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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.170­171 OF 201   8 (Arising out of SLP (C) Nos.    24387­88/2013   )

ASHISH KUMAR                …APPELLANT

VERSUS

THE STATE OF UTTAR PRADESH & ORS.   …RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

1. These two appeals have been filed against the judgment of

High Court of judicature at Allahabad (Lucknow Bench),

Lucknow, dated 04.10.2010 dismissing the Special Appeal No.446

of 2006 of the appellant as well as judgment dated 20.12.2012

dismissing the review application filed by the appellant.

Parties shall be referred to as referred in the appeal.

2. Brief facts of the case giving rise to these appeals are:

The appellant belongs to other backward caste who has

passed graduation (B.A.) with Psychology and has also done

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post­graduation in Psychology from Kanpur University.

Appellant has also obtained master degree in Human Resource

Management and Industrial Relations from Lucknow University in

the year 1997. An advertisement dated 30.08.2001 was issued by

the Director, Social Welfare Department, U.P., advertising

various posts under Director, Social Welfare Department and

other department of State. Advertisement also contained

recruitment for post of Psychologist (03 posts). The appellant

submitted the application for the post of ‘Psychologist’. The

appellant was issued admit card for appearing in the written

examination. The appellant appeared in the written examination

and was declared successful and included in the merit list. A

letter dated 02.05.2003 was issued to the appellant asking the

appellant to appear along with original certificates for

verification of documents. The appellant appeared along with

all the documents on 12.05.2003. When appellant appeared on

12th  May, he was informed that he is not eligible and his

appointment for the post of ‘Psychologist’ cannot be made. The

appellant submitted a representation on 02.06.2003 to the

respondent. The appellant having not been given appointment;

hence, he filed a writ petition praying for the following

relief:

“ PRAYER

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(I) issue a writ order or  direction   including a  writ in the nature   of  mandamus commanding the   opposite parties to appoint  the   petitioner on the post  of   Psychologist for which  the   petitioner is fully  eligible and   qualified as  per advertisement   published  for direct recruitment   in SAMOOH 'GA'.

(II) Issue a writ order or  direction   including a  writ in the nature   of  mandamus commanding the   opposite not to appoint any  other

candidature on the  post of   Psychologist for  which the   petitioner is  fully eligible.

(III)Issue a writ order or  direction   including a  writ in the nature   of  mandamus commanding the   opposite parties not to  harass   and victimize the petitioner in   any  manner whatsoever.

(IV) Issue such other order/orders as may deem just and proper by this Hon'ble Court in the Circumstances of the case.

(V) Award the cost of petition  in favour of the  petitioner.”

3. In the writ petition, learned single Judge directed for

filing a counter affidavit and also bringing on record the

copy of the Order passed on the representation of the

appellant dated 02.06.2003. The appellant also filed a

Contempt Application No.182 of 2004 in which Director, Social

Welfare was directed to appear in person. An Order dated

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19.04.2004 was passed by the respondent rejecting the

representation of the appellant. The appellant prayed for

amendment of the writ petition, praying for quashing the order

dated 19.04.2004 which prayer was allowed to be added. Learned

single Judge by its judgment dated 18.05.2006 dismissed the

writ petition. Learned single Judge accepted the case taken up

by the respondent in the counter affidavit that appellant is

not qualified for the post since he does not have training

qualification i.e. L.T./B.T.B.Ed. The appellant filed special

appeal which too was dismissed. Review application filed

thereafter was also rejected.

4.  We heard Shri Mukesh K. Giri, learned counsel for the

appellant and Shri Ajay Kumar Mishra, Additional Advocate

General, appearing for the State of U.P.

5. Learned counsel for the appellant submits that the

appellant being graduate and post­graduate in ‘Psychology’ was

fully eligible for the post of ‘Psychologist’. It is submitted

that the advertisement has been wrongly read by the High

Court. Graduate in Psychology was qualified for the post and

advertisement does not prescribe qualification as graduate

with Psychology and L.T./B.T. B.Ed. He further submits that

although the post of Psychologist in the Social Welfare

Department was declared as dead cadre by the Government Order

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dated 09.05.2008 but said posts were again revised by the

subsequent Government Order dated 17.08.2010. He submits that

post of Psychologist is not a teaching post; hence, it was not

necessary to have training qualification. Learned counsel has

also relied on the rules namely Janjatiya Vikas Shikshan Aur

Kermchariverg Sewa Niyamawali, 1991, according to which, he

submits that for Psychologist, training qualification is not

essential qualification and as per rule minimum qualification

is M.A. in Psychology. B.Ed. is only preferable qualification.

He submits that the essential work of the Psychologist was to

provide educational counseling to the students and other

duties and was not essentially a teaching post. He submits

that  the  advertisement  mentioned,  in  subject  of Psychology

Graduate or L.T./B.T. B.Ed.

6. Shri Ajay Kumar Mishra, Additional Advocate General,

refuting the submissions of learned counsel for the appellant

contends that respondents have rightly held the appellant not

qualified. He submits that according to advertisement

essential qualification is graduate in Psychology with

L.T./B.T.B.Ed. He submits that Janjatiya Vikas Shikshan Aur

Kermchariverg Sewa Niyamawali, 1991, hereinafter referred to

as 1991 Rules governed the fields.  It is, however, submitted

that although appellant was called to appear in written

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examination and interview but on discovering that he is not

eligible as per the requirement of the recruitment rule, the

respondent corrected the mistake on their part by not going

any further with the appointment of the appellant by rejecting

his candidature.

7. We have considered the submissions of the learned counsel

for the parties and perused the record.

8. The parties are at variance with regard to correct import

of the advertisement. The appellant’s case was that as per the

advertisement  the  graduation  in Psychology  was  the  minimum

qualification and qualification of L.T./B.T. B.Ed. were

independent qualification on fulfilling of which candidate was

qualified. Advertisement does not require graduate with

Psychology with L.T./B.T. B.Ed. to make candidate eligible.

Whereas the respondent’s case is that the candidate shall be

qualified only when he is both graduate with Psychology and

possesses L.T./B.T. B.Ed. The case of the respondent is that

although the appellant was issued admit card and called to

appear in the written and in interview but his appointment was

not issued since it was realized that he does not have

L.T./B.T. B.Ed. qualification.   In paragraph 4(Xiii) of the

counter affidavit it has been reiterated that even if there is

some ambiguity in the advertisement, the appointment has to be

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made as per the recruitment rules which in this case is 1991

Rules. It is useful to extract following as stated in

paragraph 4(Xiii) of the counter affidavit:

“4.(Xiii) That is further respectfully submitted that arguendo, even if it is conceded that there was some ambiguity in the advertisement, the petitioner herein cannot be allowed to misinterpret the same in his favour as it is trite that the appointment has to be made in accordance with the recruitment rules which in this case is the Janjatiya Vikas Sikchan Aur Kermchariverg Sewa Niyamawali, 1991. It is also humbly submitted that if there was any ambiguity in the requirements mentioned in the advertisement, it has to be read in consonance with the recruitment rules. ......... .......... .........

Therefore, keeping the abovesaid settled position of law in mind, it is most respectfully submitted by the respondent herein that though the petitioner herein was inadvertently issued the admit card for appearing in the written examination as well as called for the interview, the respondent authorities, on discovering that the petitioner herein was not eligible as per the requirements of the recruitment rules as he did not possess the requisite L.T./B.T./B.Ed as prescribed, rightly corrected the mistake on their part by not going any further with the appointment of the petitioner herein and rejected his candidature as such an appointment would be void.”

9. Learned single Judge took the view that the appellant

should have possessed the qualification of trained graduate

and since he does not possess the said qualification, his

claim has rightly been rejected. It is useful to quote the

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last portion of the judgment:

”...Accordingly the petitioner should have possessed the qualification of trained graduate and since he does not possess the said qualification, which is eligible for on the post of L.T.grade teacher, I am of the view that the claim for appointment on the post of L.T. grade teacher, has rightly rejected.

The petition is dismissed. No order as to cost.”

10. The Division Bench of the High Court made following

observations:  

”...The educational qualification for the post in question is that the candidate must be graduate with the subject of Psychology along with other essential qualifications  of being L.T./B.T./B.Ed. The condition of being B.Ed or being possessed L.T./B.T. certificates or B.Ed. degree is an essential qualification along with the condition of being graduate with the subject Psychology. If a candidate is not possessed of any of the aforesaid essential qualifications,  he/she shall not be  eligible for participating in selection nor can be appointed.

Under the relevant rules i.e. Janjatiya Vikas Sikchan Aur Kermchariverg Sewa Niyamawali, 1991 of which a reference has been made by the learned Single Judge also shows that qualifications  requires a  graduate  with the subject of Psychology, with L.T./B.T./B.Ed., as the case may be. ........ ......... .........

Be that as it may, in the advertisement in pursuance of which the appellant had applied the prescribed qualification was graduation with subject Psychology along with L.T./B.T./B.Ed. degree. That being so the appellant fully knew at the time of application that he mus possess the said essential

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qualifications as pronounced in the advertisement. In case he was aggrieved by description  of such  qualifications,  he could have been better advised to challenge the said advertisement event before applying but once he has applied in terms of the aforesaid advertisement without any protest he cannot take a turn and say that these conditions were illegally placed in the same.”

11. The appellant has brought on record both the advertisement

as well as 1991 rules. The advertisement has been filed as

Annexure A­1 along with I.A.No.2 of 2013. The advertisement

was issued in Hindi newspaper “Dainik Jagran” and photocopy of

first page of the newspaper is also annexed at page 24 of

Annexure A­1. The translated copy in   English has also been

attached at page 6. We are concerned with the post of

Psychologist in the present case. Hence, it is useful to refer

to the qualification prescribed for the aforesaid post.

12. The original advertisement being in vernacular Hindi, it

is relevant to note the said content of vernacular

advertisement which was to the following effect:

1 मननववजजननक 03

18सस 35 वरर

4500 ­ 7000

    मनननवजजन नवरय मम सनजतक/ एल.टट./ बट.टट. बट.एड.    । अधधमजनट अररतज :  1.  बययरन ऑफ़ सजइकनललजट,  इलजरबजद यज

      भजरत सरकजर दजरज मजनयतज पजप नकसट        अनय सससथज मम नडपलनमज इन गजइडमस

सजइकनललजट 2.      नरसदट मम कजयर कज जजन

13. The English translation of the advertisement at Page 6 of

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Annexure A­1 with regard to the post of Psychologist is as

follows:

1. Psychologist­ 03

18­35 years

4500­ 7000

Graduation in  Psychology/L.T./B.T.B.Ed in  the subject of Psychology. Preferential  Qualification:  1.Diploma in guidance  psychology from Bureau of  Psychology, Allahabad or  Government of India or from  other recognized  institutions,  2.Working experience in  Hindi

14. The careful reading of original advertisement which is in

vernacular language indicate that what was prescribed was, “In

Psychology subject graduate/L.T./B.T. B.Ed.”. Use of Stroke

between graduate and L.T./B.T. B.Ed. indicates that all were

alternate qualification. The advertisement cannot be read to

mean providing for graduate in Psychology with L.T./B.T. B.Ed.

as has been read by the High Court and contended by the

respondent.

15. The words  graduate/L.T./B.T.  B.Ed.  are  all  alternative

qualification which are prefixed with word “In subject of

Psychology”. A harmonious reading may mean that a person

graduate in subject of Psychology or L.T./B.T. B.Ed. with

Psychology is eligible. When the post is of Psychologist, both

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graduation with Psychology and training certification i.e.

L.T./B.T. B.Ed. have also to be with Psychology. The

respondents have wrongly interpreted the advertisement to mean

that the person should possess both graduate with Psychology

as well as L.T./B.T. B.Ed. which on the face of it does not

appear to be correct.

16. Present is a case where appellant was called to appear in

written examination and interview and his name was included in

the merit list. It was only at the time of verification of the

certificate he was denied the appointment on the ground that

he does not fulfill the qualification as advertised, whereas

he fulfilled the advertised qualification.

17. There is one more reason to accept the meaning of

advertisement as noticed above. In advertisement, with regard

to various qualifications, words “यज" (or) “सजथ" (with), "अथवज"

(either) and stroke ‘(/)’ have been used. The appointing

authority is well aware of the meaning of stroke ‘(/)’, word

“or”, “either” and “with” which has been frequently used in

the qualifications which is apparent from the advertisement

i.e. Annexure   A­1.   The Appointing Authority used word

'with'(सजथ), when it wanted both the qualifications together.

Wherever stroke '(/)' has been used it was used when either of

the qualifications were indicated.  The advertisement Annexure

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A­1 contains qualifications for various posts and in several

qualifications stroke (/) has been used.   A look into those

qualifications clearly indicate that stroke (/) was used in

the other qualifications denoting one or either qualification.

It is useful to extract some qualifications where stroke (/)

was used apart from qualification prescribed for the post of

Psychologist.  The use of stroke (/) in the qualifications at

Item No. 5 ­ Grah Mother, Item No. 6 – Karamshalal Prashikshak

Foundary Shop / Black Smith Shop, Item No.11 – Sewing Trainer,

Item No. 16 – Music Teacher   and Item No. 17 – Stitching

Trainer are extracted as below:­

5. Grah Mother  ­ 02

18­35 years

3200­4 900

Intermediate  examination passed  along with Home  Science. Essential  Qualification: two  years practical  experience of Grah  Mother in any  Institute/ Committee

6. Karamshalal  Prashikshak  Foundary  Shop / Black Smith Shop – 02

­do­ 4500­7 250

Intermediate  examination passed from U.P. Madhyamik  Education Council or a  Institution recognized  by the Government  equivalent thereto.   Certificate of G.S.T.S. for three years from  the concerned branch or Certificate of  G.I.T.I./ I.T.I. from

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concerned branch or  Diploma of Polytechnic. Essential  Qualification: Three  Years Industrial  experience after the  Certificate.  

11. Sewing  Trainer  (National  Baggers  Home) ­ 01

­do­  3050­4 590

Passed Intermediate or  equivalent thereto and  I.T.I. in concerned  Trade/ Apprentice  Certificate or Diploma.

16. Music  Teacher­ 03

­do­ 4000­6 000

Intermediate passed  from Music College or a Certificate/ Diploma  recognized by the  Government.  

17. Stitching  Trainer­01

­do­ ­do­ Intermediate passed or  equivalent thereto and  ITI in concerned Trade, Apprentice/ Certificate or Diploma.   Examination Fees  :General Category 60/­  Other Backward Class  40/­, Schedule  Caste/Schedule Tribe  25/­

A perusal of the above qualifications clearly indicated

that stroke (/) was used regarding qualifications, in

alternative, i.e., one or either.   In above view of the

matter, we are of the view that the use of stroke (/) between

Graduate / L.T. / B.T. B.Ed. were in the same line meaning

thereby one or either.  It is relevant to notice that before

the aforesaid qualifications, the words “in Psychology

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subject” has been used as prefix, which clearly means that all

the alternative qualifications were required to have with

Psychology subject i.e. Graduation with Psychology/L.T./B.T.

B.Ed. in the subject of Psychology.  Hence, all the three i.e.

Graduation, L.T., B.T. B.Ed. has to be in Psychology subject.

Those persons who have done L.T./B.T. B.Ed. with Psychology

subject are eligible like person graduated with Psychology,

which is the plain and simple meaning of the advertisement

which has been missed by the State as well as the High Court.

18. The Division Bench in support of its view has interpreted

the advertisement in the following manner:­

“.....Even otherwise, if the interpretation of the learned counsel for the appellant is taken as correct, it would mean that there will be a different set of candidates  namely,  one  who possess B.Ed. degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled for appointment.”  

The above view of the Division Bench that accepting the

interpretation of appellant would mean that there is different

set of candidates namely one who possess B.Ed. Degree with the

subject Psychology and the others who are not B.A. with

Psychology, but if they are B.Ed. or possess L.T./B.T.

certificates, they would be entitled for appointment. The

above view does not support the interpretation, which we have

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put on the qualifications mentioned for the Psychologist i.e.

Graduate L.T./B.T. B.Ed. were prefixed with the “in   the

subject of Psychology”.  Thus, there is no question of there

being different set of candidates.  All candidates, who have

Psychology as their subject of Graduation/L.T./B.T. B.Ed. were

eligible   for the post and they all form one class, i.e.

those, who have studied Psychology.   Thus, the view of the

High Court cannot be accepted.            

19. In the counter affidavit filed in this court also the said

qualifications are being read by the respondent as graduate in

Psychology with L.T./B.T. B.Ed. 1991 Rules have been filed as

Annexure P­1 along with the rejoinder affidavit of the

appellant. It is relevant to note that in Schedule to the

Rules, the post of Psychologist has been referred to at page

166; it is relevant to quote the qualification mentioned in

the Schedule to the 1991 Rules, which is to the following

effect:

S.No. Name of Post

No    Of   Post       Te   total  Per   mp           

Source of recrui t­ment

Eligib ility for Direct recrui tment  

Age Min.

Limit Max.

Pay­Scale

10. Psycho logist

4  4   8 Throug h the commis sion

M.A. in Psycho logy

21 32 515­15 ­590­1 8­626­ EB­18­

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direct ly

prefer ably B.Ed or diplom a from any recogn ized instit ution in teachi ng subjec t

68­20­ 780­Eb ­20­86 0(Befo re regist ration )

20. The above rules clearly indicate that qualification for

Psychologist is M.A. in Psychology. There is no other column

in which Psychologist can be read in the entire rule.   The

B.Ed. is a preferential qualification and essential

qualification is only M.A. in Psychology according to 1991

Rules. It is relevant to note that although learned Single

Judge has referred to 1991 Rules but he observed that 1991

rules lays down the qualification as trained graduate along

with L.T./B.T. B.Ed., the above observations of learned Single

Judge are not sustainable in view of the qualification as

prescribed in 1991 Rules as extracted above.

21. In the counter affidavit filed in this court by the state,

1991 rules have been accepted to be the relevant rules

regulating the recruitment as has been noted in the Paragraph

Xiii extracted above. The qualification prescribed in the

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Rules does not provide for L.T./B.T. B.Ed. as essential

qualification. Thus non­possession of L.T./B.T. B.Ed. does not

make him disqualified for the post as per Statutory Rules of

1991. Appellant is post­graduate in psychology and thus, also

fulfill the qualification prescribed in the 1991 Rules. The

respondent in counter affidavit had themselves come with the

case that the appointment has to be made in accordance with

the statutory rules. When under the statutory rules, 1991,

appellant fulfill the qualification; there is no occasion to

deny appointment to him.

22. Any part of the advertisement which is contrary to the

statutory rules has to give way to the statutory prescription.

Thus, looking to the qualification prescribed in the statutory

rules, appellant fulfills the qualification and after being

selected for the post denying appointment to him is arbitrary

and illegal. It is well settled that when there is variance in

the advertisement and in the statutory rules, it is statutory

rules which take precedence. In this context, reference is

made in judgment of this Court in the case of  Malik Mazhar

Sultan & Anr. Vs. U.P. Public Service Commission & Ors., 2006

(9) SCC 507.  Paragraph 21 of the judgment lays down above

proposition which is to the following effect:

"21. The present controversy has arisen as the advertisement issued by PSC stated that the

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candidates who were within the age on 01.07.2001 and 01.07.2002 shall be treated within age for the examination.  Undoubtedly, the excluded candidates were of eligible age as per the advertisements but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only of permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.”

23. It has also come on the record that although the post of

Psychologist was declared as dead cadre by the Government

Order dated 09.05.2008, but the   posts were subsequently

revived by another Government Order dated 17.08.2010.

Reference of 2009 Rules, namely, Uttar Pradesh Social Welfare

Department of Teacher Service Rule, 2009, has been made which

may have no relevance with regard to issue in the present case

since the appointment in the present case was made in

pursuance of the 1991 Rules and advertisement was dated

30.08.2001. The appellant after being selected for the post of

Psychologist was illegally denied issuance of appointment

letter on wrong interpretation of the advertisement and the

rules, hence, the appellant has made out a case for issuing a

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direction to appoint him on the post of Psychologist.  

24. We, thus, direct the respondents to issue an appointment

order to the appellant in pursuance of his selection against

the advertisement dated 30.08.2001 on the post of Psychologist

within a period of two months from the date, copy of this

Order is produced before the respondents.  

25. The judgments of the High Court are set aside and the

appeals are allowed accordingly.

..........................J. ( A.K. SIKRI )

..........................J.      ( ASHOK BHUSHAN )

NEW DELHI, JANUARY 31,2018.