PANKAJ BHATIA - (1.) Questions arising and framed in the following three orders are referred to this Bench for its considerations: (i) order dated 29.11.2018 passed in Writ - A No. 24273 of 2018 (Deepak Singh And 9 others vs. State of U.P . and 8 others), (ii) order dated 12.1.2009 passed in Civil Misc. Writ Petition No. 671 of 2009 ( Ajay Kumar Singh vs. State of U.P. and another ) and (iii) order dated 15.2.2019 passed in Special Appeal No. 09 of 2019 (Himan Singh vs. State of U.P. and 8 others). In Writ A No. 24273 of 2018, the learned Single Judge was confronted with the question as to whether degree holders in Engineering Discipline would be eligible for seeking appointment to the post of Junior Engineer and Foreman wherein the essential eligibility criteria specified, was "Diploma Holders in Engineering Discipline". The learned Single Judge took note of the fact that the Commission issued a Notification for selection of Junior Engineers and Foreman, the advertisement specified the eligibility for selection to the post of Junior Engineers and Foreman as "Diploma Holders in Engineering Discipline". The petitioners, in the said petition, were admittedly degree holders in Engineering and agitated that they have been wrongly ousted as being degree holders in Engineering, they were higher than diploma holders in Engineering Discipline and as such they ought to have been considered as eligible. The Commission had cited before the learned Single Judge that this Court, in Service Single No. 6655 of 2016 ( Alok Kumar Mishra vs. State of U.P .) and as affirmed by a Division Bench in Special Appeal No. 229 of 2016 ( Kartikey vs. State of U.P .) to buttress the proposition that the degree holders were rightly ousted. Learned counsel for the petitioner, therein, on the other hand, had argued that the said two judgements relied upon by the Commission should be held as not having laid down the correct proposition of law, in the light of the decision of the Supreme Court in case of Parvaiz Ahmad Parry vs. State of Jammu and Kashmir , 2016 (1) ESC 54 (SC). Learned Single Judge, in his referring order dated 29.11.2018, held that the decision in the case of Alok Kumar Mishra vs. State of U.P . relied upon the decision of the Supreme Court in the case of Jyoti K.K. And others vs. Kerala Public Service Commission and others , 2010 15 SCC 596. The said judgement, rendered in the case of Alok Kumar Mishra (supra), was upheld in an appeal in the case of Kartikey vs. State of U.P . and was also upheld in Special Leave to Appeal (Civil) No. 17219 of 2016. The learned Single Judge noted the argument of learned counsel for the petitioner that the judgement of the Hon'ble apex Court in the case of Parvaiz Ahmad Parry was a clear authority for the proposition that a higher qualification cannot be viewed as disqualification and consequently it must be held that the degree holders cannot be ousted. Learned Single Judge further recorded that in the case of Parvaiz Ahmad Parry the question raised before the Supreme Court was whether a person who is holding a degree of M.Sc. in forestry would be eligible to apply for a post where the minimum requirement was B.Sc. in the subject concerned.
(2.) In the backdrop of the judgement of the Apex Court in the case of Parvaiz Ahmad Parry vs. State of Jammu and Kashmir and others , the learned Single Judge referred the matter to the present larger Bench framing the following questions: A. Whether a Degree in the field in question is entitled to be viewed as a higher qualification when compared to a Diploma in that field? B. Whether the decisions in Alok Kumar Mishra and Kartikey lay down the correct position in law when they hold that a Degree holder is excluded from the zone of consideration for appointment as a Junior Engineer? C. Whether a degree holder can be held to be ineligible to participate in a selection process for Junior Engineer in light of the relevant statutory rules? D. Whether the exclusion of degree holders from the zone of consideration would meet the tests as propounded by the Supreme Court in State of Uttarakhand Vs. Deep Chandra Tewari? The second reference order was passed in Civil Misc. Writ Petition No. 671 of 2009 wherein the learned Single Judge was posed with the question regarding the appointment to the post of Junior Engineers advertised vide Advertisement dated 29.12.2007 wherein the petitioners were found to be ineligible as they were degree holders whereas the eligibility condition for appointment to the post of Junior Engineer (Civil) Irrigation was "Diploma in Engineering".
(3.) The learned Single Judge disagreed with another judgement rendered by a Single Judge in Writ Petition No. 7012 (S/S) of 2001 ( Annup Ratan Awasthi vs. Public Service Commission, Allahabad and Ors .) wherein the learned Single Judge held that the degree holders were not eligible for the said post. The learned Single Judge while referring the matter to the larger Bench disagreed with the learned Single Judge judgement given in the case of Annup Ratan Awasthi for the following reasons: "(1) The petitioner as a graduate engineer with B.E. in Civil Engineering from University of Pune (1994) has earlier applied for the post of Junior Engineer in the Minor Irrigation Department in pursuance to the Advertisement No. 3 of 1998-99. He was selected for appointment and was allotted hill cadre, which later fell in the State of Uttarnchal. The U.P. Public Service Commission or the State Government did not reject his candidature on the ground that he did not possess the requisite qualifications. The Supreme Court has vide judgement in State of Uttaranchal vs. Siddharth Srivastava and Ors ., (2003) 9 SCC 336 and the judgement in the State of U.P. vs. Raj Kumar Sharma and Ors., Civil Appeal No . 1433 of 2006, dated March 3rd, 2006 directed that since all the post in the plain cadre has been filled up there was no scope for appointment of non-official respondents. The relaxation was given for a period of three years for applicants, when applications were invited for selection by UPPSC or Uttaranchal State Public Service Commission. The relaxation is to be granted when fresh applications are invited. The U.P. Public Service Commission and the State of U.P. are therefore stopped on the principles of constructive resjudicata to question the qualification of the petitioner to appear in the subject selections. The question whether the petitioner holds minimum qualification or required qualification was neither raised for considered and thus the UPPSC and the State Government cannot be permitted to raise the plea again and to reject the candidature of the petitioner. (2) A graduate degree in Civil Engineering is a higher qualification possessed by candidate for the post than the qualification prescribed under the rules. A candidate possessing higher qualification cannot be discriminated and held ineligible on the ground that he does not possess required qualifications. (3) In T.R. Katha N. Daraman vs. Tamil Nadu Water and Drainage Board, (1994) and SCC 282 it was held that a harmony has to be struck in maintaining reasonableness in the ratio between the call of the social justice and the need of higher education without in any way jeopardising the principal object of qualification. The reasonableness of the ratio will depend upon the facts of each case. In this case the graduate engineer is not claiming any benefit, weightage or preference in appointment to the post of Junior Engineers. They are claiming to be eligible as they hold higher qualification in the subject, which is being treated as required qualification. (4) In Union of India Vs. D. Sundera Rama, (1997) 4 SCC 664 the Supreme Court upheld the shortlisting of the candidates possessing higher qualification. It was held that prescribed essential qualification is minimum qualification and that mere possession of minimum qualification does not entitle a candidate to be called for interview. (5) A large number of State and private engineering colleges are turning out thousands of graduate engineers. They are finding it difficult to get jobs. The Courts have to balance their rights to be qualified for the jobs for which a lower qualification is the essential qualification. It would not serve public interest to allow graduate engineers to remain unemployed and to offer jobs of Junior Engineer to diploma holders. (6) There has been a gradual fall of standards in education and quality of work performed by Junior Engineers. With the availability of large number of graduate engineers the department may find persons with higher qualifications, more competent and suitable for the post of Junior Engineers. It is admitted that the job of Junior Engineers can be performed by degree holders and that it is not necessary that only a diploma holder is suitable for the job." ;