Holding

When an advertisement’s qualification criteria conflict with statutory rules, the statutory prescription prevails; the post of Psychologist requires only a M.A. in Psychology (or equivalent) and the training qualification is merely preferential, entitling the appellant to appointment.

Summary

Ashish Kumar applied for the post of Psychologist in the Uttar Pradesh Social Welfare Department, cleared the written exam and was placed on the merit list, but was denied appointment because he lacked the training qualification L.T./B.T./B.Ed. The High Court held that the advertisement required both a Psychology degree and the training qualification, rejecting his claim. On appeal, the Supreme Court examined the language of the advertisement, noting the use of slashes and words like "or" to indicate alternative qualifications, and held that the training qualification is merely preferential. The Court further observed that the 1991 Janjatiya Vikas Shikshan Aur Kermchariverg Sewa Niyamavali prescribes M.A. in Psychology as the essential qualification for a Psychologist, and any contradictory advertisement must yield to the statutory rule. Consequently, the appellant satisfied the statutory qualification and the denial of his appointment was deemed arbitrary and illegal. The Supreme Court set aside the High Court judgments, allowed the appeals, and directed the respondents to appoint the appellant within two months.

Issues considered

The advertisement for the post of Psychologist required both a degree in Psychology and a training qualification (L.T./B.T./B.Ed.) or only one of them.
Whether the qualification prescribed in the Janjatiya Vikas Shikshan Aur Kermchariverg Sewa Niyamavali, 1991 supersedes the advertisement.
Whether a post‑graduate in Psychology without L.T./B.T./B.Ed. satisfies the eligibility for appointment as Psychologist.
Whether the denial of appointment to the appellant is arbitrary and illegal.

Subjects

service lawappointmentqualificationadvertisement interpretationstatutory rulespreferential qualificationrecruitmentpsychologistUttar Pradesh

Judgment

[2018] 1 S.C.R. 695 695

ASHISH KUMAR A
v.
THE STATE OF UTTAR PRADESH & ORS.
(Civil Appeal Nos. 170-171 of 2018 )
JANUARY 31, 2018 B
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Service Law:
Appointment – Denial – Propriety of – Advertisement for
appointment to the post of ‘Psychologist’ – After written examination C
appellant (candidate) was declared successful – At the time of
verification of his documents, he was told that he was not eligible
for appointment as he did not possess training qualification i.e.
L.T./B.T.B.Ed. alongwith graduation with Psychology – Writ Petition
by appellant – Dismissed by Single Judge of High Court – Order
D
further confirmed in Special appeal and also in Review petition –
On appeal, held: Advertisement cannot be read to mean providing
for graduate in Psychology with L.T./B.T.B.Ed.– A harmonious
reading may mean that a person graduate in Psychology or L.T./
B.T.B.Ed. with Psychology is eligible – Service Rules provide that
Post Graduation in Psychology is qualification for the post and E
B.Ed’s is only preferential qualification – Any part of advertisement
which is contrary to the statutory rules has to give way to the
statutory prescription – Appellant being a post-graduate in
Psychology fulfills the qualification and hence entitled to be
appointed on the post of Psychologist – Janjatiya Vikas Shikshan
F
Aur Kermchariverg Sewa Niyamavali, 1991.
Allowing the appeals, the Court
HELD: 1. The advertisement cannot be read to mean
providing for graduate in Psychology with L.T./B.T. B.Ed. The
words graduate/L.T./B.T. B.Ed. are all alternative qualification G
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 graduation with Psychology and
training certification i.e. L.T./B.T. B.Ed. have also to be with
H
695
696 SUPREME COURT REPORTS [2018] 1 S.C.R.

A 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.[Paras 14, 15] [703-D-F]
2. In advertisement, with regard to various qualifications,
B words “;k” (or) “lkFk” (with), “vFkok”(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. The Appointing Authority used word ‘with’(lkFk),
when it wanted both the qualifications together. Wherever stroke
C ‘(/)’ has been used it was used, when either of the qualifications
were indicated. [Para 17] [703-G-H; 704-A-B]
3. Before the aforesaid qualifications, the words “in
Psychology subject” has been used as prefix, which clearly means
that all the alternative qualifications were required to have with
D 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
E is the plain and simple meaning of the advertisement. [Para 17]
[705-D-E]
4. Janajitiya Vikas Skikshan Aur Kermchariverg Sewa
Niyamawali (1991 Rules)clearly indicate that qualification for
Psychologist is M.A. in Psychology. The B.Ed. is a preferential
F qualification and essential qualification is only M.A. in Psychology.
The qualification prescribed in the Rules does not provide for
L.T./B.T. B.Ed. as essential qualification. Thus non-possession
of L.T./B.T. B.Ed. does not make him disqualified for the post as
per Statutory Rules of 1991. Appellant is post-graduate in
psychology and thus, also fulfills the qualification prescribed in
G the 1991 Rules. When under the statutory rules appellant fulfills
the qualification; there is no occasion to deny appointment to
him. [Paras 20, 21] [706-F-G; 707-B-C]
5. Any part of the advertisement which is contrary to the
statutory rules has to give way to the statutory prescription. Thus,
H looking to the qualification prescribed in the statutory rules,
ASHISH KUMAR v. THE STATE OF UTTAR PRADESH & ORS. 697

appellant fulfills the qualification and after being selected for the A
post, denying appointment to him is arbitrary and illegal. [Para
22] [707-C-D]
Malik Mazhar Sultan & Anr. v. U.P. Public Service
Commission & Ors. (2006) 9 SCC 507 : [2006] 3
SCR 689 – relied on. B
6. 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 direction to appoint
him on the post of Psychologist. [Para 23] [708-B-C] C
Case Law Reference
[2006] 3 SCR 689 relied on Para 22
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 170-
171 OF 2018
D
From the Judgment and Order dated 04.10.2010 in Special Appeal
No. 446 of 2006 and Judgment and order dated 20.12.2012 in Review
Petition No. 354 (Defective) of 2012 of the High Court of Judicature at
Allahabad, Lucknow Bench, U. P.
Mukesh K. Giri, Ankit Khera, Advs. for the Appellant.
E
Ajay Kumar Mishra, AAG, Ms. Aishwarya Pathak, Akshat Kumar,
Rajiv Yadav, Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. These two appeals have been filed
against the judgment of High Court of judicature at Allahabad (Lucknow F
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: G
The appellant belongs to other backward caste who has passed
graduation (B.A.) with Psychology and has also done post-graduation 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
H
698 SUPREME COURT REPORTS [2018] 1 S.C.R.

A 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
B
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
C 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
D (I) issue a writ order or direction including a writ in the
nature of mandamus commanding the o p p o s i t e
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’.
E
(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
F 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
G the case.
(V) Award the cost of petitionin 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
H also filed a Contempt Application No.182 of 2004 in which Director,
ASHISH KUMAR v. THE STATE OF UTTAR PRADESH & ORS. 699
[ASHOK BHUSHAN, J.]

Social Welfare was directed to appear in person. An Order dated A
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
B
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 C
for the State of U.P.
5. Learned counsel for the appellant submits that the appellant
being graduate and post-graduate 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 D
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 dated 09.05.2008
but said posts were again revised by the subsequent Government Order E
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 F
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. G
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 H
700 SUPREME COURT REPORTS [2018] 1 S.C.R.

A 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 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
B
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
C 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
D 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
E affidavit it has been reiterated that even if there is some ambiguity in the
advertisement, the appointment has to be 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,
F 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
G 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
H
ASHISH KUMAR v. THE STATE OF UTTAR PRADESH & ORS. 701
[ASHOK BHUSHAN, J.]

in mind, it is most respectfully submitted by the respondent A
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
B
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 C
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 last portion of the judgment:
“...Accordingly the petitioner should have possessed the
qualification of trained graduate and since he does not D
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.” E

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 F
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 G
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 H
702 SUPREME COURT REPORTS [2018] 1 S.C.R.

A 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
B 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
qualifications as pronounced in the advertisement. In case
he was aggrieved by description of such qualifications, he
C 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.”
D 11. The appellant has brought on record both the advertisement
as well as 1991 rules. The advertisement has been filed as Annexure A-
1 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 A-1. The translated copy in
English has also been attached at page 6. We are concerned with the
E 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:
F

G

H
ASHISH KUMAR v. THE STATE OF UTTAR PRADESH & ORS. 703
[ASHOK BHUSHAN, J.]

13. The English translation of the advertisement at Page 6 of A
Annexure A-1 with regard to the post of Psychologist is as follows:

1. Psychologist- 18-35 4500- Graduation in Psychology/L.T./B.T.B.Ed in
03 years 7000 the subject of Psychology.
Preferential
Qualification: B
1.Diploma in guidance psychology from
Bureau of Psychology, Allahabad or
Government of India or from other
recognized institutions,
2.Working experience in Hindi
C
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 D
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 E
Psychology or L.T./B.T. B.Ed. with Psychology is eligible. When the
post is of Psychologist, both 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. F

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. G

17.There is one more reason to accept the meaning of
advertisement as noticed above. In advertisement, with regard to various
qualifications, words “;k” (or) “lkFk” (with), “vFkok” (either) and stroke
‘(/)’ have been used. The appointing authority is well aware of the
H
704 SUPREME COURT REPORTS [2018] 1 S.C.R.

A 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 A-1. The Appointing Authority used word
‘with’ “lkFk”, 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 A-1 contains qualifications
B
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
C (/) 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. G rah M other - 18-3 5 3 20 0- Inter medi ate exam ination
02 years 4 90 0 passed alo ng with H om e
D S cience. E ssential
Q ual ificatio n: two years
practical experien ce of Gr ah
M oth er in any In st itu te/
C om m ittee
6. K aram shal al -do- 4 50 0- Inter medi ate exam ination
P rash ik shak 7 25 0 passed from U .P . M adhyam ik
E F ou ndary Shop E ducati on C ounci l or a
/ Black Sm it h Inst itution recogni zed by t he
S ho p – 02 G ove rnm ent equi valen t
ther eto. Cert ificate of
G .S .T .S . for three years fro m
the co ncer ned branch or
C ert ifica te of G.I .T .I./ I.T.I.
f rom con cer ned b ranch or
F D ip lo m a of P olytechni c.
E ssential Qualification : T hree
Y ear s Ind ustri al expe rience
after the Certificate.
11. S ewi ng Tr ainer -do - 3 05 0- P assed Inter m edi ate or
( N ation al 4 59 0 equiv alen t th ereto and I.T.I.
B aggers Ho m e) in con cer ned Tra d e/
- 01 A pp renti ce C er tificat e or
G D ip lo m a.
16. M usic T eacher- -do- 4 00 0- Inter medi ate passed fro m
03 6 00 0 M usic Co llege or a
C ert ifica te/ Diplom a
r ecog nized by the
G ove rnm ent .

H
ASHISH KUMAR v. THE STATE OF UTTAR PRADESH & ORS. 705
[ASHOK BHUSHAN, J.]

A
17. Stitching -do- -do- Intermediate passed or
Trainer-01 equivalent thereto and ITI in
concerned Trade,
Apprentice/ Certificate or
Diploma. Examination Fees
:General Category 60/- Other
Backward Class 40/-, B
Schedule Caste/Schedule
Tribe 25/-

C
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 subject” has been used as prefix, D
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
ik 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 E
e
simple meaning of the advertisement which has been missed by the
m State as well as the High Court.
I. 18.The Division Bench in support of its view has interpreted the
advertisement in the following manner:-
F
ee “.....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.” G

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
H
706 SUPREME COURT REPORTS [2018] 1 S.C.R.

A 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 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
B
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
C with L.T./B.T. B.Ed. 1991 Rules have been filed as Annexure P-1 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:
D
Name No Of Post Source Eligibility Age Limit Pay-Scale
S.No. of Post Te total of for Direct Min. Max.
Per mp recruit- recruitment
ment
10. Psycho 4 4 8 Throug M.A. in 21 32 515-15-590-
logist h the Psychology 18-626-EB-18-
commis preferably 68-20-780-Eb-
E sion B.Ed or 20-860 (Before
directly diploma registration)
from any
recognized
institution in
teaching
subject
F
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
G 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.

H
ASHISH KUMAR v. THE STATE OF UTTAR PRADESH & ORS. 707
[ASHOK BHUSHAN, J.]

21. In the counter affidavit filed in this court by the state, 1991 A
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 Rules does not provide for L.T./B.T.
B.Ed. as essential qualification. Thus non-possession of L.T./B.T. B.Ed.
does not make him disqualified for the post as per Statutory Rules of
B
1991. Appellant is post-graduate 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. C
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 D
cale 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
5-590-
Service Commission & Ors., 2006 (9) SCC 507. Paragraph 21 of the
6-EB-18-
-780-Eb- judgment lays down above proposition which is to the following effect:
0 (Before E
ration) “21. The present controversy has arisen as the advertisement
issued by PSC stated that the 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 F
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 G
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.”

H
708 SUPREME COURT REPORTS [2018] 1 S.C.R.

A 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
B
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
C for issuing a 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
D respondents.
25. The judgments of the High Court are set aside and the appeals
are allowed accordingly.

E Kalpana K. Tripathy Appeals allowed.

F

G

H