ORDER N.Y. Hanumanthappa, J.

1. The writ appeals have been filed challenging the order of the teamed single Judge dated 11-10-1996 passed in W.P.No.18595/96 directing the Andhra Pradesh Pollution Control Board-1st respondent to consider the case of the petitioner for promotion and appoint him as Senior Environmental Scientist.

2. Writ Appeal No. 1298/96 is filed by one Mr. N.B. Ramesh who was the 2nd respondent in W.P.No. 18596/96 and Writ Appeal No. 1300/96 is filed by the A.P. Pollution Control Board, the 1st respondent in W.P.No. 18596/96. W.P.No.17961/97 is filed by N.B. Ramesh seeking a direction to the respondents therein to treat the diploma in AIC on par with M.Sc. Chemistry. Since both the writ appeals are directed against the single Judge order and the point involved in W.P.No.17961/97 is also the subject-matter of the writ appeals, they are clubbed, heard together and disposed of by a common order.

3. A few facts which are necessary to dispose of these matters are as follows :- The A.P. Pollution Control Board, Hyderabad, hereinafter referred to as "the Board" is an authority of the State constituted under the provisions of the A.P. Water (Prevention and Control of Pollution) Act, 1974, hereinafter referred to as "The Act''. The service conditions of the employees of the Board are governed by the provisions of the Water (Prevention and Control of Pollution) Rules, 1976, hereinafter referred to as "the Rules". The Rules have been framed by the State of Andhra Pradesh by exercising its powers under the provisions of Section 64 of the Act. Rule 4 of the Rules envisages that no person shall be eligible for appointment to any category in the service unless he possesses the qualifications prescribed. Rule 14 of the Rules envisages that no member of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category and has passed such tests as may be prescribed by the Board and all promotions in the service shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal. The mode of recruitment and qualification for the post of Junior Scientific Officer and the Senior Scientific Officer are extracted herein :

Sl.No Category Mode of Recruitment Qualifications

3. Junior Scientific Officer (G.O.Ms. No.536, MA, date 6-8-1980) By direct Recuitment Must possess M.Sc. degree in Chemistry/Bio-Chemisry/Biology of Environmental Science of a recognised University     or       By promotion on transfer

1. Must have the qualification prescribed for direct recruitment

2. Must have service of Analyst Grade-I for not less than 3 years.

4. Scientific Officer (redesignated as Sr. Environmental Scientist By direct Recruitment

1. Must have the qualification of M.Sc. in Chemistry Bio-Chemistry/ Biology of Environmental Sciences of a recognised University.

2. Must have the service of Jr.Chemist for not less than ten years.

By Promotion or transfer

1. Must have the qualification prescribed for direct recruitment

2. Must have the service of Junior Chemist for not less than five years.

As per the said recruitment rules. For the post of Junior Scientific Officer by way of direct recruitment one must possess a Master degree in Chemistry/Bio-Chemistry or Biology of Environmental Sciences of a recognised University. For the same post by way of promotion one must possess the same qualification that is prescribed for direct recruitment and in addition, one must have served as Analyst Grade I for not less than three years. For the post of Scientific Officer (Senior Environmental Scientist) both by way of direct recruitment and by promotion one must possess the same qualification as prescribed for the post of Junior Scientific Officer. In addition, one must have served as Junior Chemist for not less than ten years in the case of direct recruitment and 5 years in the case of promotion.

4. The case of the petitioner in W.P.No.18595/96 namely B. Krishna Reddy was that though he is fully qualified for promotion to the post of Senior Environmental Scientist, the Board considered the case of the 2nd respondent Mr. N.B. Ramesh who is less qualified. Thus he sought to declare the Board's proceedings No.208/APPCB/ESTT/ E-4/96-2084, dated 31-8-1996 promoting the 2nd respondent as Senior Environmental Scientist as illegal and void and requests the Court to direct the Board to appoint him as Senior Environmental Scientist in the place of the 2nd respondent. According to the petitioner, as on the date of promotion of the 2nd respondent, the petitioner was working as Junior Scientific Officer in the Board. Regarding his qualifications, he possessed M.Sc. degree in first class in Botany Specialisation in Ecological Studies (Hydro-Biology and Limnology) from Osmania University in the year 1977. He also obtained Ph.D. in Environmental Science (on Urban and Industrial Pollution) in the year 1991 from Andhra University. He underwent training in United States in Hazardous Waste Management as U.S. Environmental Protection Agency Cincinati, Ohio State in 1992. The petitioner was appointed as Analyst Gr.II in the year 1978. Subsequently he was promoted as Analyst Gr.I in the year 1981 and he was further promoted as Junior Scientific Officer in the year 1985 and was holding the Full Additional Charge of the post of Sr. Environmental Scientist On 31-8-1995, the post of Senior Environmental Scientist fell vacant due to retirement of one Mr. K. Srinivisan. As such the Board decided to fill up the said post on regular basis by way of promotion. According to the petitioner, comparatively he was fully and more qualified and eligible for promotion to the said post than the 2nd respondent on the date of promotion. The 2nd respondent is only a science graduate. He was initially appointed as Grade.II Analyst in the year 1977. Subsequently he was promoted as Grade.I Analyst in the year 1986 and he was further promoted as Junior Scientific Officer in the year 1988. The 2nd respondent claimed promotion of Senior Environmental Scientist on the basis of a diploma in A.I.C. (Associateship of the Institute of Chemist) in the year 1986.

5. To fill up the post of Environmental Scientist, the Board considered three names namely the petitioner, the 2nd respondent and one Vijayanand. The petitioner possessed better qualifications as he has been working in the existing post i.e., Junior Scientific Officer since 14-10-1985, whereas the 2nd respondent has been working only since 15-11-1988. According to the petitioner, the diploma in AIC which the 2nd respondent obtained is not a requisite qualification for being promoted as Sr. Environmental Scientist. Yet the Departmental Promotion Committee recommended his name for the said post and the same was accepted and orders were issued on 31-8-1996. Thus, the 2nd respondent's appointment is bad and the same be set aside declaring the impugned proceedings as illegal and in his place the petitioner be promoted.

6. The Board filed its counter. The stand taken by the Board was that as on the date of consideration of promotion by the Departmental Promotion Committee, the 2nd respondent was already working as Junior Scientific Officer. The qualifications for both the Junior Scientific Officer and Senior Environmental Scientist arc the same except with respect to experience. The 2nd respondent was promoted as Junior Scientific Officer and continued as such till 31-8-1996. According to the Board, the Associateship of the Institute of Chemist is equivalent to M.Sc. degree in Chemistry. The said diploma is prescribed as equivalent for all the appointments. The Departmental Promotion Committee after considering the relative merit of the candidates, equivalence of the qualifications, recommended the name of the 2nd respondent for promotion and accordingly the Member Secretary of the Board issued appointment orders in his proceedings dated 31-8-1996. The Board asserted that there was no necessity for the Departmental Promotion Committee to send recommendation to the Board. The Chairman himself is entitled to take a decision and the decision was taken accordingly. One more reason, the Board asserted, to refuse the case of the petitioner was that the petitioner was placed under suspension from 20-4-1994 on his failure to comply with the orders of transfer posting him as Junior Scientific Officer in Regional Office at Vizianagaram.

7. The case of the 2nd respondent in his counter was that as on the date of considering his case for promotion he was fully qualified. The diploma in AIC is equivalent to the post-graduate qualification and the same was recognised way back in the year 1985 by the Government of India. Its equivalence has been recognised by the Osmania University as evident from the certificate issued by the Assistant Registrar of the said University. He asserted that his promotion is well in accordance with the rules and it does not require to be disturbed.

8. The learned single Judge was unable to agree with the contentions raised by the 1st and 2nd respondents for the reason that comparatively the petitioner possessed the requisite qualifications than the 2nd respondent. The learned single Judge observed that the Board itself had considered the case of the petitioner earlier for promotion as Senior Environmental Scientist on ad hoc basis. The diploma in AIC cannot be equated to the one of the requisite qualification in this case, namely M.Sc., in Chemistry. His Lordship further observed that the certificate issued by the Assistant Registrar, Osmania University is not a valid one, The learned single Judge also observed that it is not for the Court to prescribe any qualifications, but it is for the employer to prescribe the qualifications and the rules of recruitment etc. When the question was cropped that AIC diploma shall not be treated as equivalent to the post-graduation in the case of initial recruitment for the post of which the minimum qualification is prescribed as M.Sc., the Board in its meeting held on 21-8-1996 in Resolution No.501 suggested amendment to service rules as follows -

"1. The following provision may be added below item (a) against "by promotion or transfer" under column 3.

2. Provided that persons possessing the AIC Diploma and who are in the employment of the Board as on 6-3-1986 shall be considered eligible for the post of Junior Scientific Officer subject to satisfying other requirement for promotion."

But the learned single Judge found that though a request was made to the Government to amend the rules suitably, no action has been taken in this regard. The learned single Judge found that a candidate who desires to seek appointment to a post must possess the requisite qualifications and fulfil the other requirements. The learned single Judge took into consideration the effect of the principles laid down by the Supreme Court in the case of "District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and another v. M. Tripura Sundari Devi" wherein the Supreme Court held that the qualifications mentioned in the advertisement for a particular post shall alone be the qualification and any deviation amounts to arbitrariness and even fraud on public, and thus the learned single Judge observed that the principle applies to the case of the petitioner. The learned single Judge found that there is no variation in the qualification and as such the same should have been adhered to strictly while making appointments cither by way of direct recruitment or by promotions. Another mistake the learned single Judge pointed out is that the selection of the 2nd respondent was not by the Board but by the Chairman. On the other hand, the matter should have been placed before the Board for its decision. Thus observing, the learned single Judge allowed the writ petition. Aggrieved by this, these two writ appeals have been filed.

9. When these appeals were earlier listed before another Division Bench of this Court, they were heard and disposed of by a common order dated 5-11-19%. The Division Bench agreed that the Court has no jurisdiction to substitute its opinion as to the one formed by the Employer in the matter of prescribing qualifications for appointment. Regarding fixing of equivalence it is not the concern of the Court. The Division Bench considered the other points raised namely relative merit and suitability etc., and ultimately held that the issue before the Court to consider whether the appointment of the 2nd respondent is correct or illegal is premature for the reason that the selection is yet to be approved by the Board but the same was not placed before the Board. Thus observing, the Division Bench passed the order directing the Secretary of the Board to place all the material with respect to the selection and appointment in the post of Senior Environmental Scientist before the Board within one month with a further direction that the Board shall take a decision whether to accept the recommendation of the Departmental Promotion Committee and/or the representation of the 1st respondent herein, namely the writ petitioner and decide the same by giving reasons on all matters. Thus observing allowed the Writ Appeal No. 1298/96 and set aside the order of the learned single Judge. Aggrieved by the same Dr. B. Krishna Reddy, the writ petitioner, approached the Supreme Court by filing Civil Appeal Nos.2727 and 2728 of 1997 and die Supreme Court by its order dated 7-4-1997 observed as follows :

"Therefore, the contention of the appellant that the qualification now required is only M.Sc. of a recognised University in the specified subjects and only a person with this minimum qualification was eligible for appointment, is not without force. It is also significant to note that unlike the Resolution dated 20-2-1986, a person having a Diploma equivalent to M.Sc. is not qualified to apply. A person with a Diploma in AIC cannot apply for the post. We direct the High Court to examine this mater afresh and pass a fresh order in accordance with law. The impugned judgment under appeal is set aside. Status quo will be maintained till High Court decides the matter. The High Court will decide the case finally as expeditiousiy as possible. The appeals are disposed of accordingly."

10. The contentions of Mr. N.B. Ramesh, the appellant in W.A.No.1298/96 and the Board in W.A.No. 1300/96 are almost identical. It is further contended that the learned single Judge should have held that the diploma in AIC possessed by the 2nd respondent is equivalent to M.Sc. degree in Chemistry. Wherever such degree is prescribed as qualification to fill up any post, the said diploma shall be accepted. Its equivalence has been recognised by the Union of India in exercise of Executive Powers conferred under Article 73 of the Constitution of India referable to the legislative field of the Union under Entry 66 List I of the Seventh Schedule to the Constitution of India. The learned single Judge should not have expressed his doubt as to the correctness of the certificate issued by the Assistant Registrar of Osmania University. On the other hand, credence should have been given to the said certificate The diploma in AIC has been recognised as equivalent to M.Sc. by the Academic Council of Osmania University on 13-9-1982 and it is subsequendy approved on 30-3-1983. The finding of the learned single Judge that the service rules of the 1st respondent Board since not amended, the rules existing shall be accepted is again incorrect. It is contended that when the AIC diploma has been treated as equivalent to M.Sc., Chemistry by the Union of India, the learned single Judge should not have held that the 2nd respondent is not entitled to be promoted to the post of Senior Environmental Scientist. On the other hand, the 2nd respondent was qualified to be appointed as Senior Environmental Scientist. The qualifications prescribed for Junior Scientific Officer and the Senior Environmental Scientist are one and the same. When the 2nd respondent and the petitioner worked on the same post, it should have been inferred that both possessed the requisite qualifications. When merit and ability are considered by the Board, the 2nd respondent was preferred. The grounds urged by the Board in W.A.No. 1300/96 as observed earlier are almost similar to those in W.A.No. 1298/96. In addition, it urged that the learned single Judge should not have placed reliance on the decision reported in 'District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi' case.

11. The learned Counsel appearing for the 1st and 2nd respondents (appellants in WA Nos. 1298/96 and 1300/96) attacked the order of the learned single Judge raising the same grounds which were urged in the memorandum of appeal.

12. As an answer to these contentions, the learned Counsel for the petitioner supported the reasons given by the learned single Judge to declare the appointment of the 2nd respondent as Senior Environmental Scientist as illegal. He maintained that as on the date of appointment even earlier to that, the petitioner was not only senior but well qualified possessing all the requisite qualifications whereas the 2nd respondent has not possessed the requisite qualifications. Treating the diploma in AIC as equivalent to M.Sc. Chemistry is quite illegal and misuse of power conferred on the Departmental Promotion Committee. The Board being an authority should have acted with all care and caution in giving promotion. The appointment of the 2nd respondent as Senior Environmental Scientist is violative of Article 14 of the Constitution of India. Unless the rules are amended, the existing rules shall be applied in the matter of appointment and promotion. As per the existing rules as on the date of considering the subject-matter for promotion and appointment it was the petitioner alone who was fully qualified but not the 2nd respondent. Any appointment made by an authority shall be not only in conformity with the existing recruitment rules but shall be free from bias and arbitrariness. According to him, the principles laid down by the Supreme Court in the case referred supra by the learned single Judge applies to the case on hand with all force. Thus arguing, sought the writ appeals be dismissed.

13. Regarding the mode of recruitment both for direct recruitment and recruitment by promotion, the requisite qualifications have been already explained supra. So far as the petitioner is concerned, he is well qualified in addition to possessing the requisite experience and, thus, acquired the suitability to be promoted to the post of Senior Environmental Scientist. That is why the Board allowed the petitioner to work as Senior Environmental Scientist on ad hoc basis. The diploma in AIC is not a qualification prescribed under the Rules. Mere treating it by the Government as equivalent to M.Sc., is not binding on the employer. The certificate issued by the Assistant Registrar of Osmania University, Hyderabad treating the diploma in AIC as equivalent to M.Sc. Chemistry is not free from suspicion. The practice of allowing a person possessing a diploma in AIC to work as an officer contrary to the qualifications prescribed in the recruitment Rules, which are mandatory, will not confer any right on the person concerned. Unless the existing Rules are amended to the effect that the diploma in AIC be treated as one of the alternative qualifications, that person cannot make a claim on the basis of that diploma, as against the other person who has got the requisite qualification. As such, the 2nd respondent herein who is a diploma holder in AIC cannot compete with the petitioner, Dr. B. Krishna Reddy, who has got not only the requisite and also higher qualifications in addition to the requisite experience. As the Rules to treat the diploma as equivalent to M.Sc. Chemistry are not amended, the 2nd respondent is not entitled to claim for promotion as Senior Environmental Scientist. If any person is appointed to a particular post, he shall possess the requisite qualifications and at times experience may pursuade the authorities to insist for prescribed qualifications as quite mandatory and the same cannot be overlooked. This view of ours is supported by the decision of the Supreme Court in the case of "H.S. Gupta v. Chairman, Board of governors I.I.T. Delhi ", . Further making appointments contrary to the qualifications prescribed in the advertisement or the Recruitment Rules particularly by the authorities which are instrumentalities of the State shall not be appreciated as it amounts to playing fraud on the public as held by the Supreme Court in "District Collector and Chairman, Vizianagaram Social Welfare Residential School, Society, Vizianagaram and another v. M. Tripura Sundari, which was relied upon by the learned single Judge. The relevant portion is extracted herein :

'' It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly state that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice."

In our view the order passed by the learned single Judge cancelling the appointment of the 2nd respondent as Senior Environmental Scientist and directing the Board to consider the case of the petitioner for promotion and appointing him as Senior Environmental Scientist is quite correct. We see no merit in the writ appeals and they are liable to be dismissed.

14. Accordingly, the appeals are dismissed and the order of the learned single Judge is confirmed. It is further observed that if the proceedings No.208/APPCB/Estt/ E4/96-2084, dated 31-8-1996 are at the recommendation stage or at the stage of approval by the Chairman only and the appointment order not yet issued to the 2nd respondent, the matter shall be placed before the Board of Directors for approval and in such an event the Board shall take into consideration the observations made by us in this order. In case the appointment order has already been issued to the 2nd respondent and the 2nd respondent is functioning as Senior Environmental Scientist the same is declared as illegal and the said post be filled up considering the case of the petitioner as per the existing recruitment rules. The entire exercise shall be done within two months from today.

15. Before parting with these appeals, we have to deal with another writ petition filed by Mr. N.B. Ramesh, namely W.P.No. 17961/96 in whose favour there was recommendation to appoint him as Senior Environment Scientist. He filed this writ petition seeking a writ of Mandamus declaring the action of the respondents in not considering the Associateship Diploma in Institution of Chemists (India) obtained by Examination on par with M.Sc. (Chemistry) for recruitment and promotion of various posts for which M.Sc. (Chemistry) is prescribed as a requisite qualification as arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India and for a consequential direction to the respondents to treat the Associateship Diploma of the Institution of Chemists (India) on par with M.Sc. Chemistry and consider the persons possessing the said qualification for promotion to the posts for which M.Sc. Chemistry is one of the requisite qualifications.

16. In this writ petition, he made the A.P. Pollution Control Board as 1st respondent, the Government of A.P., Energy Environment Science and Technology Department as 2nd respondent and the A.P. Housing Municipal Administration and Urban Development as 3rd respondent. He has given the details of his qualifications and his service in the A.P. Pollution Control Board which were already referred above regarding which there is no dispute. According to him, the Associateship diploma of Institute of Chemist has been recognised for all chemical posts for which M.Sc. Degree in Chemistry is the qualification. In this respect, a notification has been issued by the Government of India to all the Universities of State Governments. When all the Universities have recognised the said diploma in AIC, it is not proper for the Board to treat the same as not equivalent to M.Sc. He also registered as a candidate for Ph.D. in Osmania University for obtaining M.Phil or Ph.D. According to him the diploma in AIC is equivalent to M.Sc. in Chemistry. In some of the departments of Union of India and other State services, the AIC is equated to M.Sc. Chemistry and the persons with AIC diploma are eligible to the post to which M.Sc. Chemistry is prescribed as qualification and entitled for recruitment or promotion. The Central Pollution Control Board, Government of India has also equated the AIC diploma with M.Sc. in Chemistry. It is considering the persons possessing diploma in AIC for appointments and promotions. The non-inclusion of diploma in AIC in the recruitment Rules of the A.P. Pollution Control Board is a mistake and it should have been rectified by the Board long ago. For the mistake of the Board, a person with the above diploma should not have been deprived of the opportunity of appointment and promotion. He also contended that a direction be given to the respondents that the diploma in AIC shall be treated on par with M.Sc. Chemistry and to consider the candidatures of such diploma holders for appointments and promotion to the post for which the qualification prescribed is M.Sc. in Chemistry. To substantiate his contention that the diploma in AIC has been recognised by the Universities and the Government he took us through the material papers. But the fact remains that as long as the qualification on which a person bases his claim for promotion or appointment does to find a place in the Recruitment Rules, such person is not entitled to such promotion or appointment. The petitioner may be right in saying that diploma in AIC is equivalent to M.Sc. in Chemistry, but the same shall find a place in the recruitment rules. When a representation has been made to the respondents by the petitioner herein, it is the duty of the respondents to look into his grievances and take appropriate decision as to the inclusion of the diploma in AIC as equivalent to M.Sc. Chemistry or rejection. But the silence on the part of the authorities concerned in taking a decision on such representation namely whether suggesting any amendment to the rules or refusing the same is not proper.

17. With the above observation, this writ petition is disposed of. No costs.