Delhi High Court
Praveen Kumar vs Delhi Metro Rail Corporation And ... on 25 March, 2022
$~J-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 11.11.2021
Judgment pronounced on: 25.03.2022
+ W.P.(C) 8250/2020
PRAVEEN KUMAR ......Petitioner
Through : Mr Sagar Saxena, Adv.
versus
DELHI METRO RAIL CORPORATION & ORS. ......Respondents
Through : Mr. V.S.R Krishna with Mr. V.
Shashank Kumar, Advs. for R-
1/DMRC
Mr. Harish Kumar Garg with
Ms. Payal and Mr. Mudit
Grover, Advs. for R-2, 3 &
4/UOI.
Mrs. Avnish Ahlawat with Mr.
Nitesh Kumar Singh, Advs. for
R-5 & R-6/GNCTD
CORAM :
HON'BLE MR JUSTICE RAJIV SHAKDHER
HON'BLE MR JUSTICE TALWANT SINGH
[Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J.
TABLE OF CONTENTS
Preface................................................................................................................................. 2
Background ......................................................................................................................... 2
Submissions on behalf of the petitioner .............................................................................. 6
Submissions on behalf of the contesting respondent i.e., DMRC ...................................... 7
Analysis and reasons ........................................................................................................... 9
Conclusion ........................................................................................................................ 15
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Preface:
1. This is a writ petition directed against the order dated 17.02.2020,
passed by the Central Administrative Tribunal [in short 'Tribunal'] in O.A.
No.3747/2016. Uncharacteristically, although respondent no.1's action was
assailed by two applicants in the Tribunal, the writ action has been preferred
by only one of them.
2. The petitioner before us is aggrieved as he has not been appointed to
the post of Maintainer-Electronic Mechanic; bearing postcode NE10(C)
[hereafter referred to as 'subject post'].
2.1. Respondent no. 1, in defence of its action, has taken the stand that the
petitioner does not possess the requisite qualifications for appointment to the
subject post.
3. The issue, therefore, which arises for consideration in the present writ
petition is: whether the petitioner possesses the requisite qualifications for
appointment to the subject post?
4. Thus, before one proceeds further, it would be necessary to set out the
backdrop in which the instant writ action has been instituted.
Background:
5. The petitioner avers that between 01.08.2005 and 31.07.2007, he
underwent industrial training at the CRPF Industrial Training Centre,
Wazirabad, Delhi; and after he had passed the test stipulated for the
"Mechanic - Radio and TV" trade, he was awarded a National Trade
Certificate (NTC) by the Government of India, Ministry of Labour and
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Employment, National Council for Vocational Training [in short "NCVT"].
5.1. This was followed by the petitioner obtaining, in and about June
2012, a Diploma in Electronics and Communication Engineering from the
Board of Technical Education, Delhi. The petitioner claims he secured first
division (with distinction) while obtaining a diploma in Electronics and
Communication Engineering.
6. Having obtained the aforementioned qualification, the petitioner, in
the first instance, it appears, applied for the post of Technician "A"
(Electronics) advertised by the Defence Research and Development
Organization, Ministry of Defence, Government of India [in short 'DRDO'].
Curiously, the petitioner had applied qua this advertisement under the
Unreserved (UR) category.
6.1. According to the petitioner, the essential qualifications prescribed for
the said post were :
(i) Class X certificate or equivalent;
(ii) Trade certificate from an Industrial Training Institute [in short "ITI"]
in Electronic Mechanic or Radio & TV Mechanic.
6.2. The petitioner claims that he not only cleared the written examination
but also had the documents verified, pursuant to which he participated in the
interview held by DRDO. However, the petitioner has placed nothing on
record to suggest what followed thereafter, that is, whether he was made an
offer of appointment.
7. It is in October 2015 that respondent no.1 i.e., Delhi Metro Rail
Corporation Ltd. [in short 'DMRC'] took out an advertisement [hereafter
referred to as '2015 advertisement'] inviting applications for the subject
post. The 2015 advertisement sought applications both for Executive and
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Non-Executive posts. Insofar as the petitioner is concerned, he applied in the
category of the non-executive post i.e., Maintainer-Electronic Mechanic.
7.1. Importantly, the 2015 advertisement clearly stipulated that the
applicant should have undergone a course in ITI (NCVT/SCVT) and
obtained a certificate in a "specific trade" listed out therein, to be considered
for appointment to the subject post. The number of vacancies which were
advertised, in all, qua the subject post, was 246; out of which 112 vacancies
were allocated to UR category candidates, while 58 posts were reserved for
Other Backward Classes (OBCs). Likewise, 32 posts were reserved for
Schedule Caste (SC) candidates and 44 posts were reserved for Scheduled
Tribe (ST) candidates. In addition, horizontal reservation was made for ex-
servicemen, which consisted of 35 posts
7.2. Pertinently, this time around the petitioner applied under the OBC
category, and not under the UR category, as had been done by him while
applying against the post advertised by the DRDO.
7.3. The petitioner, as required, sat for the written test and having cleared
the same, was provisionally shortlisted for document verification and
medical examination, via notice dated 29.07.2016. In the list appended to the
said notice, the petitioner's name was set down at serial number 139.
7.4. The process of document verification, according to the petitioner, was
carried out on 21.09.2016. It is claimed that at this stage, the Human
Resources (HR) Department of DMRC flagged an objection concerning the
petitioner's qualifications. According to the petitioner, he was told that the
qualification possessed by him i.e., an ITI course in the "Mechanic - Radio
& TV" trade was not equivalent to an ITI course in the "Electronic
Mechanic" trade, as stipulated in the 2015 advertisement, issued by the
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DMRC.
7.5. The petitioner asserts that although two other candidates who were
shortlisted on 29.07.2016 [i.e., one, Mr Hemant Kumar (at serial no.106)
and the other, Mr Rajendra Kumar Saini (at serial no.133)] possessed similar
qualifications [i.e., Mechanic - Radio & TV], they had been considered for
appointment to the subject post.
8. It is in this context that the petitioner appears to have submitted to
DMRC, the letter dated 26.09.2016 issued by the Government of India,
Ministry of Skill Development & Entrepreneurship, Directorate General of
Training. The purpose behind submitting this letter to the DMRC was to
demonstrate that it was the stand of the Government of India that the trade in
which the petitioner had qualified [i.e., "Mechanic - Radio and TV"] and
"Electronic Mechanic", were both covered under the ITI training courses
conducted under the Craftsmen Training Scheme. An attempt was made by
the petitioner, by relying upon the aforementioned letter, to show that both
trades i.e., "Electronic Mechanic" and "Mechanic- Radio and TV" had the
same training duration i.e., two years, and were part of the same genus i.e.,
"Electronic group".
8.1. This aspect was also sought to be buttressed by the petitioner by
relying upon a letter dated 11.08.2016, issued by the Government of NCT of
Delhi (GNCTD), Department of Training & Technical Education.
8.2. Armed with the letter dated 26.09.2016 issued by the Government of
India (GOI) and the letter dated 11.08.2016 issued by the GNCTD (to which
reference is made hereinabove), representations were made by the petitioner
on 21.09.2016 and 31.10.2016, to the effect, that he should be considered for
appointment to the subject post.
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8.3. Since the petitioner did not receive a response, he approached the
Tribunal on 06.11.2016. As indicated above, the petitioner's action was
registered as O.A.No.3747/2016 [in short 'OA'].
8.4. As noticed at the very outset, the Tribunal via the impugned order
[i.e., order dated 17.02.2020] dismissed the petitioner's OA. It is this, which
has impelled the petitioner to institute the instant petition under Article 226
of the Constitution of India.
9. In support of the petitioner's case, submissions were advanced by Mr
Sagar Saxena, while on behalf of respondent no. 1/DMRC, submissions
were made by Mr V.S.R. Krishna.
Submissions on behalf of the petitioner :
10. Mr Saxena emphasized that the trade qualification possessed by the
petitioner i.e., "Mechanic - Radio & TV" was equivalent to "Electronic
Mechanic". As noted above, in support of this plea, reliance was placed by
Mr Saxena on the GOI letter dated 26.09.2016 and the GNCTD letter dated
11.08.2016.
10.1. Furthermore, Mr Saxena highlighted the fact that the petitioner was
wrongly excluded from consideration for appointment to the subject post,
even though two other candidates i.e., Mr Hemant Kumar and Mr Rajendra
Kumar Saini who had the same qualifications as the petitioner, have been
appointed to the subject post.
10.2 Mr Saxena also submitted that the allegation levelled against the
petitioner by the DMRC in its counter-affidavit that the petitioner had
misrepresented his qualifications while filling up the online application qua
the subject post was untenable, as there was no other option available to the
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candidate in the drop-down menu for filling up the application.
10.3. Furthermore, Mr Saxena contended that what the petitioner did, while
filling up his online application, was no different from what the other two
candidates [i.e., Mr Hemant Kumar and Mr Rajendra Kumar Saini], had
done and therefore, this could not be trotted as a ground for denying the
petitioner a chance to be considered for appointment to the subject post.
10.4. Besides this, the fact that Mr Hemant Kumar and Mr Rajendra Kumar
Saini possessed a National Apprenticeship Certificate [in short 'NAC']
issued by the NCVT, would not by itself fulfil the purported lacunae in their
qualification for appointment to the subject post. In other words, the
submission of Mr Saxena was that the petitioner's position insofar as the
attainment of requisite qualifications was concerned, was no different from
that in which Mr Hemant Kumar and Mr Rajendra Kumar Saini were placed
and therefore, the impugned action of DMRC (i.e., its failure to consider the
petitioner for appointment to the subject post) was unsustainable in law.
Submissions on behalf of the contesting respondent i.e., DMRC:
11. On the other hand, Mr Krishna contended that because the petitioner
had misled the DMRC into believing that he possessed the qualifications
prescribed in the 2015 advertisement issued qua the subject post, he was
allowed to take the written examination. According to Mr Krishna, the
petitioner's misrepresentation was discovered only at the stage when
documents were verified. Mr Krishna stated that it was at this juncture, that
DMRC discovered that the petitioner did not possess a trade certificate in
"Electronic Mechanic"; which was the prescribed qualification.
11.1. It was emphasised by Mr Krishna that a perusal of the 2015
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advertisement would show that at the level of Maintainer, the DMRC had
sought persons having qualifications in specific trades such as Electrician,
Fitter, Electronic Mechanic, Refrigeration and Air Conditioner Mechanic.
The submission, therefore, was that there was no equivalence in the two
trades i.e., "Mechanic - Radio & TV" and "Electronic Mechanic".
11.2. It was, thus, contended that since the petitioner had made a
misrepresentation vis-a-vis his qualification, he was not entitled to any
relief. In support of this plea, reliance was placed on the judgment of the
Supreme Court rendered in Union of India & Ors. v. M. Bhaskaran, 1995
Suppl. (4) SCC 100.
11.3. Insofar as the appointment of Mr Hemant Kumar and Mr Rajendra
Kumar Saini was concerned, it was sought to be defended by relying upon
the certificates issued in their favour by NCVT. According to Mr Krishna,
since NCVT had issued NACs in favour of both Mr Hemant Kumar and Mr
Rajendra Kumar Saini qua the specific trade i.e., Electronic Mechanic, they
had been properly appointed by DMRC.
11.4. In this context, Mr Krishna also relied upon a circular dated
26.08.1999, issued by GOI, Ministry of Labour, Directorate General of
Employment & Training to hammer home the point that a NAC, awarded
qua a particular trade, had more weight than an NTC awarded vis-a-vis the
same trade.
11.5. It was stressed by Mr Krishna that all vacancies advertised in 2015
qua the subject post had been filled up, and therefore, if any relief is granted
to the petitioner, it would result in disrupting the seniority list; which stood
settled. The argument was that in the absence of vacancies at this stage, no
relief could be granted in favour of the petitioner. In support of this plea,
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reliance was placed by Mr Krishna on the judgment of the Supreme Court
rendered in Ashwani Kumar v. State of Bihar, (1997) 2 SCC 1.
11.5(a) We must, at this juncture, also take note of the fact that in the course
of the hearing, we had put a specific query to Mr Krishna as to whether any
vacancies were available. We were informed that although five vacancies
were available, they had arisen on account of the demise of incumbents, and
were required to be filled up by persons engaged on a contractual basis,
whose employment otherwise had to be regularised.
11.6. Besides this, Mr Krishna submitted that merely because the
"Mechanic - Radio & TV" trade was considered for appointment to the
Maintainer-Electronic Mechanic in the advertisement taken out by the
DMRC on 27.01.2018 [hereafter referred to as '2018 Advertisement'], that
by itself would not confer any right on the petitioner to lay claim to the
vacancies that were the subject matter of the 2015 advertisement. In support
of this submission, reliance was placed on the judgment rendered in State of
Rajasthan v. R. Dayal, (1997) 10 SCC 419
Analysis and reasons:
12. Having heard the learned counsel for the parties and examined the
record, what emerges is as follows :
12.1. The petitioner had applied qua the subject post against the 2015
advertisement, issued by DMRC.
12.2. Concededly, the petitioner had indicated in his online application
form that he possessed a trade certificate in "Electronic Mechanic"; which
was the qualification prescribed in the 2015 advertisement vis-a-vis the
subject post. It was only at the stage of document verification, that it
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emerged that the petitioner did not possess the prescribed qualification.
Admittedly, the trade qualification that the petitioner possesses concerns
"Mechanic - Radio & TV".
12.3. The 2015 advertisement distinctly adverts to the number of vacancies
that arose in each discipline/trade qua the post of the Maintainer[NE10].
Illustratively qua Maintainer-Electrician [post code NE10(A)], the number
of vacancies advertised were 226; while for Maintainer-Fitter [post code
NE10(B)], the number of vacancies advertised was 126. Likewise, for the
subject post (i.e., Maintainer-Electronic Mechanic) [post code NE10(C)], the
number of vacancies advertised, as noticed above, were 246 and, lastly, for
Maintainer-Refrigerator and Air Conditioner Mechanic [post code
NE10(D)], the number of vacancies advertised was 36.
12.4. Therefore, the DMRC, in no uncertain terms, made its intent clear as
to the discipline/trade in which it was desirous of recruiting eligible
candidates. The discipline/trade in which the petitioner has obtained
proficiency is concededly "Mechanic - Radio & TV". Vacancies against this
discipline/trade were not advertised by DMRC. Therefore, the petitioner's
submission that he should have been considered for appointment to the
subject post, is a completely untenable argument.
13. The two communications on which the petitioner sought to place
reliance i.e., the GOI letter dated 26.09.2016 and the GNCTD
communication dated 11.08.2016, would also not help the cause of the
petitioner. The reason for this is plain. A perusal of the communication
dated 26.09.2016 would show that all that GOI wanted to convey is that the
two trades [i.e., "Mechanic - Radio & TV" and "Electronic Mechanic"], are
covered under the ITI Training Courses, which, in turn, are conducted in
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consonance with the Craftsmen Training Scheme. This letter, which is
addressed to the DMRC, is only indicative of the fact that the duration of the
training being imparted for the aforementioned trades is the same [i.e., two
years], and that both trades fall under what is described as "Electronic
group". The relevant extract of the said communication is set forth below:
"The trade "Mech. Radio & TV" and "Electronic Mechanic"
both are covered under ITI training Courses under Craftsmen
Training Scheme and have same duration of Training i.e. 2 years.
Both trades are covered under Electronic group of trades.
Moreover, both the certificates are recognized for the purpose of
recruitment to subordinate posts and services under the Central
Government." [Emphasis is ours.]
13.1. Likewise, the communication dated 11.08.2016 issued by the
GNCTD, merely states that the two trades have the same duration and fall
under the family of i.e, the genus of "Electronic Mechanic and Servicers".
This communication reads as follows :
"TO WHOM IT MAY CONCERN
It is certified that the trade "Radio & Television Mechanic"
and "Electronics Mechanic" both have same duration of training (i.e. 4
Semester or 2 Years) and classified in the same family of Electronics
Mechanic and servicers vide National Classification of Occupations-2004,
Page-97 (enclosed). Same may be verified from website of National Skill
Development Corporation at www.nsdcindia.org." [Emphasis is ours]
13.2. These communications, thus, clearly demonstrate that while both
"Electronic Mechanic" and "Mechanic - Radio & TV" are part of the same
genus, that is, "Electronics Mechanic and Sevicers", they are two different
species i.e., trades. The National Classification of Occupations - 2004 code
structure [in short 'NCO 2004'], appended to the GNCTD communication
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dated 11.08.2016 makes this amply clear; the same is extracted hereafter :
Family 7243 Electronic Mechanics and Servicers
7243.10 Electronic Mechanic
7243.20 Radar Mechanic
7243.30 X-Ray Mechanic
7243.40 Television Installation Man
7243.45 Cable Television Installer
7243.50 Television Service and Repairman
7243.60 Radio Technician (Radio
Manufacturing)
7243.70 Radio Mechanic
7243.75 Radio Craftsman, Installation
7243.80 Radio Craftsman, Maintenance
7243.90 Electronic Mechanics and Services,
Other
[Emphasis is ours.]
13.3. Thus, the argument advanced by Mr Saxena that the two trades [i.e.,
"Mechanic- Radio & TV" and "Electronic Mechanic"] are the same and/or
interchangeable, is an argument that we are not persuaded to accept.
14. This brings us to the other limb of the argument put forth by Mr
Saxena, which is that although Mr Hemant Kumar and Mr Rajendra Kumar
Saini possessed the same qualifications as the petitioner, they were
appointed to the subject post while the petitioner was excluded from
consideration by DMRC.
14.1. As noticed above, the DMRC, while considering the candidature of
Mr Hemant Kumar and Mr Rajendra Kumar Saini for the subject post, had
taken into account the fact that they had obtained the NAC from NCVT qua
the prescribed trade i.e., "Electronic Mechanic".
14.2. A perusal of the NACs in both cases i.e., in the case of Mr Hemant
Kumar and Mr Rajendra Kumar Saini, would show that they have
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undergone a one-year training programme in "Electronics (Mechanic)"
trade, qua which the trade test was conducted by NCVT. It is pertinent to
note that both Mr Hemant Kumar and Mr Rajendra Kumar Saini also
possess an NTC in "Mechanic - Radio & TV", which is also, issued by
NCVT.
14.3. The DMRC, as noticed during the narration of facts concerning the
instant case, relied upon a circular dated 26.08.1999 in support of its stand,
that GOI gives more credence i.e., weight, to a NAC as compared to an
NTC. The relevant extract from the said circular is set forth hereafter :
" In this regard Government of India has issued guidelines
vide letter No.DGET - 54 (1) /71 - AP dated 19 July 1971
which is reproduced as - "Government of India has
recognised the National Apprenticeship Certificate as of a
higher grade, than the National Trade Certificate. The
employer while fixing minimum qualifications and
experience for [a] certain post may give weightage to the
period of experience equal to the number of years spent by an
apprentice while undergoing Apprenticeship Training after
completion of training in Industrial Training Institutes."
It is further clarified that NAC awarded for a particular
trade is recognised as of higher grade than the NTC
awarded in the same particular trade. (e.g. NAC awarded
for Fitter trade will be of [a] higher grade than NTC
awarded for Fitter trade)." [ Emphasis is ours]
14.4. The argument of Mr Saxena that the NAC is not the same as one
possessing a qualification in the prescribed trade i.e., "Electronic
Mechanic"; is a submission that is not backed by relevant material. It is quite
possible that there is an overlap in the curricula curated for the two trades
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i.e., "Electronic Mechanic" and "Mechanic - Radio & TV", and that the
difference perhaps lies in certain portions of the course content as well as in
the practical training accorded qua the two trades. However, the fact that
DMRC has chosen to appoint Mr Hemant Kumar and Mr Rajendra Kumar
Saini based on the NAC issued in their favour by NCVT, facially establishes
that they were decidedly more suitable for the subject post than the
petitioner.
14.5. As indicated above, this plea advanced by the petitioner cannot be
examined any further as it is deficient in material particulars. The difficulty
is compounded by the fact that neither Mr Hemant Kumar nor Mr Rajendra
Kumar Saini was arrayed as a party, either before the Tribunal or this court.
14.6. In any event, even according to the petitioner, both Mr Hemant
Kumar and Mr Rajendra Kumar Saini were placed higher in the merit list
and given the fact that against the 2015 advertisement, all vacancies have
been filled-up (save and except those which arose on account of the demise
of incumbents, and, as per Mr Krishna's stance, had to be filled up by
persons who had been engaged on contractual basis and whose employment
had to be regularised), this plea of the petitioner cannot be taken any further.
15. This brings us to the last submission advanced on behalf of the
petitioner, which is, that in the 2018 advertisement issued by DMRC qua the
subject post i.e., the post of "Maintainer - Electronic Mechanic", the
essential qualifications prescribed, inter alia, advert both to "Electronic
Mechanic" and "Radio & TV."
15.1. In our view, this emanates from a misreading of the 2018
advertisement. As noticed hereinabove, the genus i.e., "Electronics
Mechanic and Servicers", as per the NCO 2004, comprises several trades
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including "Electronic Mechanic" and "Mechanic- Radio & TV."
15.2. Thus, the mileage sought to be drawn by the petitioner on account of
the fact that several trades including "Electronic Mechanic" and "Radio &
TV" are shown as prescribed essential qualifications for the subject post, in
the 2018 advertisement- for the reason given above, will not come to the aid
of the petitioner.
15.3. In any event, the position which arose in 2015 was markedly different
than that which emerged in 2018. Therefore, since we are, even according to
the petitioner, concerned with the 2015 advertisement and not the 2018
advertisement issued by the DMRC, no advantage can accrue to the
petitioner on this score.
Conclusion:
16. Thus, for the foregoing reasons, we do not find any merit in the writ
petition.
17. The writ petition is, accordingly, dismissed.
18. Parties will, however, bear their own costs.
RAJIV SHAKDHER, J
TALWANT SINGH, J
MARCH 25, 2022/aj
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