Mrinalini Sharma vs State Of U.P. And Another
2021 Latest Caselaw 1406 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33
 

 
Case :- WRIT - A No. - 49524 of 2017
 

 
Petitioner :- Mrinalini Sharma
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Anurag Pathak,Harshit Pathak
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Petitioner's claim for appointment to the post of Instructor was directed to be considered by this Court in Writ Petition No.19775 of 2017 vide following observations made on 08.05.2017:-

"Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the State-respondents.

With the consent of the learned counsel for the parties, this writ petition is being decided finally at this stage.

The petitioner had applied for the post of Instructor in Government Industrial Training Institute. The claim of the petitioner was rejected on the ground that she did not have the quality point marks, which led to filing of a writ petition being Writ A No. 5487 of 2017, which was disposed of by order dated 10.2.2017 requiring the authorities to consider the claim of the petitioner. Now, an order has been passed that she does not have the requisite experience for being considered on the post of Instructor.

According to rules, the minimum experience for teaching or working in an industry in any district is three years. This time the claim of the petitioner has been rejected by the Director stating that she has experience of 2 years and 11 months. The chart that is annexed with the order as Annexure-11 to the writ petition in which calculation of experience has been done as from 10.8.2007 to 28.2.2009 and it has calculated 1 year and 4 months, which obviously appears to be wrong calculation as from 10th August, 2007 to 28th February, 2009, it would be 1 year and 6 months. As such, the petitioner's experience from the chart that is annexed with the order is at least 3 years 5 months, which has wrongly been calculated by the Director and this is the only reason for non-suiting the petitioner. The calculation made by the Director apparently is incorrect. As such, the order impugned cannot be sustained and it is hereby quashed with the direction to the Director, Training and Employment, Lucknow-respondent no.2 to consider and pass a fresh order again within a period of one month from the date a certified copy of this order is presented before the authority concerned.

To the aforesaid extent, the writ petition is allowed."

Contempt petition was thereafter also filed. Ultimately by the order impugned dated 19.09.2017 petitioner's claim has been considered and rejected. This order records that petitioner does not possess requisite eligibility for appointment to the post of Instructor, and therefore, she cannot be selected.

Appointment to the post of Instructor is regulated by U.P. Industrial Training Institute (Instructor) Service Rules, 2014. Rule 10 provides for possessing experience certificate and is extracted hereinafter:-

"10. For recruitment to the post of Instructor in the service a candidate whose technical qualification is National Trade Certificate or National Apprenticeship Certificate must have experience of minimum three years of working in an Industry or as a teacher/training. The minimum experience will be two years for diploma holders, and one year for degree holders of working in an Industry or as a teacher/trainer."

Advertisement, therefore, has been issued by the Directorate on 07.11.2014 and there is a specific clause of possessing experience which is extracted hereinafter:-

"vuqHko& lsok esa vuqns'kd ds in ij HkrhZ ds fy,] fdlh vH;FkhZ] ftldh izkfof/kd vgZrk jk"Vªh; izek.k i= ;k jk"Vªh; f'k{kqrk izek.k i= ds gS] ds ikl fdlh m|ksx esa dke djus dk ;k fdlh v/;[email protected]'k{kd ds :i esa U;wure rhu o"kksZ dk vuqHko gksuk vko';d gSA fdlh m|ksx esa dke djus ;k fdlh v/;[email protected]'k{kd ds :i esa vuqHko dh U;wure vof/k fMIyksek /kkjdksa ds fy, nks o"kZ dh gksxh vkSj fMxzh ¼mikf/k½ /kkjdksa ds fy, ,d o"kZ dh gksxhA"

The order impugned records that though petitioner had certificate of National Trade but she lacks three years' training on the last date of filing of application. According to respondents, the experience available with petitioner is of 2 years 11 months which is below the prescribed minimum term of three years.

Facts as have been recorded in the order impugned with regard to the period of experience is not in question. It is admitted that Statement of Marks for the National Trade certificate has been issued to the petitioner on 07.10.2009 and the period of training has been reckoned only after petitioner has acquired training certificate.

Learned counsel for the petitioner states that there is no stipulation in the advertisement or the rules that training period of three years has to be reckoned from the issuance of training certificate by National Council for Vocational Training. Reliance is also placed upon an RTI reply dated 20.11.2015 to submit that there is no Government Order which requires training experience to the post acquisition of National Trade certificate.

Learned counsel for the petitioner places reliance upon a judgment of the Supreme Court in the case of Subhash vs. State of Maharashtra, (1995) Supp. 3 SCC 332.

Petition is opposed by learned Additional Chief Standing Counsel.

I have heard learned counsel for the parties and have perused the materials brought on record.

Rule 10 of the statutory rules that regulates appointment on the post of Instructor and the experience clause in the advertisement needs to be analyzed in order to consider the arguments advanced before this Court. The experience stipulated in the advertisement is of different periods i.e. three years where candidate possesses National Trade certificate; two years where candidates possesses diploma; and one year where candidate possesses B.Tech. qualification. The possessing of experience is, therefore, directly linked to the qualification obtained by the candidate concerned. The advertisement also talks of the National Trade certificate being possessed by the candidate alongwith three years training experience.

The inevitable construction of the rules as also the advertisement would be that candidate must possess minimum qualification before his/her actual training is reckoned for the purposes of experience. In case petitioner's contention is accepted then there would be no co-relation between the period of experience and the qualification possessed. The requirement of training, therefore, pre-supposes possessing of one of the qualifications which is specified in the advertisement i.e. B.Tech, Diploma or the N.C.V.T. certificate. Respondents, therefore, do not appear to have erred in insisting upon possessing of three years training only after obtaining the National Trade certificate. Since on facts it is not disputed that petitioner does not possess such experience of three years, therefore, no exception can be taken if petitioner's claim has been discarded.

So far as the judgment of the Supreme Court in the case of Subhash (supra) it would be appropriate to note that their lordships of the Supreme Court were interpreting Motor Vehicle Department (Recruitment) Rules, 1991 framed under Article 309 of the Constitution of India. Rule 3(e) was interpreted to mean that working experience need not necessarily precede obtaining of eligibility qualification in that regard. It was in that context that their lordships observed that training period being sufficient it was not material whether such training was obtained after securing the minimum qualification.

In the facts of the present case, statutory rules and the advertisement clearly indicates a different intent i.e. of possessing training qualification after the minimum qualification is obtained inasmuch as different periods are specified for different kinds of eligibility qualifications specified in the rules. Petitioner, therefore, is not entitled to the relief prayed for on the basis of the judgement in Subhash (supra). No other ground is pressed.

Writ petition is, accordingly, dismissed.

Order Date :- 22.1.2021

Ashok Kr.