Sunil Ambwani, J. - (1.) HEARD learned counsel for the parties.
(2.) BY this writ petition the petitioner is praying for writ of certiorari for quashing the order dated 4.12.2008 by which his candidature for the post of Junior Engineer (Civil) vide advertisement No. 6/3 for the recruitment to the post of Junior Engineer (Civil) (backlog) in the Public Works Department, U.P. has been rejected on the ground that he holds graduate degree in engineering. The petitioner is graduate in engineering with Bachelor of Engineering from University of Pune in the year 1994. He applied for selections for Junior Engineer in the recruitment of the year 1998 for 544 posts of Junior Engineer (Civil/Backlog). The result was declared on 7.1.2000. The U.P. Public Service Commission sent recommendation to the U.P. Government on 30.10.2000, which forwarded the recommendation on 31.10.2000 to the Chief Engineer's Office at Almora. A separate State of Uttaranchal came into existence on 9.11.2000. The recommendation of U.P. Government to the Government of Uttaranchal was not accepted by the Government of Uttaranchal on the ground that new reservation policy of the State of Uttaranchal is different and that there are practical and legal difficulties in giving appointment to the candidates recommended by the U.P. Public Service Commission. The matter went up to the Supreme Court in state of Uttaranchal and others v. Siddarth Srivastava and others, (2003) 9 SCC 336. The Supreme Court held that the decision of the High Court dismissing the writ petition was not correct and gave directions in para 31 as follows: "31. It was also urged in the alternative that the State of Uttar Pradesh may be directed to give appointments to the non-official respondents. This aspect was neither raised before the High Court nor it was considered. Hence, we do not wish to deal with the same. All that we can say is that this order shall not come in the way of the State of Uttar Pradesh, if so advised, to consider the claims of the non- official respondents for appointments based on the selection made by UPPSC. Having regard to the peculiar situation in which the non-official respondents are placed, we would like to say that in case the non-official respondents apply as and when the applications are invited for selection either by UPPSC or by the Uttaranchal State Public Service Commission in future within a period of three years, the UPPSC or the Uttaranchal State Public Service Commission shall consider them for selection subject to their satisfying all other eligibility requirements but relaxing the upper age-limit." The candidates, whose names were included in the select list dated 7.1.2000 including the petitioner approached the State of U.P. for appointment. The writ petitions were allowed by the learned Single Judge. The State of U.P. filed a letter patent appeal, which was dismissed. The State of U.P. then filed Civil Appeal No. 1433 of 2006, which was allowed after reiterating the law, that the selections do not give right to appointment. The Supreme Court found that the High Court after having correctly indicated the legal position failed to apply the same to the factual scenario. Since all the posts advertised for plain cadre were filled, the stand of the State that there was no scope for appointment was accepted. The Supreme Court directed that the relaxation be given for a period of three years for appointment, when the applications are invited for selections by the U.P. Public Service Commission or Uttaranchal State Public Service Commission. The relaxation was to be granted, when fresh applications were invited. The Supreme Court allowed the appeals on March 3rd, 2006.
(3.) NOW the post of Junior Engineers have again been advertised vide advertisement dated 29.12.2007. By the communication dated 4.12.2008 of the U.P. Public Service Commission, the petitioner has now been found ineligible to apply for the post on the ground that a degree holder is not eligible for the post. Shri Vivek Mathur, learned counsel for the Public Works Department has relied upon the Single Judge judgment of this Court dated 5.7.2005 in Writ Petition No. 7012 (S/S) of 2001, Anoop Ratan Awasthi v. Public Service Commission, Allahabad and others, connected with Writ Petition No. 7062 (S/S) of 2001 in which the rejection of the candidature of graduate engineers on the post of Junior Engineer (Civil), Irrigation was upheld on the ground that in Rule 8A of the U.P. Irrigation Department Civil Engineering Subordinate Service Rules, 1992 the essential qualification is diploma in engineering. Learned Judge gave following reasoning to dismiss the writ petition : (1) The qualification prescribed in the rules is diploma in engineering, which is not a minimum qualification but a required qualification; (2) In K. Kappasami and another v. State of Tamil Nadu and others, 1998 (8) ESC 459, it was held that the statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the Rule, does not mean that the Rules stood obliterated. Till the Rule is amended, the Rule applies. (3) In Yogesh Kumar and others v. Government of NCT Delhi and others, 2003 3 SCC 548, it was held that recruitment to public services shall be held strictly in accordance with the tenure of advertisement and recruitment rules if any and that no deviation is permitted to deprive many others, who would have competed for the post. (4) The argument that the junior engineers acquiring degrees during the service are given special quota in promotions is applicable to those engineers, who have obtained another degree and not by those, who were graduate engineer, when they appeared in the selections.;