Patna High Court
Arvind Kumar vs The State Of Bihar on 28 January, 2025
Author: Ashutosh Kumar
Bench: Partha Sarthy, Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7714 of 2023
======================================================
1. Appu Kumar S/o Bahadur Choudhary, Village-Sahjanand Saraswati Path,
West Patel Nagar, Near West P.T.C. Colony, P.O.-Shashtri Nagar, P.S.-
Shashtri Nagar, District-Patna (Bihar).
2. Manohar Kumar, S/o Jailal Paswan, Adress-Fakira Tower Flat No. 609
B/Block, Bibiganj, P.s.-Sadar, P.O.-Bhagwanpur, District-Muzaffarpur
(Bihar).
3. Amit Kumar, S/o Deoraj Rajak, Village-Hasanpur Bagar, P.O.-Hasanpur
Bagar, P.S.-Nawakothi, District-Begusarai (Bihar).
4. Sachin Kumar Sanju, S/o Birendra Kumar Mishra, R/o Village-Shivpuri,
P.S.-Shastrinagar, P.O.-Shastrinagar, District-Patna, Bihar.
5. Rajesh Kumar, S/o Jaynarayan Sah, Village-Harpur, P.O.-Bhulli, P.S.
Piprahi, District-Sheohar (Bihar).
6. Roshan Kumar, S/o Tilakdhari Biswas, Village-Raj Nagar Line Bazar, P.O.-
Purnia East, P.S. Khazanchi Hat, District-Purnia (Bihar).
7. Rishi Ranjan, S/o Prawesh Kumar Saha, Village Ward No. 10, Bahadurganj,
P.O.-Bahadurganj, P.S. Bahadurganj, District-Kishanganj (Bihar).
8. Aman Kumar Bharti, S/o Uday Kumar Mandal, Adress-R/o Village-Jounia,
P.s. Pranpur, P.O.-Bastaul, District-Katihar (Bihar).
9. Vijay Kumar Bhaskar, S/o Mohan Sahani, Village Semra Urf Chak
Sirikanth, P.O.-Srikant, P.S.-Piar, Distirct-Muzaffarpur (Bihar).
10. Manish Ranjan, S/o Rajan Dhari Singh, Residing at Ram Shyam Apartment,
Flat no. 304, Ashok Nagar, Road NO.11, Kankarbagh, P.s.-Kankarbagh,
District-Patna (Bihar).
11. Rewati Raman, S/o Ashok Kumar Roy, R/o Village-Madhura North, Ward
No. -08, P.S.-Narpatganj, P.O.-Narpatganj, District-Araria (Bihar).
12. Maharaja Vikramaditya S/o Jay Prakash Narayan Singh, R/o Village-Amber,
P.S.-Biharsharif, P.O.-Biharsharif, District Nalanda (Bihar).
13. Md. Imtiyaj Alam, S/o Abdul Majid, R/o Village-Madhura South, P.S.-
Narpatganj, P.O.-Narpatganj, District-Araria (Bihar).
14. Sujeet Kumar Mehta, S/o Bidyanand Mehta, R/o Village-Simraha, P.S.-
Simraha, P.O.-Simraha, District-Araria (Bihar).
15. Kumar Saurabh, S/o Kamleshwar Prasad Das, R/o Village-Forbesganj, P.S.-
Forbesganj, P.O.-Forbesganj, District-Araria (Bihar).
16. Vir Bahadur Singh, S/o Janardhan Prasad Singh, R/o Village-Kachari Road,
P.S.-Biharsharif, P.O.-Biharsharif, District-Nalanda (Bihar).
17. Rahul Kumar Yadav, S/o Shiv Prasad Yadav, R/o Village-Barmasia, P.S. and
P.O.-Barmasia, District-Katihar (Bihar).
18. Swami Dev Prasad Kanchan, S/o Ram Prasad, R/o Village-Binda, P.S.-
Handia, P.O.-Asepur, District-Prayagraj (Uttar Pradesh).
19. Anil Kumar Gautam, Late Rajendra Prasad, R/o Chitaipur, P.S.-Lanka, P.O.
Lanka, District-Varanasi (Uttar Pradesh).
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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20. Anand Kumar, S/o Sunil Kumar, R/o Village-Jattichak, P.S.-Masaurhi, P.O.
Masaurhi, District-Patna (Bihar).
21. Amit Kumar, S/o Birendra Kumar, R/o Village-Kumharar, PS-Agamkuan,
P.O.-H.P. Colony, District-Patna (Bihar).
22. Md. Tanwir Alam, S/o Md. Ilyas Ansari, R/o Village-Sapta, P.S.-Rahika,
P.O.-Sapta, District-Madhubani (Bihar).
23. Ravi Kumar, S/o Subhash Prasad, Village-Near K.B. Jha College Katihar,
P.S.-Katihar, P.O. Katihar, District Katihar (Bihar).
24. Almas Tasuar, S/o Ehtasham Uddin, R/o village-Aliganj, P.S. Chandauti,
P.O.-Karimganj, District-Gaya (Bihar).
25. Nityanand S/o Radheshyam Choudhary, R/o Village-Gandhinagar, P.S.-
Aurangabadh, P.O.-Aurangabad, District Aurangabad (Bihar).
26. Alok Anand S/o Dhirendra Prasad, R/o Village Babhanbigha, P.s.-Barbigha,
P.O.-Barbigha, District-Sheikhpura (Bihar).
27. Remekwal Yadav, S/o Satyendra Yadav, R/o Village Bagha Kusmar, P.S.-
Khutauna, P.O.-Bagha Kushmar, District-Madhubani (Bihar).
28. Ashish Yadav, S/o Sanjeev Kumar Yadav, R/o Village-Firozabad, P.S.-
Firozabad, P.O.-Shikohabad, District-Firozabad (Uttar Pradesh).
29. Radhe Shyam Sah, S/o Vishnu Deo Sah, R/o Village-Kajra, P.S.-Mirganj,
P.O.-Eangpura, District-Purnea (Bihar).
30. Satish Kumar, S/o Ram Naresh Prasad, R/o Village-Jitu Bigha, P.S. Ghosi,
P.O. Bandhuganj, District Jehanabad (Bihar).
31. Raja Patel Son of Surendra Chaudhary, Resident of New Bypass, Bridge,
Chini Mill, P.s. Buxar, District Buxar (Bihar).
32. Raju Kumar, S/o Nageshwar Chaudhary, R/o Vilage-Saraiya, P.S.
Bakhatiyarpur, P.O.-Sirsi, District-Patna (Bihar).
33. Ratnesh Kumar Chaubey, S/o Ram Pradhan Chaubey, R/o Village-
Robertsganj, P.S.-Robetsganj, P.O.-Robetsganj, District-Sonebhadra (Uttar
Pradesh).
34. Kaushlendra Kumar, S/o Kapil Deo Prasad, Village-Sonwarsha, P.S.-
Warsaliganj, P.O.-Chakway, District-Nawada, Pin-805130 (Bihar).
35. Shashi Kumar Yadav, S/o Satya Narayan Yadav, R/o Village Jatahi, P.S.-
Khutauna, P.O.-Tengrar, District-Madhubani (Bihar).
36. Ehteram Ahmad Karimi, S/o Ishtiyaque Ahmad, Village-Millat Colony
Ward-11 Near Gurudwara, P.O.-Madhubani, P.S.-Madhubani, District-
Madhubani (Bihar).
37. Rohit Jha, S/o Bharat Bhushan Jha, R/o Village-Narayanpur, P.S.-
Bhawanipur, District-Bhagalpur (Bihar).
38. Hem Narayan Chaudhary, S/o Jay Narayan Chaudhary, R/o village
Karahiya, P.S.-Rajnagar, P.O. -Balha, District-Madhubani (Bihar).
39. Md. Iftekar Alam, S/o Sajmmuddin, Village-Mahimachak, P.O.-Channo, P.s.
Rasalpur, District-Bhagalpur (Bihar).
40. Vivek Mishra, S/o Birendra Mishra, Village-Bhringichak, P.O.-Semariya,
P.S.-Kateya, District-Gopalganj (Bihar).
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41. Brajesh Kumar, S/o Kumar Kishor Yadav, Vill-Surmaha Durga Sthan, Ward
No. 8, P.O.-Kishanpur, P.S. Sour Bazaar, District-Saharsa (Bihar).
42. Rahul Kumar, S/o Upendra Prasad Chaurasiya, Resident of Village and Post-
Prataptand, P.S. Bhagwanpur, District-Vaishali (Bihar).
43. Rajesh Ranjan, S/o Sitaram mandal, Village-Rampur Ward No. 08, P.O.-
Rajpur, P.S.-Pipra, District-Supaul (Bihar).
44. Madhur Kumar, S/o Laxmi Prasad Singh, Village-Maa Kalhyani Mandir
Ward No. 03, P.O.-Sarbela, P.s. Salkhuwa, District-Saharsa (Bihar).
45. Govind Kumar Gaurav, S/o Vishundeo Prasad Bhagat, Resident of Village-
Amha, Post-Amha, P.s.-Supaul, District Supaul (Bihar).
46. Rakesh Kumar Yadav, S/o Yogendra Yadav, Village-Gorari, P.O.-Shadiabad,
P.S.-Shadiabad, District-Ghazipur (Uttar Pradesh)
47. Ravi Shankar Vikas, Son of Ram Narayan Yadav, Resident of Village-
Kabrichak, P.S. Muffasil, District-Darbhanga Bihar.
48. Miltan Kumar Miltam, S/o Laxman Prasad Yadav, Village-Musharnia Ward
No-01, P.O.-Khajuri, P.s. Sour Bazar, District Saharsa (Bihar).
49. Rahul Kumar Singh, Son of Brij Bihari Singh, Resident of Near Sita Chowk,
Mohalla-Baghmali Gacchi, P.s. Haipur, District Vaishali (Bihar).
50. Subhramani, Son of Dinesh Singh, Resident of Niranjan Swami Apartment,
Ara Garden Road, Manglam Vihar Colony, P.S.-B.V. College, District-Patna
(Bihar).
51. Ram Awadh Singh, S/o Rohin Singh, R/o Village-Londa, P.O.-Adhaura, P.S.
Lohra, District Kaimur (Bihar).
52. Sudhir Kumar, S/o Anil Prasad Chauhan, R/o village-Karahansi, P.S.-
Natwar, P.O.-Kaharansi, District-Rohtas (Bihar).
53. Anjani Kumar Gunjan, S/o Subodh Kumar, R/o Village-10a/62 avc Yojna 3,
P.S.-Jhusi, P.O.-Jhusi, District-Prayagraj (Uttar Pradesh).
54. Vinay Kumar Singh, S/o Yadubansh Singh, R/o Village-Bealundi, P.S.
Mohania, P.O.-Bealundi, District Kaimur (Bihar).
55. Vikash Kumar, S/o Sunit Kumar Singh, Village-Jagdishpur, P.O. Surajgarha,
P.S. Surajgarha, District-Lakhisarai (Bihar).
56. Praveen Kumar S/o Bhagirath Sharma, Village-R.B. Travels, K.S.S. College,
P.O.-Lakhisarai, P.S. Lakhisarai District-Lakhisarai (Bihar).
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Additional Chief Secretary, General Administrative Department,
Government of Bihar, Patna.
3. The Principal Secretary, Water Resources Department, Government of Bihar.
4. Bihar Polytechnic Association with its Office Situated at B Block, 103,
Vidhyak Parishad, Daroga Prasad Rai, District- Patna through its General
Secretary Ramesh Kumar, Son of Lala Roy, Resident of Dakshin Chak, P.O.
and P.S. Athmalgola, District-Patna, Pin Code- 803211.
5. Prabhas Kumar, Son of Prabhu Kumar Pandit, Resident of Near Middil
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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School, Gohumani, District- Madhubani, Pin code- 852128.
6. Prashant Kumar, Son of Ram Prit Yadav, Resident of Rastriya Ganj, P.O. and
P.S.- Phulwari Sharif, District- Patna, Pin Code- 801505.
7. Subodh Kumar, Son of Hari Narayan Yadav, Resident of Ward No. 8, Jaraila,
Thalha, District- Supaul, Pin Code- 8520139.
8. Sumit Kumar, Son of Madho Mahto, Resident of Makuna Ward No. 29,
District-Lakhisarai, Pin code- 811311.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 8423 of 2023
======================================================
1. Arvind Kumar Son of Ramnandan Prasad, Resident of Madan Chaudary
Lodge, Near Shiv Mandir, P.S- Rampur, District - Gaya - 800023
2. Ritesh Kumar Mantu S/O-Narendra Tiwari, house No-55, Road No-6, Near
Gandhi Murti, East Patel Nagar, Phulwari, PS- Shastri Nagar, Dist - patna
800023.
3. Uttam Singh Yadav S/O-Sidhnath SinghYadav, Mustafabad, Near A P
Colony, Beside Janki Niwas, PS- Rampur, Dist- Gaya, Bihar-823001.
4. Nikhilesh Gaurav S/O-Neel Mani, kamaldah marg maharani colony, Shitla
Mandir, Ilahi Bag, PS- By pass police station, Dist- Patna, Bihar- 80000.
5. Hemant Kumar S/O-Arvind Tiwari, Brahmchari Colony, Police Line,
Rampur, Chiraiatanr, PS- Rampur, Dist- Gaya, Bihar-823001.
6. Gaurav Kumar S/O-Ajay Singh, Mahua, ward no-12, Arraha, PS Ghailadh,
dist- Madhepura, Bihar-852121.
7. Rajiv Ranjan S/O-Shyam Sundar Prasad Modi, Khaira, PS- khaira, Dist-
Jamui, Bihar- 811317.
8. Deepak Kumar S/O-Ramanand Prasad, Village-Bhatu Bigha, Post and Police
PS.- Ben, dist- Nalanda, Bihar-803114.
9. Uttam Kumar S/O-Parmanand Prasad, Mera, Khanpura, PS - khrimore, dist -
Patna, Bihar- 801110.
10. Avishek Kumar Parashar S/O-0m Prakash Mishra, Ward-28, Lohiyanagar,
Panhans, PS - Lohiyanagar O.P, Dist- Begusarai, Bihar-851218.
11. Ravish Kumar S/O-Yugul Ram, Ward No-12, Matiyariya, Harnatanr, PS
Naurangiya Dist- West Champaran, Bihar-845105.
12. Sumit Kumar S/O-Rajendra Prasad, Satsang Nagar, Ward No 12, Daudnagar,
PS - Daudnagar, Dist -Aurangabad, Bihar-824143.
13. Ravi Adarsh S/O-Ravi Shankar, Add Behand Gramin Bank, Mahavir Nagar
70, Fit Road, Phulwari, PS Shastri Nagar dist - Patna, Anisabad, Bihar-
800002.
14. Prabhanjan Kumar S/O-Ram Narayan Prasad, Village and Post- Kaila, PS -
Nagarnausa, Dist - Nalanda, Bihar-803108.
15. Ravi Kumar Mandal S/O-Dilip Mandal, Dhiropatti, PS- Ashok paper mill,
dist - Darbhanga, Bihar-847101.
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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16. Punit Kumar S/O-Bablu Sah, Ward No-12 N P Amarapur, Post and Police
Station- Amarapur, PS - Amarapur, dist- Banka, Bihar-813101.
... ... Petitioner/s
Versus
1. The State of Bihar Chief Secretary, Govt. of Bihar, Patna.
2. The Additional Chief Secretary, Department, Govt. of Bihar, Patna.
3. The Additional Chief Secretary, Water Resources Department, Govt. of
Bihar, Patna.
4. The Additional Chief Secretary, Road Construction Department, Govt. of
Bihar, Patna.
5. The Additional Chief Secretary, Building Construction Department, Govt. of
Patna.
6. The Additional Chief Secretary, Rural Works Department, Govt. of Bihar,
Patna.
7. The Additional Chief Secretary, Public Health and Engineering Department,
Govt. of Bihar, Patna.
8. The Additional Chief Secretary, Urban Development and Housing
Department, Govt. of Bihar, Patna.
9. The Secretary, Technical Education Commission, Patna.
10. The Secretary, All India Council of Technical Education (AICTE).
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 7714 of 2023)
For the Petitioner/s : Mrs. Nivedita Nirvikar, Sr. Advocate
Ms. Supragya, Advocate
Mr. Arya Achint, Advocate
Mrs. Shashi Priya, Advocate
For the State : Mr. P.K. Shahi, A.G.
For the Interveners : Mr. Abhinav Srivastava, Sr. Advocate
: Ms. Shrishti Singh, Advocate
Mr. Pranav Kumar, Advocate
(In Civil Writ Jurisdiction Case No. 8423 of 2023)
For the Petitioner/s : Mrs. Nivedita Nirvikar, Sr. Advocate
Mr. Kumar Prabhakar, Advocate
Mr. Ranjeet Kumar, Advocate
Mr. Shikhar Mani, Advocate
Mr. Rishabh Gupta, Advocate
Mr. Rajish Prakash, Advocate
Ms. Lakshmi Kumari, Advocate
Mr. Kanishk Kaustubh, Advocate
For the State : Mr. P.K. Shahi, A.G.
For the BTSC : Mr. Nilesh Kumar, Advocate
======================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date : 28-01-2025
1. The petitioners, all of whom have qualification
of B.Tech (Civil) from Institutions recognized by All
India Council For Technical Education (AICTE) have
challenged the constitutionality of Rule 8(1)(ii) and
(iii) of the Bihar Water Resource Department
Subordinate Engineering (Civil) Cadre Recruitment
Rules -2023 (to be referred to as “2023 rules”
hereinafter) which has prescribed diploma or
equivalent in Civil /Mechanical/Electrical
engineering as the qualification for appointment to
the post of Junior Engineer (Civil) on the ground of
the same being arbitrary, irrational and
unconstitutional.
2. The issues raised here are not new and have
been discussed in many of the judgments of this
Court as also of the Supreme Court.
3. To have a clear understanding of the nature of
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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challenge by the petitioners, it would, albeit, be
necessary to briefly refer to the earlier rule in this
regard.
4. The Bihar Water Resource Department
Subordinate Engineering (Civil) Cadre Recruitment
Rules, 2015 provided that for Junior Engineer
(Civil), the qualification would be diploma or
equivalent qualification holder in Civil Engineering.
The technical qualification/eligibility for selection
was (a) diploma or equivalent qualification in Civil
Engineering issued by the institutes recognized by
the AICTE which has obtained recognition from the
State Technical Board or; (b) non distance mode
diploma in Civil Engineering or equivalent
qualification issued by the deemed University under
the UGC Act.
5. Prior to the coming to this Rule, in the year
2014, Bihar Rural Development Society, Rural
Development Department, Bihar, Patna had invited
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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applications for the post of Junior Engineer (Civil)
on contractual basis stipulating that persons having
degree/diploma from recognized Institutions would
be eligible for the post of Junior Engineer (Civil). It
was also stipulated in the aforenoted advertisement
that for the post of Junior Engineer (Civil), persons
having degree qualification would be granted twenty
bonus marks.
6. Under the 2015 Rules, referred to above, a
separate cadre of Junior Engineers was created
under the administrative control of Water Resources
Department. The 2015 Rules were amended and
certain provisions related to technical qualification
for selection as well as procedure for selection and
preparation of merit list were changed vide Bihar
Water Resources Department Subordinate
Engineering (Civil) Cadre Recruitment
(Amendment) Rules, 2017 (to be referred to as
“2017 Rules” hereinafter). The amended rules of
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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2017 clearly stipulated that the technical
qualification / eligibility for selection to the post of
Junior Engineer (Civil) would be: (a) diplma holders
in Civil Engineering from the institutes recognized
by AICTE and also; (b) diploma in Civil Engineering
by non-distance mode diploma from deemed
University established under UGC Act, provided that
their syllabus of diploma in Civil Engineering has
been sanctioned by the UGC. The procedure for
selection also was stipulated.
7. Under the aforenoted rules of 2017, an
Advertisement No. 1 of 2019 dated 08.03.2019
was issued by Bihar Technical Service Commission,
Patna, inviting applications for regular appointments
to the post of Junior Engineer
(Civil/Mechanical/Electrical) in different
departments of the Govt. of Bihar. The technical
qualification / eligibility was in accordance with the
amended rules of 2017, namely, that only
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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candidates holding diploma in Civil Engineering from
institutions recognized by AICTE /University would
be eligible for the post of Junior Engineer (Civil).
This technical qualification prescription prevented
candidates possessing higher qualification like
degree in Civil Engineering in the discipline to apply
for and be considered for appointment. Those
desirous candidates, having higher qualification of
degree in Civil Engineering who were not permitted
to apply against the said advertisement, challenged
the advertisement as also the validity of the rule
2015 and the amended rule of 2017 vide CWJC No.
7761 of 2022.
8. During the pendency of the aforenoted writ
petition, the rules of 2015 and amended rule of
2017 were repealed and new rule vide Bihar
Subordinate Engineering (Civil/ Mechanial/
Electrical) Service Rules, 2023 was brought out.
9. The Advertisement no. 1/19 was withdraw. In
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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the aforesaid 2023 rules, the qualification for
appointment in the cadre of Junior Engineer (Civil)
has been fixed as (a) diploma holder in Civil,
Mechanical and Electrical Engineering from the
institutes recognized by AICTE through non-
distance mode regular course or diploma holder of
equivalent qualification (equivalent syllabus under
the schedule title measure disciplines, their
corresponding courses and relevant / appropriate
branch of diploma in Engineering and Technology of
approval process handbook issued by the AICTE in
the relevant subject or diploma in Civil, Mechanical
and Electrical Engineering or equivalent qualification
through non-distance mode from a University or
deemed University established under the UGC Act.
10. Rule -9 thereof provides the procedure
for selection, naming Bihar Technical Service
Commission as the body which would carry out the
selection and recruitment process.
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11. Before these rules were gazetted in exercise
of the powers conferred under Article 309 of the
Constitution of India, a high level committee had
been held regarding framing of such rules wherein
recommendations were made with respect to the
eligibility criteria and the mode of selection in
Subordinate Engineering Services. In the light of
the aforenoted recommendations, the eligibility
criteria with respect to qualification were
incorporated in the draft rules. The draft rules were
placed before the State Cabinet which had accorded
its sanction, whereafter rules were duly notified and
published in the gazette.
12. The petitioners have challenged the
validity of such rules on the ground that the normal
rule would be that the candidates with higher
qualification ought to be deemed to be fulfilling the
lesser qualification prescribed for the post, if the
higher qualification is in the same channel/line.
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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13. Reading the technical qualification prescribed
in the rules narrowly would lead to shutting out
eligible candidates with higher degree of
engineering in the same line as of diploma in Civil
Engineering.
14. Fixing of such eligibility qualification, it was
contended, was arbitrary, irrational and
unconstitutional because it excludes from
consideration for appointment such persons having
higher degree in the same line of learning. Fixing of
such eligibility criteria has no rationale or objective
and is based on no intelligible differentia.
Therefore, the prayer of the petitioners, in the
alternative, is to read down the relevant provisions
in rules of 2023 to mean and include that
candidates holding degree qualification would also
be eligible for the post of Junior Engineer (Civil) and
allow them and others, similarly situated, to
participate in any future appointments of Junior
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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Engineers as a degree-holder candidate and also
provide weightage.
15. The basis for such contentions are that a
degree in Civil Engineering is technically a higher
qualification than a diploma; prescription of
minimum qualification would not debar candidates
possessing higher qualification in the discipline to
apply and be considered; and there being no
purpose behind such a sub-classification without
any basis.
16. The contentions are sought to be fortified with
reference to judgments of the Supreme Court in
Jyoti K.K. & Ors. Vs. Kerala Public Service
Commission; (2010) 15 SCC 596 and Puneet
Sharma and Others vs. Himachal Pradesh
Electricity Board and Others; (2021) 16 SCC
340.
17. In Jyoti K.K. (supra) while inviting
applications for selection to the post of Sub-
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Engineers Electrical in the Kerala State Electricity
Board, the Kerala Public Service Commission had
issued notification providing diploma in Electrical
Engineering of a recognized institution after three
years course of study as the qualification for the
post. The B.Tech degree holders in Electrical
Engineering and persons holding bachelor’s degree
in Electrical Engineering were ousted from the zone
of consideration. The Kerala Public Service
Commission had contended that graduates in
engineering and persons possessing other
qualification than what was prescribed in the
advertisement could not have been taken as a
higher qualification as those were not equivalent
qualification prescribed for that post and the
persons who possessed higher qualifications could
only be considered in cases where they acquired
such higher qualification after acquiring the
prescribed qualification. However, a provision in the
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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Kerala State and Subordinate Services Rules 1956
provided that notwithstanding anything contained in
the rules, higher qualifications which pre-supposes
the acquisition of the lower qualification prescribed
for the post would also be sufficient for the post.
The Kerala High Court had rejected the contentions
of the applicants but the Supreme Court had held
that in the event of the Government holding the
view that only diploma-holders should have applied
for the post of Sub-Engineers but not all those who
possessed higher qualification, either the rule in
question should have excluded the candidates who
possessed higher qualification or the position
should have been made clear that degree-holders
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 the
higher qualifications in the same faculty, it was clear
that the rule was not understood in an appropriate
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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manner. The order of the Hon’ble High Court,
therefore, was not sustained and it was found that
persons with higher qualification also would be
eligible. However, since the diploma holders had
already been selected by the Kerala Public Service
Commission, the Supreme Court chose not to
disturb such appointments but directed the State to
consider the case of eligible degree-holders against
existing vacancies.
18. The aforesaid judgment appears to have been
primarily based on a provision of the rules which
provided that notwithstanding anything contained in
any rules or special rules or qualifications
recognized by executive orders or standing orders
of the Govt. as equivalent to a qualification specified
for a post in the special rules, such of those higher
qualifications would pre-suppose the acquisition of
the lower qualification prescribed for the post as
that also shall be sufficient.
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19. The petitioners contend that if at all the Govt.
was of the view that only diploma holders would be
eligible for the post, that should have been clarified
in the rules itself, as a plain reading of the rules
would mean normally that diploma in the concerned
trade would be the minimum qualification which will
not prohibit persons with higher qualification in the
same channel of learning.
20. The other judgment referred to by the
petitioners, namely, Puneet Sharma (supra) was
also with respect to the appointment to the post of
Junior Engineer (Electrical) by the Himachal
Pradesh Electricity Board Ltd.
21. The Supreme Court in this instance was
confronted with the issue whether a degree in
Electrical Engineering /Electrical and Electronics
Engineering is a technically higher qualification than
a diploma in that discipline and whether degree-
holders would be eligible for appointment to the
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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post of Junior Engineers (Electrical) under the
relevant recruitment rules.
22. The minimum essential qualification provided
for recruitment to the post of Junior Engineer
( Electrical ) there was matriculation with diploma in
Electrical/ Electronics / Electronics and
Communication/ Computer Science from the
recognized Institutions /Board/ University duly
recognized by the Central or State Govt.
23. The degree-holders in the discipline had also
applied for the post but their final results were not
declared. They had approached the High Court of
Himachal Pradesh in writ proceedings claiming that
since they possessed higher educational
qualification than the prescribed minimum (and
advertised) qualifications, they could not be denied
consideration.
24. The diploma-holders had opposed that claim
and had argued that the qualifications possessed by
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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the degree-holders was neither higher nor to be
considered in view of the Recruitment Rules as also
on the basis of the advertisement issued for the
purpose by the Himachal Pradesh Staff Selection
Commission.
25. On behalf of the degree-holders, it was
contended that in the event of minimum
qualification being prescribed without any bar
preventing appointment of degree holders to the
post, diploma had to be considered as only a
minimum requirement, especially in view of the
rules for appointment to higher promotional post of
Assistant Engineers Electrical providing for 5%
quota for those who possessed degree at the time
of their appointment as Junior Engineer Electrical
and 5% separately for those who would acquire the
degree during their service as Junior Engineer
Electrical after their conformation. The minimum
qualification prescribed would definitely entitle an
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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employer to choose a person with higher
qualification as “minimum” provides a cut-off filter
for the same and does not debar recruitment of
candidates having higher qualification.
26. The Himachal Pradesh State Electricity Board
had supported the case of the degree-holders and
had argued that the Rule in question ought to be
interpreted and applied to permit degree-holders a
chance at selection. Not doing so would amount to
excluding better qualified persons and to rob the
employer of the chance of choosing a better
qualified candidate.
27. It was also contended on behalf of the State
Electricity Board that it is the inherent right of the
employer to seek out better qualified individuals for
public appointment and equivalence of qualification
is not a matter for the Courts to determine.
28. Thus, the decision of the High Court in
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allowing the claim of the diploma-holders holding
that a degree is a not better qualification than a
diploma without any expert view was contrary to the
settled law.
29. The Supreme Court while deciding the issue,
referred to the judgment in P.M. Latha vs. State
of Kerela, 2003 (3) SCC 541. The issue in P.M.
Latha (supra) was whether the prescribed and
advertised qualification of Trained Teacher’s
Certificate (TTC) included persons who were having
B-Ed degrees. The Supreme Court had held that B-
Ed qualification could not be considered as a higher
qualification than TTC and that the TTC qualification
was given to teachers especially trained to teach
small children of primary classes, whereas those
with B-Ed were trained to impart education to
students of higher classes.
30. Similar view was expressed in Yogesh
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Kumar vs. State (NCT of Delhi) 2003 (3) SCC
548.
31. The Supreme Court had also referred to Jyoti
K.K. (supra) and had noted that the decision
therein was based on a provision in the rule which
clarified that those with higher qualification would
be deemed to have acquired the lower qualification
prescribed for the post and that would be sufficient
for eligibility.
32. Another decision which was considered by the
Supreme Court in this instance was State of
Punjab vs. Anita; 2015 (2) SCC 170. In that
case also the minimum qualification prescribed for
JBT teachers was two years Junior Basic Teachers
Training. It was held that those with M.Sc, B.Ed and
M.A qualifications were ineligible, looking at the
nature of the job which was of teaching primary
classes.
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33. In all these cases, a distinction had been made
with the facts in Jyoti (supra), as in Jyoti the
Appointing Authority had the option of considering
appointment of persons with higher qualifications.
34. The next case referred to in this judgment
(Puneet Sharma) was Zahoor Ahmad Rather vs.
Imtiyaz Ahmad, 2019 (2) SCC 404. In that
case, the post in question was Technician-III in the
Power Development Department in the State of
Jammu & Kashmir. The relevant stipulation
regarding qualification was matriculation with ITI in
the relevant trade. In that case, the appellants had
held diploma in Electrical Engineering but they were
disqualified. The Supreme Court adumbrated that
while prescribing the qualifications for a post, the
State as an employer bears in mind several features
including the nature of the job; the aptitudes
requisite for the official discharge of duties; the
functionality of a qualification and the content of the
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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course of studies which leads up to the acquisition
of qualification. The State is entrusted with the
authority to assess the needs of the Public Services.
Exigencies of administration falls within the domain
of administrative decision-making. The State is
perfectly entitled as a Public Employer to take into
account social perspectives requiring creation of job
opportunities across the societal structure, which
would essentially fall in the domain of policy
matters. Judicial review must tread warily.
35. It was in this context, that in Zahoor Ahmad
Rather (supra), decision in Jyoti K.K. (supra) was
understood especially in the context of a special
statutory rule under which the holding of a higher
qualification pre-supposed the acquisition of a lower
qualification, which was considered to be sufficient
for the post.
36. After having gone through all the afore-noted
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judgments, the Supreme Court in Puneet Sharma
and others (supra), referred to above, examined
the Rules especially the sub-quotas for 5 percent of
the candidates who would be diploma holders who
would acquire degree qualification during service as
Junior Engineers and 5 percent for those
candidates, who would acquire degrees before
joining as Junior Engineers.
37. It was thus, read that the rule making
authority had in mind that degree holders too would
compete for the position of Junior Engineers as
individuals holding equivalent or higher
qualification.
38. The Supreme Court noted that if such
interpretation were not given, there would be no
meaning in the 5 percent of sub-quota set apart for
those who were degree holders before joining as
Junior Engineers in terms of the extant Recruitment
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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Rules.
39. The Supreme Court also took note of the
latest amendment in the concerned rules clarifying
that even for the post of Junior Engineers, those
individuals holding higher qualification would be
eligible to compete. Though, the amending rules
were brought into force prospectively but since they
were only clarificatory, it was held that they would
apply to the recruitment which was the subject
matter of the controversy from before.
40. While saying so, the Supreme Court relied on
Zile Singh vs. State of Haryana, 2004 (8)
SCC 1; Vijay Vs. State of Maharashtra, 2006
(6) SCC 289 and Manish Kumar vs. Union of
India, 2021 (5) SCC 1.
41. The proposition was summarized as follows:-
“Though it is a cardinal principle of
Construction that statute operates
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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necessarily intendment made
retrospective (Nova Constitutio futuris
formam imponere debet non
praeteritis)”.
42. However, the presumption against
retrospectivity of statute could be rebutted by
necessary implication especially in a case where the
new law is made to cure an acknowledged evil or
benefit of community as a whole. Such presumption
against retrospective operation is not applicable to
declaratory statues. If a new Act is to explain an
earlier Act, it would be rendered nugatory unless
construed retrospectively. Any clarificatory
amendment will have retrospective effect unless the
intendment is otherwise. Thus, the claim of the
degree holders was allowed on account of
distinguishing the case of P.M. Latha, Yogesh
Kumar and Anita (supra) as also the amendment
in the Rules brought in to clear all doubts and
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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controversies regarding the right of the employer to
choose persons with higher qualification.
43. This does not necessarily mean that every
higher qualification would subsume a lower
qualification, if it is not clear that the higher
qualification is in the same channel or line of
learning.
44. Fortified with these reasons, the State as also
the intervenors (diploma-holders) have canvassed
that qualification of B-Tech/B.E. (Civil) from
institutions recognized by AICTE is a Bachelor’s
degree which is awarded to the candidates who
pursue Engineering Courses from institutions having
recognition of the AICTE after passing the
intermediate/ +2 Examination conducted by the
concerned Board; whereas for qualification of
diploma, the candidates pursue such course on the
basis of their completing matriculation/10th
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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qualification and take admission in diploma courses
of approved duration in accordance with the
Regulations framed by the Regulatory Body
including the AICTE and the concerned
Government.
45. So far as the syllabus of B-Tech/B.E. is
concerned, the same is completely different and
distinct from that of diploma course offered in
different disciplines of engineering and thus the
qualification of B-Tech/B.E. cannot be considered to
be in line with diploma qualification in any given
discipline and it cannot be considered to be a higher
qualification. Subsuming a qualification of diploma
in absence of any basis to demonstrate that the
nature of courses pursued in diploma are
necessarily included in B-Tech, B.E. courses
pursued by candidates possessing the qualification
in B-Tech, B.E. and Civil Engineering, is not
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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permissible.
46. It was also argued that taking note of the
nature of duties likely to be performed by Junior
Engineers, the Competent Authority consciously
decided to prescribe diploma alone in the concerned
discipline to be a valid qualification for appointment
against the posts of Junior Engineers. This
classification has a rational basis for the necessary
object to be served, viz., the work requirement of
Junior Engineers.
47. The State came up with another plea that
there are large number of job opportunities for
degree-holders including that of Assistant
Engineers, which opportunity cannot be availed by
diploma-holders. The opportunities of diploma
holders remain confined to the opportunities of
employment through direct recruitment to the post
of Junior Engineers only and if the degree-holders
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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are also included, it would not remain a level playing
field for diploma holders and that also when the
course curriculum are absolutely different.
48. The State as well as the diploma-holders have
also relied upon a Division Bench decision of this
Court in L.P.A. No. 1416 of 2018, wherein, it
was held that a person possessing a qualification of
masters in Electrical Engineering may subsume in it
a degree of bachelor’s in engineering being an in-
line qualification, but the same cannot be
necessarily concluded in respect of a diploma course
in as much as a degree course is not an in-line
higher qualification of diploma. For admission in an
Engineering Degree Course, one has to undergo a
different test as compared to for admission in a
diploma course. Even the minimum qualifications
for entry in the courses are different. No doubt a
diploma course is a lesser qualification but with a
different curriculum as compared to four years
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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degree course.
49. The afore-noted judgment in appeal was
affirmed by the Supreme Court in Special Leave
to Appeal (C) No. 1187 of 2019.
50. Thus, to conclude:-
(a) the Rules in question are very
specific with respect to the qualification
prescribed for the post of Junior Engineer,
which is diploma in Civil, Mechanical and
Electrical Engineering;
(b) There is no rationale behind holding
a degree in such discipline to be in-
line/channel higher qualification which
would subsume in itself the lesser
qualification of diploma;
(c) The prescription of qualification for
post is a matter of recruitment policy and
the State as the employer is entitled to
prescribe the qualifications as the condition
of eligibility;
(d) It is no part of the role or function of
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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judicial review to expand upon the ambit of
the prescribed qualifications;
(e) Equivalence of a qualification is also
not a matter which could be determined in
exercise of the power of judicial review,
which squarely falls in the domain of the
State/Recruiting Authority;
(f) It cannot be denied that while
prescribing qualifications for a particular
post, the employer may pitch in various
factors especially dealing with functionality
of the post as also the creation of the job
opportunities across the societal structure;
(g) It was with a conscious intent in the
mind that the qualification prescribed in the
Rules was not preceded with word
“minimum”, leaving the qualification of
diploma to be the only qualification
determining eligibility unless a higher
qualification were in the same line/channel;
(h) For these reasons, the reference of
the judgments in Jyoti K.K. and Puneet
Sharma (supra) do not support the case of
Patna High Court CWJC No.7714 of 2023 dt.28-01-2025
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the petitioners.
51. The challenge to the constitutionality of the
Recruitment Rules of Bihar Water Resource
Department Subordinate Engineering (Civil) Cadre
Recruitment Rules, 2023 especially Rules 8 (I) (II)
and (III) thereof, thus fails.
52. The writ petitions are dismissed.
(Ashutosh Kumar, ACJ)
(Partha Sarthy, J)
sunilkumar/-
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