- (1.) A. P. Sahi, J. The petitioner has challenged the rejection of her candidature by the respondent No. 2 and has further prayed for a mandamus to the said respondent for consideration of her candidature as Lecturer in Hindi for being appointed as a Teacher in an Intermediate College governed by the provisions of the U. P. Intermediate Education Act, 1921 and the Regulation framed thereunder read with U. P. Secondary Education Services Selection Board Act, 1982.
(2.) THE undisputed facts are that the petitioner applies for the post of Lecturer in Hindi. THE qualification prescribed for the said post are enumerated in Appendix-A which provides for the basic qualification for the appointment as a Teacher framed under Regulation I of Chapter-II of the Regulations framed under the Act. Item No. 2 of the Appendix clearly spells out that the minimum qualification required for the appointment as a Lecturer to teach Intermediate classes is M. A. in Hindi and B. A. with Sanskrit as one of the subjects. THE petitioner also does not dispute the aforesaid qualifications prescribed. THE petitioner admittedly does not have Sanskrit in B. A. as one of the subjects. However, the petitioner contends that she is M. A. In Sanskrit and, therefore, she should be deemed to be qualified as per the requirement of eligibility. It has been urged that the requirement of Sanskrit in B. A. is only to ensure that one of the papers in Intermediate classes which is of Sanskrit could be effectively handled with and that the students may be able to have the advantage of being taught Sanskrit by a person having the aforesaid minimum qualification. THE submission made on behalf of the petitioner is that the petitioner possesses a higher qualification and, as such, is fully equipped to meet the aforesaid exigency and, therefore, she is entitled to be treated as having possessed the minimum qualifications. Learned Counsel for the petitioner Sri S. P. Singh has advanced the aforesaid submission and has placed heavy reliance on the decision of this Court in the case of Smt. Chandra Kala Tiwari v. U. P. Secondary Education Services Selection Board, Allahabad, 2003 (1) LBESR 632 (All) : (2003) 2 ESC 739. Having examined the facts of the case and having heard the learned Counsel for the parties, the Court is of the opinion that in case the aforesaid proposition advanced by the petitioner is accepted, the same would violate Articles 14 and 16 of the Constitution of India for the following reasons:
(3.) THE qualifications prescribed under the Statute can neither be amended nor modified by any judicial intervention. THE power to specify a qualification for a particular post is that of the authority empowered to legislate on the subject. THE wisdom of the legislative enactment to provide a particular qualification for a particular post cannot be whittled down unless it is shown that it is contrary to law. Merely because a person possesses a better qualification or a higher qualification, the same cannot be a ground to disregard the essential qualification prescribed under the Rules. What can be done by judicial interpretation is to declare a qualification either to be in accordance with or against Rules. THE power to provide an altogether new qualification is not contemplated under any Rule of judicial interpretation. THE submission made by the learned Counsel for the petitioner on the strength of the decision relied by him has the effect of reading into the Rules an altogether new qualification. This, in the opinion of the Court, cannot be permitted in law as this can only be done exclusively by the authority empowered to legislate on the subject. This has to be examined also on the touch stone of the consequences that may arise out of a such situation. The appointment as claimed by the petitioner would be an appointment in disregard to the qualification prescribed under the Rules. Reference may be had to the case of District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr. v. M. Tripura Sundari Devi, (1990) 3 SCC 655. The following paragraphs is quoted from the aforesaid judgment to illustrate the aforesaid conclusion : "it must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact. ";