Rakeshkumar Dineshbhai ... vs State Of Gujarat
2023 Latest Caselaw 2634 Guj

    C/SCA/4899/2019                                CAV JUDGMENT DATED: 29/03/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 4899 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE MAUNA M. BHATT                                  sd/-

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1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?

2 To be referred to the Reporter or not ? YES

3 Whether their Lordships wish to see the fair copy NO of the judgment ?

4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== RAKESHKUMAR DINESHBHAI CHAUDHARY Versus STATE OF GUJARAT ========================================================== Appearance:

MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1

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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

Date : 29/03/2023

CAV JUDGMENT

1. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Sahil Trivedi waives service of notice of rule on behalf of the respondent - State.

C/SCA/4899/2019 CAV JUDGMENT DATED: 29/03/2023

2. This petition under Article 226 of the Constitution of India is filed challenging the action on the part of the State Government in not considering the case of the petitioner for appointment to the post of Wireman, Class-III.

3. The brief facts are that, pursuant to the advertisement dated 26.07.2017, the petitioner herein applied for the post of Wireman. The qualification prescribed in the advertisement to become eligible for the post of Wireman Class-III was "A person having minimum two years certificate course of Wireman or Electrician obtained from any of the Industrial Training Institutes established by the Government". The petitioner appeared in the examination and secured 65.134 marks. The candidature of the petitioner was rejected on the ground of not possessing the requisite educational qualification prescribed as per the advertisement dated 26.07.2017, aggrieved by which the present petition is filed.

4. Heard learned advocate Mr. T. R. Mishra for the petitioner and learned Assistant Government Pleader Mr. Sahil Trivedi for the respondent - State.

5. Appearing for the petitioner Learned advocate Mr. T. R. Mishra submitted that the petitioner at the time of application was possessing qualification of Diploma in Electrical Engineering. The qualification of diploma in Electrical Engineering being higher qualification, it includes the lower qualification prescribed in the advertisement of Wireman and

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therefore the decision taken by the respondent State, in rejecting the candidature of the petitioner on the ground of not possessing the requisite qualification is erroneous. The qualification prescribed for the post of wireman, in the advertisement dated 26.07.2017 was "A person having minimum two years certificate course of Wireman or Electrician obtained from any of the Industrial Training Institutes established by the Government". As the petitioner was possessing Diploma in Electrical Engineering (Need Base) from an institution recognized by state, which is higher qualification, the rejection of candidature is wholly erroneous, because higher qualification presupposes inclusion of lower qualification. He further submitted that the candidates having lesser merits have been appointed and therefore the action of the respondent authorities being illegal deserves to be quashed and set aside. In support of his submissions Mr. Mishra relied upon the decision of the co-ordinate bench of this Court dated 13.12.2022 in the case of Barot Chiragkumar Rameshbhai and Anr V/s Gujarat Panchayat Service Selection Board and Ors, in Special Civil Application No. 459 of 2018.

6. On the other hand, learned Assistant Government Pleader Mr. Sahil Trivedi for the respondent - State relying upon the affidavit, submitted that in the Recruitment Rules, Road and Building Department, Gandhinagar, the eligibility for the post of Wireman, Class-III, is prescribed as under:

           "(b)           A candidate shall Possess,






  C/SCA/4899/2019                             CAV JUDGMENT DATED: 29/03/2023

(I) Minimum two years certificate course of Wireman or Electrician obtained from any of the Industrial Training Institutes established by the Government;

(II) Possess the basic knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967;

(III) Possess adequate knowledge of Gujarat or Hindi or both."

Therefore, admittedly the petitioner is not possessing the qualification prescribed in the Recruitment Rules for the post of Wireman, Class-III. Learned Assistant Government Pleader further submitted that to be eligible to participate in the recruitment process, the petitioner filled incorrect details in the column of educational qualification of his online application form. Though he was having Diploma in Electrical Engineering, against the column of examination passed by the candidate, he wrote 2-years Electrician Certificate Course from Govt or Govt. recognised ITI, and therefore, at the time of document verification he gave an undertaking that wrong details were filled by him on account of not having adequate knowledge and therefore, the decision of the authority would be binding to him. Therefore, now it is not open for him to raise such issue. He submitted to reject the petition.

7. Heard learned advocates for the respective parties, perused the records and considered the authority relied upon by the petitioner.

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7.1 The issue involved in this petition is whether the qualification prescribed is to be considered, or a higher qualification of the same branch, can be considered and whether the rejection of candidature of the petitioner by the respondent is illegal ?

7.2 It is not in dispute that in the advertisement dated 26.07.2017, to be eligible for the post of Wireman, Class-III, the educational qualification prescribed was 'possess minimum two years certificate course of Wireman or Electrician, obtained from any of the Industrial Training Institutes established by the Government', whereas, the petitioner was possessing qualification of Diploma in Electrical Engineering (Need Base) from Technical Examination Board (TEB), Gujarat State, Gandhinagar, which is a Government recognized institute.

7.3 At this stage, it would be appropriate to reproduce the Recruitment Rules, prescribed for the post of Wireman, Class- III, which read as under:-

"1. These rules may be called the Wireman ClassIII, in the subordinate service of Roads and Buildings Department, Recruitment Rules, 2016.

2. Appointment to the post of Wireman Class III, in the subordinate services of the Roads and Building Department, Gujarat State shall be made by direct selection.

3. To be eligible for appointment by direct selection to the post mentioned in rule 2, a

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candidate shall, -

(a) not be more than 33 years of age:

Provided that the upper age limit may be relaxed in favour of a candidate who is already in the service of the Government of Gujarat in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967.

           (b)    Possess,

           (I)    Minimum two years certificate
           course    of  Wireman    or   Electrician
           obtained from any of the Industrial

Training Institutes established by the Government;

(II) Possess the basic knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967;

(III) Possess adequate knowledge of Gujarat or Hindi or both.

4.The candidate appointment by direct selection shall require to get himself registered with the Secretary Licensing Board of Energy and Petrochemicals Department of the Government of Gujarat at the time of appointment, if he is not so registered.

5.The provisions of rules 9 A of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 shall be applicable in respect of a candidate appointed by direct

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selection.

6.The candidate appointed by direct selection shall have to undergo such training and to pass such examination as may be prescribed by the Government.

7.The candidate appointed by direct selection shall be require to furnish a security and surety bond in such form, for such amount and for such period as may be prescribed by the Government."

From a plain reading of the Recruitment Rules, it is noticed that there was only one qualification prescribed for the post of Wireman, Class-III for appointment by direct selection. Here is not a case where some other or equivalent qualification was prescribed.

7.4 It would be appropriate to consider few decisions of the Hon'ble Supreme Court.

7.5 In the decision of Hon'ble Supreme Court in the case of Jyoti K. K. V/s Kerala Public Service Commission reported in (2010) 15 SCC 596, it has been held as under: -

"9. It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for that post in order

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to attract that part of the rule to the effect that such of those higher qualifications which presuppose the acquisition of the lower qualifications prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far. Under the relevant rules, for the post of assistant engineer, degree in electrical engineering of Kerala University or other equivalent qualification recognized or equivalent thereto has been prescribed. For a higher post when a direct recruitment has to be held, the qualification that has to be obtained, obviously gives an indication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of sub-engineer.

In that view of the matter the qualification of degree in electrical engineering presupposes the acquisition of the lower qualification of diploma in that subject prescribed for the post, shall be considered to be sufficient for that post. In the event the government is of the view that only diploma holders should have applied to post of subengineers but not all those who possess higher qualifications, either this rule should have excluded in respect of candidates who possess higher qualifications or the position should have been made clear that degree holder shall not be eligible to apply for such post. When that position is not clear but on the other hand rules do not disqualify per se the holders of higher qualifications in the same faculty, it becomes

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clear that the rule could be understood in an appropriate manner as stated above. In that view of the matter the order of the High Court cannot be sustained. In this case we are not concerned with the question whether all those who possess such qualifications could have applied or not. When statutory rules have been published and those rules are applicable, it presupposes that everyone concerned with such appointments will be aware of such rules or make himself aware of the rules before making appropriate applications. The High Court, therefore, is not justified in holding that recruitment of appellants would amount to fraud on the public."

Applying the same principle, in my opinion when the specific qualification has been set out under the relevant Rules, the same cannot be in any manner whittled down and different qualification cannot be adopted. In the present case as only single qualification is prescribed, permitting candidate with higher qualification, in my opinion, would amount to whittling down the qualification prescribed and adopting a different qualification.

7.6 In the decision of Zahoor Ahmad Rather and Ors V/s. Sheikh Imtiyaz Ahmad and Ors reported in (2019) 2 SCC 404, it has been held as under;

"26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti KK in the subsequent decision in Anita (supra). The decision in Jyoti KK turned on the provisions of Rule 10(a)(ii).

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Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily pre-supposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The state as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the state, as the recruiting authority, to determine. The decision in Jyoti KK turned on a specific statutory rule under which the holding of a higher qualification could presuppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench of the High Court was justified in reversing the judgment of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision of the Division Bench.

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

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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 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."

7.7 In another decision of Hon'ble Supreme Court in the case of Chief Manager, Punjab National Bank and Anr. V/s. Anit Kumar Das reported in (2021) 12 SCC 80, the Hon'ble Supreme Court held as under

"Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it.

Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at

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the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts. In the present case, prescribing the eligibility criteria/educational qualification that a graduate candidate shall not be eligible and the candidate must have passed 12th standard is justified and as observed hereinabove, it is a conscious decision taken by the Bank which is in force since 2008. Therefore, the High Court has clearly erred in directing the appellant Bank to allow the respondent-original writ petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement"

Therefore, applying the same principle for 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 to 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 Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications.

8. On more eventuality which cannot be ignored is that there are many Diploma Holders who might not have applied on account of the specific qualification being prescribed

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pursuant to the Recruitment Rules for the post of Wireman, Class-III.

9 Now, considering the decision relied upon by learned advocate Mr. Mishra, in Special Civil Application No. 459 of 2018, in that decision, the qualification prescribed was as under:

"(b) possess a Diploma in Civil Engineering obtained from Technical Examination Board or any of the Universities or institutions established or incorporated by or under the Central or State Act in India; or any other educational institution recognized as such or declared as deemed to be a University under section 3 of the University Grants Commission Act, 1956 or an equivalent qualification recognized by the Government."

Therefore, as the equivalent qualification recognized by the Government was prescribed, in facts of that case, more particularly on the ground that the candidate was allowed to participate in the selection process, the petition was allowed.

10. Therefore, in this case only one qualification was prescribed. Further, Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. Moreover, at the time of document verification the petitioner conceded to the fact that due to lack of adequate knowledge, he filled the wrong details and the decision of the authority would be binding to him. Therefore, in my opinion the respondent - State is correct in rejecting the

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candidature of the petitioner on the ground of 'disqualified as do not fulfill required educational qualification as per Recruitment Rules'.

11. Accordingly, this petition is required to be dismissed and is accordingly dismissed. Rule is discharged. No order as to cost

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(MAUNA M. BHATT,J) SHRIJIT PILLAI