Hiteshkumar Vinodchandra Vala vs Gujarat Urja Vikas Nigam Ltd.
2021 Latest Caselaw 5906 Guj

      C/SCA/905/2020                                ORDER DATED: 14/06/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 905 of 2020
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 3181 of 2020
================================================================
             HITESHKUMAR VINODCHANDRA VALA & 2 other(s)
                              Versus
              GUJARAT URJA VIKAS NIGAM LTD. & 5 other(s)
================================================================
Appearance:
MR GM AMIN(124) for the Petitioner(s) No. 1,2,3
MS SHALU P RAVAL(9847) for the Petitioner(s) No. 1,2,3
MR.ROHAN NI. SHAH, AGP, (1) for the Respondent(s) No. 2
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1,3,4,5,6
===============================================================
 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 14/06/2021
                                ORAL ORDER

[1] This petition under Article 226 of the Constitution of India is filed by the petitioners seeing direction to quash and set aside the communication dated 25.11.2019 by which qualification was prescribed for the post of Vidyut Sahayak (Junior Assistant).

[2] It is the case of the petitioners that the petitioners who are having qualification of engineering are barred from participating in the recruitment process to the post of Vidyut Sahayak (Junior Assistant) and therefore, the educational qualification fixed under the impugned communication is not a reasonable criteria to match with the requirement of the post. It is also contended that the petitioners who are having qualification higher than the qualification prescribed cannot be treated ineligible.

[3] As the petitioners are raising common questions and issues, at the request of learned advocates for the parties, both the petitions are taken up for joint hearing and disposal. The facts are recorded from Special Civil Application No.905 of 2020.

       C/SCA/905/2020                                                  ORDER DATED: 14/06/2021



[4]    Learned         advocate        for     the     petitioners         submit       that      the

petitioners are having educational qualification of Bachelor of Engineering in Computer, Electrical, Mechanical Engineering etc. respectively. The petitioners had applied for the post of Vidyut Sahayak in the year 2017 and 2018 in response to the public advertisement. The recruitment drive was for the purpose of filling up the vacancies by Gujarat Urja Vikas Nigam Limited which had advertised the posts on behalf of sister companies like UGVCL, DGVCL, MGVCL, PGVCL and GSECL. It is submitted that in the advertisement in the year 2017 for this post, the only educational qualification was full-time graduate from a recognized University. Again in the year 2018, the educational qualification was the same as in the previous year. However, in the year 2019, the advertisement prescribed the qualification for the post of Vidyut Sahayak (Junior Assistant) as full-time B.A., B.com, B.Sc., BCA and BBA from recognized University. The petitioners had applied pursuant to this advertisement however, are treated to be ineligible on account of lack of qualification as prescribed in the advertisement.

[4.1] In this regard, it is submitted that as the advertisement of the year 2017 and 2018 prescribed the educational qualification only to be full-time graduate, the petitioners were eligible to appear in the examination and when the petitioners had applied, at that time, the petitioners had lost chance of employment. It is also submitted that there was no reason for the respondents to cancel the recruitment process which was started in the year 2017 and 2018 and thereafter, in the recruitment process initiated in the year 2019 amend the nature of qualification for the post.

[4.2] It is submitted that the post of Vidyut Sahayak is not a highly technical post and does not require proficiency in any technical discipline. The job profile involves a clerical work like recording of meters and preparations of bills, vouchers etc. and therefore, for

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such posts, the educational qualification of the petitioners cannot act as ineligibility.

[4.3] Learned advocate for the petitioners submitted that the qualification of all the petitioners is higher than the qualification prescribed for the post. Therefore, the higher qualification of the petitioners cannot be considered as a disqualification. In this regard reliance is placed upon the decision in the case of Mohd. Riazul Usman Gani and others v/s. District & Sessions Judge, Nagarpur and others, reported in (2000) 2 SCC 606. Learned advocate has drawn attention of this Court to para-20 of the judgment and submitted that the qualification higher than the prescribed minimum qualification, cannot act as disadvantage to the candidates.

[4.4] Learned advocate has also relied upon the decision in the case of P.M.Latha and another v/s. State of Kerala and others, reported in (2003) 3 SCC 541, wherein attention is drawn to para-

10. The petitioners have then relied upon the decision of Punjab and Haryana High Court in the case of Sudha v/s. State of Haryana and others, reported in LAWS (P&H) 2010 10 249 to submit that the employer has to prescribe the qualification which would be necessary to the peculiar needs of the post, still the employer is competent to make appointment of a person having higher qualification than one prescribed for the post. Lastly, the petitioners have relied upon the decision in the case of State of Uttarakhand and others v/s. Deep Chandra Tewari and another, reported in (2013) 15 SCC 557 to contend that the candidate who is possessing higher qualification ordinarily would be deemed to have fulfilled lower qualification.

[5] As against this, learned advocate for the respondent- companies submitted that there is fallacy in the contention of the petitioners about the petitioners having higher qualification. It is

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submitted that the required qualifications for Vidyut Sahayak (Junior Engineer), Vidyut Sahayak (Plant Attendant Grade-I) etc. were Engineering from recognized University or Diploma in Mechanical/Electrical Engineering, whereas educational qualification for Vidyut Sahayak (Junior Assistant) was prescribed as B.A., B.Com, B.Sc., BBA and BCA from recognized University and therefore, the requirement of educational qualification to the post of Vidyut Sahayak (Junior Assistant) is altogether from a different discipline and therefore, engineering degree cannot be termed to be the degree higher than the degree of B.A., B.Com, B.Sc., BBA and BCA. It is submitted that the duty of Vidyut Sahayak (Junior Assistant) was prescribed under the meeting of the Board of Directors and has received approval from the State Government which is the principal employer, by communication dated 20.11.2019. The Board has taken into consideration the requirement of the work required for the appointed candidates to the post and with due deliberation has arrived at a conclusion for the required qualification.

[6] It is submitted that GSO since 2004 has prescribed the educational qualification for Vidyut Sahayak (Junior Assistant) which is prescribed even in the present advertisement. So, it cannot be said that abruptly, the educational qualification has been changed to the detriment of the petitioners.

[6.1] Referring to the affidavit-in-reply, it is submitted that there are various reasons not to allow the candidates possessing different qualification from different disciplines to participate for the post of Junior Assistant. It often happens that a person with qualification of B.E., B.Tech., if selected as Junior Engineer and becomes Deputy Engineer who heads sub-division, would become superior officer of the person holding post of Junior Assistant who may be graduate from engineering field. In such case, there would not only be conflict of ego and interest, public administration would be adversely affected and public at large would be the ultimate sufferer. It quite

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happens that person selected for the post of Junior Assistant possessing B.E., B.Tech. Qualification, leave the job immediately after joining, leaving the concerned sub-division high and dry. It is also a matter of fact and record that candidates graduated from B.E., B.Tech disciplines are having better avenues in technical field whereas persons graduated from B.A., B.Com, B.Sc or B.B.A. and B.C.A. shall have limited avenues and they cannot apply for the posts in technical nature. It is submitted that for the post of Vidyut Sahayak (Junior Engineer), qualification prescribed is B.E.. B.Tech in concerned discipline. Thus, with various reasons and by using its expertise in the field, the policy makers i.e. members of the Board in the present case, have decided to amend GSO 3 and thereby entry to the post of Junior Assistant (Vidyut Sahayak) was restricted only to five disciplines as mentioned in Resolution dated 24.12.2018. It is submitted that GUVNL, having passed Board Resolution, approached the Government of Gujarat and the Government of Gujarat vide letter dated 20.11.2019 approved the said Board Resolution.

[7] It is further submitted that the employer is the best person to prescribe the educational qualification for the post and for that purpose, reliance is placed upon the decision in the case of Zahoor Ahmad Rather and others v/s. Javid Ahmad Dar and others, reported in (2019) 2 SCC 404 and order in the case of Commissioner, Corporation of Madras v/s. Madras Corporation Teachers' Mandram and others, reported in (1997) 1 SCC 253.

[8] The Court has heard learned advocates for the parties and perused the documents placed on record. The petitioners were desirous to seek employment with the respondent-Government companies as Vidyut Sahayak(Junior Assistant). It appears that initially advertisement was issued in the year 2017 for the aforesaid post with fixed remuneration. The appointment initially was made for a period of three years and thereafter, for being considered for

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appointment to the post on regular establishment on satisfactory completion of three years. The educational qualification prescribed was full-time graduate in regular mode from recognized University and no minimum percentage was prescribed. The application was to be made on-line and thereafter, candidates were to be shortlisted on the basis of written test and prepared the select list on merits. It appears that the recruitment process did not progress any further for the reason which may not be relevant for the purpose of this case nor has the petitioners at any stage challenged the action of abandoning the recruitment process. Similarly, in the year 2018 also with similar stipulation, the advertisement was issued for the post of Vidyut Sahayak (Junior Assistant), but the same met the fate as earlier recruitment process as for reasons not relevant for our purpose, the recruitment process did not progress.

[8.1] Thereafter, for the same post, advertisement was issued in the year 2019 inviting applications where the fixed remuneration was prescribed for the first year Rs.17,500/- per month and incremental remuneration for 2nd to 5th year shall be as per rules and initial appointment for a period of five years and scope of being considered for appointment on the same post on regular establishment on satisfactory completion of five years. In this advertisement, the qualification prescribed was full-time B.A., B.Com, B.Sc., BBA and BCA in regular mode from recognized University with minimum 55% in final year.

[8.2] The advertisement stipulated the scope of work for the candidates mainly for meter reading, billing works, and other back office operations at Field Offices and candidates were to be posted in the Filed Offices like Sub-Divisional Offices.

[9] The Court has perused the extracts of 92nd Meeting of the Board of Directors of Gujarat Urja Vikas Nigam Limited held on 24 th December, 2018, wherein the agenda was regarding all graduates

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to compete for the post of Vidyut Sahayak (Junior Assistant). It appears that after due deliberation, resolution came to be passed which is recorded as under:-

"RESOLVED THAT the Board perused the note regarding restoration of Minimum Percentage Criteria in Open Market Recruitment Cadres and allowing all Graduates to compete for the pot Vidyut Sahaka (Junior Assistant) and the Board decided as under subject to approval of the Govt. of Gujarat.

(i) keeping in view the practical difficulties faced by the Subsidiary Companies in conducting examination and allied issues related to that as well as the fact that other leading State Power Utilities and State PSUs followed Minimum Percentage Criteria in Open Market Recruitment Cadres, Minimum Percentage Criteria in Open Market Recruitment Cadres laid down vide GSO No.3 dtd. 19.01.2015 may be restored: and

(ii) The qualification for the post of Vidyut Sahayak (Junior Assistant) shall be graduate in only 05(five) disciplines viz: BA, B.Com, B.Sc. BBA & BCA."

[10] It is pertinent to observe that this decision of the Board of Directors has never been the subject matter of challenge even before this Court nor the procedure adopted in prescribing the educational qualification has been challenged.

[11] It is argued that for the very posts which were advertised in the year 2017 and 2018 there was no educational qualification as is done in the present advertisement in the year 2019. Therefore, when the respondents have themselves thought it fit to prescribe only the minimum qualification of a graduate from a recognized University for the very post in the year 2017 and 2018, there was no reason to introduce graduate from specific branches for the advertisement in the year 2019. In this connection, it is observed from the documents on record that the respondent-companies came into effect from 10th December, 2004 under the Government Resolution No.GEB-1104--7318-K, in Clause 11, the Board of

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Directors were empowered to decide activities relating to administration including recruitment and the same to be consistent with the policy of the State Government. Since 06.04.2004, the post of Junior Assistant as it existed carried the educational qualification B.A., B.Com, B.Sc. Or B.B.A. and consistently, the same educational qualification has been followed. The nomenclature of the post has changed over the period and now apparently the Junior Assistant is named as Vidyut Sahayak (Junior Assistant). The educational qualification continuous to be the same. At no stage, there has been challenged since 2004 to this educational qualification and has been consistently accepted over the period for the recruitment purpose. Reference can also be made to the General Standing Order No.3 dated 19.01.2015 (Annexure-R6), wherein also as an Annexure to GSO the prescribed posts for direct recruitment which includes Vidyut Sahayak (Junior Assistant), wherein the qualification of B.A., B.Com, B.Sc. Or B.B.A from a recognized University. This GSO has never been subject matter of challenge. Therefore, the recruitment pertains to the advertisement in the year 2017 and 2018 prescribing the educational qualification as any graduate appears to be a abression and in all probabilities, the recruitment under the aforesaid two advertisements under the year 2017 and 2018 did not proceed any further and were in fact cancelled. Hence, the argument of the petitioners on this ground may also not be accepted.

[12] It is apparent that the respondent-companies have different categories of posts even under the head of Vidyut Sahayak, which are as under:-

I.VIDYUT SAHAYAK (JUNIOR ENGINEER)

Required Qualification Degree in Engineering from recognized University as per requirement.

Average % in last two Semesters.           60% for UR Category
                                           55% for Reserved Category






      C/SCA/905/2020                                     ORDER DATED: 14/06/2021



             II. VIDYUT SAHAYAK (PLANT ATTENDANT GRADE I)

Required Qualification                     Diploma     in      Mechanical/Electrical
                                           Engineering.

Average % in last year.                    60% for UR Category
                                           55% for Reserved Category same as
                                           present.

                      III.VIDYUT SAHAYAK (JUNIOR ASSISTANT)

Required Qualification                     B.A., B.Com, B.Sc., BBA & BCA from
                                           recognized University.

Average % in last year                     60% for UR Category
                                           55% for Reserved Category..



[13] The      aforesaid      indicates   that     the   required       educational

qualification for aforementioned two categories namely Vidyut Sahayak (Junior Engineer) and Vidyut Sahayak (Plant Attendant Grade 1) has prescribed degree in Engineering and Diploma in Engineering as required qualification. Considering the technical nature of work attached to such post and in the same manner considering the nature of work attached to the post of Vidyut Sahayak (Junior Assistant), the required educational qualification is prescribed.

[14] It is also pertinent to observe that the proposal which was forwarded to the State Government was approved by the State Government under its communication dated 20.11.2019, wherein para-2 reads as under:-

"2. In this regard, I am directed to state that GUVNL and its Subsidiary Companies are allowed to carry out their recruitment for entry level cadres from Open Market, subject to following conditions:-

(i) Minimum Percentage Criteria of 55% for all category in the open market recruitment in various cadres.

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(ii) Only Five disciplines viz. B.A., B.Com, B.Sc., B.C.A., and B.B.A. are allowed to applpy for the post of Vidyut Sahayak (Junior Assistant)."

[15] The Court is therefore, of the opinion that the respondent- companies being the employer and well aware of the requirement of the work attached to the post has prescribed the qualification, which does not appear to be irrelevant or irrational.

[16] The Punjab and Haryana High Court in the case of Sudha

(Supra), has held in para-7 as under:-

"7. I have perused the ration of law, which would emerge from this decision.. Though the Full Bench has only held that employer State would be in law entitled to prescribe the qualification which would necessary as tailored to the peculiar needs of the particular posts or service. It is also observed that employer alone would know that are the specialties and conditions of service or post for which the incumbent is required. It is, thus, held that the discretion in seeking right man for the right job would be left relatively unfettered. The observation also is that no doctrine rule can be laid down that a technically higher educational qualification necessarily better or more advantageous for the particular needs of a post for which the employer-State has acquired (sic.) under qualification."

[17] The Apex Court in the case of Zahoor Ahmad Rather(Supra) has held in para-27 as under:-

"27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The state is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision making. The state as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti KK must be understood in the context of a

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specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti KK turned. "

[18] Considering the aforesaid, the fixing of educational qualification for the post of Vidyut Sahayak (Junior Assistant), respondents have undertaken necessary exercise and as suited to the requirement of the post, the educational qualification is prescribed. The contention of the petitioners that the educational qualification of the petitioners is higher than the educational qualification prescribed for the post, cannot be accepted as the educational qualification prescribed for the post in question is of a different stream related to Commerce and Administration, whereas the educational qualification of the petitioners is from Engineering stream. It is also pertinent to observe that for the candidates possessing qualification of Engineering stream, avenues for recruitment are open in the same cadre of Vidyut Sahayak under the heading of Vidyut Sahayak (Junior Engineer) and Vidyut Sahayak (Plant Attendant Grade 1). These avenues obviously are not available to the candidates who are having educational qualification prescribed for the post of Vidyut Sahayak (Junior Assistant). In view of the aforesaid also, the Court is of the view that there is no illegality in prescribing the educational qualification and the recruitment process adopted by the respondents.

[19] Reliance can also be placed upon the order of the Apex Court in the case of Commissioner, Corporation of Madras (Supra) where the Supreme Court considering the contention that creation of posts and prescription of qualifications are the legal policy of the Government or the executive policy of the Government. To this question, the Supreme Court has stated that it is well settled legal position that it is the legal or executive policy of the Government to create post or to prescribe the qualification for the post. The Court

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or Tribunal is devoid of power to give such direction. The relief sought by the petitioners in this petitions is also seeking direction to hold that the educational qualification prescribed for the particular post is prayed to be set aside. This exercise in the facts of the case, the Court is not inclined to undertake.

[20] In view of the aforesaid, the Court finds no reason to interfere with the recruitment procedure especially educational qualification prescribed for the post of Vidyut Sahayak (Junior Assistant) which is challenged by the petitioners in the petitions. The petitions therefore, deserve to be and the same are hereby dismissed. Notice is discharged.

(A.Y. KOGJE, J) SIDDHARTH