Himachal Pradesh High Court
Chand vs Unknown on 4 January, 2022
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 4th DAY OF JANUARY, 2022
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
Between:-
r to
CIVIL WRIT PETITION NO. 5826 OF 2021
RAVISH THAKUR S/O SHRI TEK
CHAND, R/O CHANDRA VILLA,
THAKUR BAGH, ANNADALE,
SHIMLA (HP)
...PETITIONER
(BY SH. SHRAWAN DOGRA, SR.
ADVOCATE WITH SH. BHARAT
THAKUR AND SH. TEJASVI
DOGRA, ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ADDITIONAL CHIEF
SECRETARY (POWER)
GOVERMENT OF HIMACHAL
PRADESH, H.P. SECRETARIATE,
CHHOTA SHIMLA, SHIMLA-171
002, H.P.
2. HIMACHAL PRADESH POWER
CORPORATION LIMITED
THROUGH ITS CHAIRMAN-CUM-
DIRECTOR (PERSONNEL),
HIMFED BUILDING, BCS, NEW
SHIMLA, SHIMLA-171009, H.P.
3. MADHU SUDAN S/O GAUTAM
KUMAR, R/O VILLAGE LADWAH,
GRAM PANCHYAT LIGGA, TEHSIL
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2
SALOONI, DISTRICT CHAMBA,
PIN176312 H.P.
4. PUSHAP RAJ S/O SHRI
.
NAROTAM RAM, R/O VILLAGE
SADHYANI, TEHSIL REWALSAR
(ST), DISTRICT MANDI, PIN-
175023, H.P.
...RESPONDENTS
(SH. ASHOK SHARMA, A.G.
WITH SH. RAJINDER DOGRA, SR.
ADDL. A.G., SH. VINOD
THAKUR, ADDL. A.G. AND SH.
RAJAT CHAUHAN, LAW OFFICER,
FOR RESPONDENT NO. 1.
SH. ISHAAN KASHYAP,
ADVOCATE, FOR RESPONDENT
NO. 2.
MS. BABITA CHAUHAN,
ADVOCATE, LEGAL AID
COUNSEL, FOR RESPONDENT
NO. 4.
RESERVED ON: 29.12.2021
This Petition coming on for orders this day, Hon'ble Mr. Justice
Tarlok Singh Chauhan, passed the following:-
ORDER
The instant petition has been filed for the grant of
following substantive reliefs:-
"i) That the reply Annexure P-12 denying the
representation (Annexure P-11) made by the
petitioner be quashed and set aside;
ii) That the Revised Evaluation Sheet Annexure P-
10/3 be quashed and set aside.
Iii) That the respondent authorities may be directed
to re-evaluate the candidature of the petitioner after
awarding him marks against columns 3 and 11 of the
Evaluation Sheet i.e., marks for Additional
.
Qualification and marks for Work Experience in
Government/Semi-Government organization and
revise the Evaluation Sheet accordingly.
2. Petitioner completed his matriculation in the year,
2002 and thereafter completed his Diploma in Civil Engineering
in the year, 2013. On 15.05.2016, petitioner started to work as
Plant Manager at 1.35 MLD capacity Sewerage Treatment Plant
Snowdon, which was outsourced to Engineer Tek Chand
(Government Contractor and General Orders Supplier) by Shimla
Jal Prabandhan Nigam Limited (SJNPL), an undertaking of the
Government. Thereafter, the petitioner vide lateral entry
completed his degree in Bachelor of Technology in Civil
Engineering on 17.04.2017.
3. On 22.06.2020, the Medical Authority under the
Department of Empowerment of Persons with Disabilities,
Ministry of Social Justice and Empowerment, Government of
India, issued disability certificate in the name of the petitioner
certifying that petitioner is a case of 'Locomotor Disability' and
that the diagnosis in his case was non-progressive. It was further
mentioned that the petitioner has 80% permanent disability in
relation to his brain, right leg and right arm.
4. On 17.08.2020, respondent-Corporation issued
"Notice for Recruitment" inviting application from bonafide
.
Himachalis for filling up five posts in Supervisory and Workmen
Cadre (equivalent to Class-III posts in GoHP) from amongst the
persons with Disabilities on contract basis. Out of five posts so
notified, one post of Junior Engineer (Supervisory Trainee-Civil)
was reserved for a person with locomotor disability, against
5.
r to
which post the petitioner applied.
Respondent-Corporation issued call
09.03.2021 regarding Counselling/Documentation for one post of
letter on
'Junior Engineer (Supervisory Trainee-Civil) in HPPCL on contract
basis reserved for person with disabilities. The name of the
petitioner, respondents No. 3 and 4 appeared at Serial No(s). 24,
6 and 17, respectively in the call letter.
6. Vide application dated 18.06.2021, the petitioner
sought information under Right to Information Act, with regards
to the details of the marks/evaluation awarded to the petitioner
and the selected candidates against the post of Junior Engineer
(Civil) locomotor disabilities-counseling held on 26.03.2021.
7. According to the petitioner, he was required to be
accorded marks for additional qualification since he had not only
possessed the diploma, which was essential qualification but also
had a degree, which ought to have been treated as an additional
qualification. That apart, the work experience gained by the
petitioner ought to have been counted while working out merit.
.
However, the contention of the petitioner was rejected vide letter
dated 12.07.2021, the relevant portion whereof reads as under:-
"Since the essential qualification was either Diploma or
Degree or AMIE therefore during the
documentation/evaluation for the above post the marks of
the B-Tech in Civil Engineering Degree, over Diploma was
considered by the Selection Committee being higher in
percentage between the qualification of Diploma and
Degree
Further, for clarity, it is submitted that the additional
qualification has been considered as any other
qualification over and above the essential qualification in
the related discipline of the Civil Engineering. No any (sic)
document to this extent has been provided by the
applicant/ representational (sic)."
8. Aggrieved by the action of the respondents, the
petitioner has filed the instant petition for the reliefs as set out
above.
We have heard learned counsel for the parties and
have gone through the material placed on record.
9. At the outset, without even going into the question
whether the experience gained with the contractor can be
counted, we notice that even after granting the marks of
experience to the petitioner of four years i.e. 0.4 marks for each
completed years, the same would work out to only 1.6 and in
case is added to the total marks of the petitioner i.e. 12.67, the
total will work out to 14.27 marks as against the selected
.
candidates who has obtained 14.34 marks.
10. Therefore, in this background, it is necessary for the
Court to determine whether the petitioner is possessing a higher
qualification, when he admittedly has only a diploma in Civil
Engineering and a Degree in Bachelor of Technology and as per
follows:-
r to
the advertisement essential qualification for the post applied as
"Diploma or Degree in Civil Engineering from a recognized
Board/Institution University, established by law by the
State/Central Govt. OR AIME from Institution of Engineer
(India) (only those candidates who are enrolled fro AMIE
with the Institute of Engineers (India) Kolkata with
permanent recognition upto 31.05.2013 would be
eligible)."
11. It has to be remembered that essential qualification
for appointment to the post are for the employer to decide. The
court cannot lay down the conditions of eligibility, much less can
it delve into the issue with regard to the desirable qualification
being at par with the essential qualification by an interpretive re-
writing of the advertisement.
12. In coming to such a conclusion, we are duly
supported by the judgment of the Hon'ble Supreme Court in
Maharshtra Public Service Commission vs. Sandeep
Shriram Warade and others (2019) 6 SCC 362, wherein in
paragraph-9 it was held as follows:-
.
"9. The essential qualifications for appointment to a post
are for the employer to decide. The employer may
prescribe additional or desirable qualifications, including
any grant of preference. It is the employer who is best
suited to decide the requirements a candidate must
possess according to the needs of the employer and the
nature of work. The court cannot lay down the conditions
of eligibility, much less can it delve into the issue with
regard to desirable qualifications being at par with the
essential eligibility by an interpretive re-writing of the
advertisement. Questions of equivalence will also fall
outside the domain of judicial review. If the language of
the advertisement and the rules are clear, the Count
cannot sit in judgment over the same. If there is an
ambiguity in the advertisement or it is contrary to any
rules or law the matter has to go back to the appointing
authority after appropriate orders, to proceed in
accordance with law. In no case can the Court, in the garb
of judicial review, sit in the chair of the appointing
authority to decide what is best for the employer and
interpret the conditions of the advertisement contrary to
the plain language of the same."
13. It would be noticed that both Diploma and Degree
have been prescribed to be only an essential qualification,
therefore, treating the degree at a higher pedestal to diploma,
and awarding higher marks for the same is doing injustice for
those persons, who only possess diploma. That apart, the same
qualification i.e. Degree cannot be treated differently for the
same purpose i.e. eligibility and an additional qualification or
else, the same would lead to absurdity.
.
14. In such circumstances, we are clearly of the view
that once the degree has been considered to be only a gate pass
for prescribing it as eligibility, the same cannot be treated as a
higher qualification that too only in the case of the petitioner
simply because he happens to also have a diploma.
15.
In view of the aforesaid discussion, we do not find
any merit in this petition and the same is accordingly dismissed,
leaving the parties to bear their own costs. Pending applications,
if any, also stands disposed of.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
th
4 January, 2022 Judge
(sanjeev)
