior Engineer i.e. diploma
holders were deemed to have been excluded, in Zahoor Ahmed Rather (supra). This
court is cognizant of the fact that in Anita as well as Zahoor (supra) the stipulation in
Jyoti (supra) which enabled consideration of candidates with higher qualifications
was deemed to be a distinguishing ground. No such stipulation exists in the HPSEB
Rules. Yet, of material significance is the fact that the higher post of Assistant
Engineer (next in hierarchy to Junior Engineer) has nearly 2/3rds (64%) promotional
quota. Amongst these individuals, those who held degrees before appointment as a
Junior Engineers are entitled for consideration in a separate and distinct sub-quota,
provided they function as a Junior Engineer continuously for a prescribed period.
This salient aspect cannot be overlooked; it only shows the intent of the rule makers
not to exclude degree holders from consideration for the lower post of Junior
Engineers.

38. As noticed previously, in addition to the above considerations, an amendment
to the rules was made on 03.06.2020 declaring that those with higher qualifications
are also entitled to apply or be considered for appointment. This amendment was
brought in to clear all doubts and controversies and, in that sense, the amending
provisions should be deemed to have been inserted from inception.

39. For the foregoing reasons, these batches of appeals by the degree holders have
to succeed. The respondent HPSEB is directed to process the candidature of all
applicants, including the degree holders who participated, and depending on the
relative merits, proceed to issue the final selection list of all successful candidates,
after holding interviews, etc. The impugned judgment is accordingly set aside; the
appeals are allowed and writ petition is allowed partly, in the above terms, without
order on costs.

………………………………….J.

[UDAY UMESH LALIT]

………………………………….J.

[S. RAVINDRA BHAT]
New Delhi,
April 07, 2021.



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