Jharkhand High Court
Moti Shankar Mahato vs The State Of Jharkhand on 3 February, 2023
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1032 of 2014
Moti Shankar Mahato, S/o Raghuram Mahto, Resident of Village &
Post :- Gutjora, P.S. & Distt :- Khunti, State:- Jharkhand
.......Petitioner
Vs.
1. The State of Jharkhand
2. The Secretary, Labour Employment and Training Department,
Government of Jharkhand, 204, Nepal House Secretariat, P.O. & P.S.
Doranda, District Ranchi-834002
3. The Director, Department, Government of Jharkhand, 204, Nepal
House Secretariat, P.O. & P.S.- Doranda, District, Ranchi-834002
4. Shri Rajiv Ranjan, S/o Sri Dwarika Das, Resident of I.T.I., P.O.
Hehal, P.S.- Sukhdeo Nagar, District- Ranchi
5. Shri Sukra Kachhap S/o Somra Kachap, Resident of I.T.I.
Kharsawa, P.O. + P.S.- Kharsawa, District- Saraikella
6. Shri Birendra Nath Mahto S/o Late Kajru Mahto, Resident of I.T.I.,
P.O. + P.S. & District- Deoghar ........Respondents
For the Appellant :Mr. Mahesh Tewari, Advocate
For the Respondent : Mr. Rohan Kashyap, AC to GII
PRESENT
HON'BLE MR. JUSTICE RATNAKER BHENGRA
C.A.V. ON 17.12.2021 DELIVERED ON 03/02 /2023
Ratnaker Bhengra,J: This writ petition was heard along with W.P.(S) No. 2223 of 2014, as per order of this court dated 29.09.2015, passed in W.P.(S) No. 2223 of 2014.
2. In the present writ petition the petitioner prayed for writ in the nature of Mandamus, commanding upon the respondents to immediately and forthwith send to this Hon'ble Court all the records appertaining to the issuance of the letter dated 06.01.2014 (Annexure13) to the petitioner wherein, it has been intimated to the petitioner that because of his non fulfillment of the requirements envisaged, his appointment to the post of Diesel Mechanic [Anudeshak] cannot be considered and to quash the same as being illegal, arbitrary, blatant misuse of power as the same has been done in a completely illegal manner. Further prayer has been made for direction upon the respondents particularly Respondent No. 3 to consider his case for appointment to the post of Diesel Mechanic [ Anudeshak]. The petitioner has also prayed to allow him to join as a 2 Diesel Mechanic [ Anudeshak] on and from the date on which the Respondent Nos. 4, 5 and 6 have joined their posts of Diesel Mechanic [ Anudeshak] under the Respondent No. 2.
3. The factual background of the case is that the respondents had issued an advertisement no. 50 dated 08-09-2009. At serial No. 20 of the said advertisement, 9 posts were advertised for the post of Diesel Mechanic [Anudeshak] or Diesel Mechanic Instructor in different categories. The Jharkhand Combined Entrance Competitive Examination Board was the authority to hold the examination. The petitioner applied along with all certificates including the educational certificates, experience certificates and other certificates which were required according to the stipulations made in the said advertisement. The case of the petitioner was found to be in accordance with the requirements as envisaged in the advertisement. The petitioner appeared in the examination, organized by the said Examination Board on 18.07.2010. The result of the examination was published on 20th October, 2010 and the petitioner secured CML Rank-3 securing total 64.25 marks in the said examination. Thereafter, on the basis of his rank, the petitioner was called for counselling by the competent authorities vide letter dated 26.11.2010. The further case of the petitioner is that three candidates were appointed for the post and respondent no. 5 Shri Sukra Kachhap and respondent no. 6 Shri Birendra Nath Mahto, who had secured CML rank-4 and CML rank-5 respectively were appointed and petitioner who had secured CML rank-3 was not appointed by the respondent. So, on appointment of these candidates, the petitioner immediately represented before the competent authority praying that his case for the appointment to the post of Diesel Mechanic [Anudeshak] should be considered expeditiously and he should be appointed.
4. The further case of the petitioner is that his matter for appointment was kept pending by the authorities on the pretext that experience certificate of the petitioner was being verified. Petitioner submitted registration and certificate of working before the respondent-authorities. Thereafter, respondent-authorities enquired 3 from the Director, DGET, Labour and Employment, Shram Shakti Bhawan, New Delhi, that who can be appointed to the post of Diesel Mechanic[Anudeshak] and on this Deputy Director(Training), Labour and Employment Ministry, Government of India, vide its letter dated 21.05.2012(Annexure-10) replied that Gujarat Government was the competent authority to give further details in this regard. Then, the respondent-authorities vide letter dated 09.07.2012(Annexure-11), requested the Chairman, Technical Examination Board, Gandhi Nagar, Gujarat, to send the syllabus of Auto Engine Business. Thereafter, Secretary, Technical Examination Board, Government of Gujarat, vide its dated 07.08.2012(Annexure-12), sent a copy of the syllabus of Certificate course in Auto Engine Mechanic and also informed that the petitioner had completed the certificate course in Auto Engine Mechanic having one year duration in May-1999. However, vide letter dated 06-01-2014(Annexure-13), issued by the respondent no. 3, it was stated that petitioner did not fulfill the eligibility criteria for the post of Diesel Mechanic[Anudeshak] and so, his appointment to the said post cannot be considered. Hence, the present writ petition.
ARGUMENT OF PETITIONER
5. Learned counsel for the petitioner, Mr. Mahesh Tiwari submits that the petitioner Moti Shankar Mahto had applied for the post of Diesel Mechanic[Anudeshak] or Diesel Mechanic Instructor appearing at Sl.No. 20 pursuant to the Advertisement No. 50 dated 08-09-2009. The result of the petitioner was published on 20.10.2010, in which petitioner secured CML Rank-3 and post Cat rank-2 securing 64.25 marks, but, candidates below him , in the rank were appointed but, petitioner was not appointed. Learned Counsel then referred to the annexure-13 of the writ petition, which is a letter dated 06.01.2014 , issued by the respondent no.3 Director, Employment and Training, Government of Jharkhand, Ranchi, and submitted that in the aforesaid letter in an arbitrary manner it was said that petitioner candidature for appointment to the post of Diesel Mechanic [Anudeshak] cannot be considered due to non-fulfillment of the 4 eligibility criteria for the said post.
6. Learned counsel for the petitioner then referred to paragraph-10 of the supplementary counter affidavit dated 06-02- 2020,wherein respondent had stated that petitioner has completed certificate course in Auto Engine Mechanic from Gujarat State Technical Examination Board, which is not valid for the post of Diesel Mechanic Instructor and the petitioner's certificate is not recognized by NCVT [National Council for Vocational Training] and hence, the petitioner did not fulfill the eligibility condition mentioned in the advertisement. Further, at paragraph-10 of the aforesaid supplementary counter affidavit dated 06-02-2020, it is also stated by the respondent that the certificate of the petitioner is recognized by SCVT [State Council for Vocational Training], Government of Gujarat, which is not valid for Diesel Mechanic Instructor and therefore, the case of the petitioner was not considered. Learned counsel Mr. Mahesh Tiwari, has raised serious objection to this statement of the respondents stated in para-10 and submitted that in the advertisement the eligibility condition was that I.T.I., certificate shall be recognized either by the centre or state i.e. by NCVT or SCVT and this is the crux of the matter. But, now contrary to advertisement, respondents are imposing the condition that petitioner's certificate is not recognized by NCVT. Petitioner's certificate is recognized by SCVT, Government of Gujarat and hence, petitioner has requisite eligibility condition as per advertisement and candidates below petitioner's rank had been appointed and so, denial of petitioner's appointment is illegal and arbitrary.
7. The learned counsel for the petitioner further referred to the counter affidavit by the respondents dated 07.07.2014, its paragraph 6 and 7, wherein it is stated that the certificate course in Auto Engine Mechanic from Gujarat State Technical Examination Board is not valid for the post of Diesel Mechanic Instructor, for which the petitioner had applied, because of difference of syllabus. To this petitioner by his rejoinder dated 29.09.2015 at paragraph-8 has categorically stated that the syllabus of both the courses are 5 similar and there is only difference of nomenclature between the two courses. Counsel for the petitioner further submitted that respondent no. 3 had approached the Labour and Employment Ministry, Government of India in regard to certificate course in Auto Engine Mechanic from the State of Gujarat and the Deputy Director (Training), Government of India had directed the respondents to follow the norms for instructor as contained in letter dated 15/23 Dec 2008. The learned counsel further submitted that reason for not appointing the petitioner as per respondents is that petitioner did not possess specialization in Diesel Mechanic but, this criteria was not mentioned in the advertisement and now respondents are imposing the new criteria of having specialization in Diesel Mechanic and such a criteria would change the rules of the game and it is well established in law that such changes cannot be made in between.
8. In support of his contention the learned counsel for the petitioner has relied on judgments passed by this court of case of Badal Kumar Pahan vs. The State of Jharkhand and other in WP(S) No. 3834 of 2018; Ravi Shankar vs. The State of Jharkhand and others in WP(S) No. 702 of 2016; Kamlakant Pandey vs. State of Jharkhand and others in WP(S) No.1550 of 2016;State of Jharkhand and others vs. Kamlakant Pandey in L.P.A. No. 712 of 2018 and in WP(S) No. 5449 of 2015 with other analogues cases and submitted that on the basis of these judgments candidates have been given appointment.
ARGUMENT OF RESPONDENTS
9. On the other hand, the learned counsel for the State, Mr. Rohan Kashyap, submitted that the certificate of the petitioner in Auto Engine Mechanic is not of the relevant trade ( ससंबसंधधित O;olk;) i.e. in Mechanic Diesel. The petitioner has completed certificate course in Auto Engine Mechanic from Gujarat State Technical Examination Board, which is not valid for the post of Diesel Mechanic Instructor, the post for which the petitioner had applied for. Learned counsel further referred to the annexure-10 of the writ petition and submitted that in this letter Deputy Director(Training), Labour and Employment 6 Ministry, Government of India, had said to follow letter dated 15/23 December, 2008, issued by the Directorate General of Employment and Training, Government of India, for the appointment of instructor in Diesel Mechanic Trade. The syllabus of certificate course in Auto Engine Mechanic from Gujarat State Technical Examination Board differs from syllabus of Diesel Mechanic offered by ITI under NCVT. The syllabus of ITI in Mechanic Diesel is specific of diesel engine and is introductory only whereas the syllabus of Auto Engine by Gujarat State Technical Examination covers both type of engines in its training period of one year and hence the training undergone by the petitioner is not extensive in the field of diesel engine and for these reasons petitioner was not found to be fit to be appointed on the post of Diesel Mechanic Instructor.
10. The learned counsel for the state further submitted that the supplementary counter affidavit dated 16.11.2017 has been filed in compliance of the order dated 01.09.2017 passed by this Hon'ble Court wherein Hon'ble Court had asked to apprise this Court as to under what circumstances the persons below in merit list other than the petitioner were appointed if the petitioner was possessing valid certificates and degree. Learned counsel stated that in this regard respondent no.3 has issued letter no. 1376 dated 07.11.2017(Annexure-A) wherein it is stated that petitioner did not fulfill the eligibility criteria for the post of Diesel Mechanic Instructor, and hence, the persons below in the merit list having required qualification were appointed. Learned counsel further submitted that panel remains valid for one year only in view of letter no. 11243, dated 06.12.1995, issued by Personnel & Administrative Reforms ( P & AR) Department and in view of this circular the case of the petitioner cannot be considered for appointment on the post of instructor. The department has started process for fresh recruitment of 779 instructors in different trades. In this regard the Secretary, Department of Labour, Employment & Training, Government of Jharkhand has sent a letter vide memo no. 1082 dated 21.08.2017 to Principal Secretary, Department of Personnel, Administrative 7 Reforms & Rajbhasa, with due clearance of roster of Instructor in which previous & present Vacancy of Instructor is already included for taking steps for recruitment of the instructors. The department has already started the process for fresh recruitment of instructors and under such circumstances the claim of the petitioner cannot be considered.
FINDINGS
11. I have heard learned counsel for the parties and perused the materials on record. The petitioner has challenged the impugned order dated 06.01.2014(Annexure-13) issued by the respondent no.-3 Director, Employment and Training, Government of Jharkhand, Ranchi, whereby his appointment to the post of Mechanic Diesel Instructor was declined on the ground that petitioner did not fulfill the eligibility criteria for the post of Diesel Mechanic Instructor.
12. The main contention of the learned counsel for the petitioner is that petitioner has secured CML Rank-3 in the examination, but he was not appointed and respondent no. 5 Shri Sukra Kachhap and respondent no. 6 Shri Birendra Nath Mahto, who had secured CML rank-4 and CML rank-5 respectively i.e. who were below the rank of the petitioner were appointed. On the other hand respondent has apart from other grounds raised two main grounds for not appointing the petitioner on the post of Mechanic Diesel Instructor. The first ground is that petitioner has completed certificate course in Auto Engine Mechanic, which is not valid for the post of Mechanic Diesel Instructor or more specifically respondent have raised the issue of equivalency of syllabus and the second ground is that certificate obtained by the petitioner is not recognized by NCVT and hence, this court has to address both these issues raised by the respondents.
13. Re : equivalency of syllabus of Mechanic Diesel vis-a- vis Auto Engine Mechanic In counter affidavit dated 07.07.2014 filed by the respondents, respondents had raised issue of equivalence of syllabus and had stated in paragraphs 6 and 7 that syllabus of certificate course in Auto 8 Engine Mechanic from Gujarat State Technical Examination Board differs from the syllabus of Mechanic Diesel offered by the ITI under NCVT. The syllabus of ITI in Mechanic Diesel is specific of Diesel Engine and is introductory whereas the syllabus of Auto Engine by Gujarat State Technical Examination Board covers both type of engines in its training period of one year. Then, respondents have further stated that training undergone by the petitioner is not extensive in the field of Diesel Engine, so, petitioner was not found fit for the post of Mechanic Diesel Instructor. In his rejoinder dated 29-09-2015, petitioner has annexed Syllabus of Certificate Course in Auto Engine Mechanic of Technical Examinations Board, Gujarat as Annexure-1. Petitioner has also stated in this rejoinder that syllabus for Mechanic Diesel under the craftsmen Training Scheme has been redesigned in 2014 by the Government of India, Ministry of Labour & Employment (DGE & T) is also a one year programme and has annexed syllabus of Mechanic Diesel under the craftsmen Training Scheme by Government of India, Ministry of Labour & Employment (DGE & T) as Annexure-2. So, this court has two syllabus one is syllabus of Certificate Course in Auto-Engine Mechanic of Technical Examinations Board, Gujarat, as per which petitioner has completed his course of Auto Engine Mechanic and the other syllabus is of Mechanic Diesel under the craftsmen Training Scheme redesigned in 2014 by the Government of India, Ministry of Labour & Employment (DGE & T). At paragraphs- 8 and 9 of this rejoinder dated 29-09- 2015, petitioner has tried to satisfy this court that on comparison between syllabus of both these courses, the syllabus of both these courses are similar and there is only difference of nomenclature between the courses. In this regard this court is of the view that examining the equivalency of syllabus or similarity in syllabus or nomenclature, is not in the domain of the court.
14. Here it is pertinent to note the judgment rendered by Hon'ble Apex Court in the case of Bedanga Talukdar v. Saifudaullah Khan and others reported in (2011) 12 SCC 85 wherein at paragraph-29, Apex Court has held that there cannot be any 9 relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. In the absence of such power in the rules, it could still be provided in the advertisement. Apex Court further said that that power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India. Paragraph-29 of the said Judgement is reproduced herein below-
29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.
15. In case in hand, in the advertisement, there was no such relaxation that apart from Mechanic Diesel, candidates having certificate course in Auto Engine Mechanic, which petitioner was possessing, were eligible to apply for the post of Mechanic Diesel Instructor. Now, if relaxation is given on the ground of equivalency of syllabus or similarity or only difference of nomenclature, it would amount to violating Articles 14 and 16 of the Constitution of India, to such candidates, who had similar certificates like petitioner, but, they did not apply for the post of Mechanic Diesel Instructor.
16. Re: Certificate obtained by the petitioner not recognized by NCVT Respondent had issued Advertisement No.50 dated 08.09.2009 and petitioner pursuant to the said advertisement had applied for the post 10 of Mechanic Diesel [Anudeshak] or Mechanic Diesel Instructor appearing at serial no.20 of the said advertisement. In the advertisement educational qualification and experience for the post from serial no.1 to 33 were as follows-
"शशैक्षधणिक ययोग्यतता एवसं अननुभव (क) क्रम ससं. 1 ससे 33 तक:-
i) प्रवसेधशकयोतत्तीणि,ससंबसंधधित O;olk; ससे आई. टत्ती. आई. /धडिपयोमता / धडिगत्ती उतत्तीणि,र एवसं ii) प्रधशक्षणि अवधधि सधहित पतापाँच वरर कता अननुभव (मतान्यतता प्रताप औदयोधगिक प्रधतषतान ससे अथवता रताज यता कसेन सरकतार ससे मतान्यतता प्रताप तकनत्तीकत्ती ससंसथतान) नयोट:
1. आई. टत्ती. आई. उतत्तीणिर ससे ततात्पयर हिशै धक रताज यता कसेन सरकतार ससे मतान्यतता प्रताप औधियोधगिक प्रधशक्षणि ससंसथतान/कसेन (रताषषत्तीय प्रमताणि पत / रताज स्तरत्तीय प्रमताणि पत / रताषषत्तीय धशक्षनुतता प्रमताणि पत/सत्ती.टत्ती. आई./ए.टत्ती.आई. इतताधद)
2. आई. टत्ती. आई. /धडिपयोमता / धडिगत्ती कत्ती अध्ययन / प्रधशक्षणि अवधधि कत्ती गिणिनता अननुभव कसे रूप ममें कत्ती जतायसेगित्ती।"
Hence, as per advertisement apart from experience requirement, required qualification for the post is mentioned in column ' (क)i)' which is matric and ITI /Diploma/Degree pass in relevant trade i.e. in case of petitioner relevant trade is Mechanic Diesel. Further, note no.1 appended to column '(क)i)', pertaining to the post from serial no. 1 to 33, it is noted that ITI pass means Industrial Training Institute/Centre recognized by State or Central Government and in bracket, it is noted about requirement of National certificate/State level certificate/National Apprenticeship Certificate/CTI/ATI etc. In the case in hand petitioner is claiming his appointment to the post of Mechanic Diesel Instructor on the strength of his I.T.I. pass certificate in Auto Engine Mechanic and for this petitioner has tried to satisfy this court about equivalency of syllabus or similarity in syllabus and difference in nomenclature of course of Auto Engine Mechanic vis-à- vis Mechanic Diesel, which this court has answered in foregoing paragraph that examining the equivalency of syllabus does not fall within the domain of the court. Hence, fact remains that petitioner had applied for the post of Mechanic Diesel Instructor but he failed to submit his certificate in this relevant trade i.e. Mechanic Diesel as per requisite qualification mentioned in a column '(क)i)' of the Advertisement no. 50 dated 08.09.2009. Once the petitioner had fulfilled the requirement of column '(क)i)', then, only recognition of Institute either by NCVT or SCVT, would arise, but, this is not the 11 case. Hence, candidature of the petitioner was rightly declined by the respondent authorities vide its letter dated 06.01.2014 (Annexure-13), due to lack of requisite educational qualification for being appointed to the post of Mechanic Diesel Instructor.
17. Regarding the question raised by the petitioner that petitioner had secured CML rank-3 and was not appointed but, candidates securing CML rank-4 and CML rank-5, who are respondent no.5 and respondent no. 6 respectively were appointed, I have gone through the supplementary counter affidavit dated 04.8.2021 of the respondents wherein respondents have stated that pursuant to the advertisement only three persons were selected for the post of Mechanic Diesel Instructor out of the nine posts advertised and respondent have also annexed the certificates of the selected candidates which is Annexure-A. On going through Annexures-A, I find that respondent no. 4 and respondent no. 5 have submitted certificate in Mechanic Diesel. Respondent no.4 certificate bears the signature of secretary of NCVT as well as secretary of SCVT and the certificate of respondent no. 5 bears the signature of secretary, SCVT and respondent no. 6 had submitted certificate of Diploma in Automobile from Govt. Polytechnic , Khutri. Hence, petitioner had to submit certificate of in Mechanic Diesel as respondent no. 4 and respondent no. 5 had submitted for being eligible for the post of Mechanic Diesel Instructor, as per advertisement. But, petitioner had submitted his certificate in Auto Engine Mechanic and not in Mechanic Diesel and hence, petitioner lacked eligibility criteria from very beginning for being appointed to the post of Mechanic Diesel Instructor.
18. Learned counsel for the petitioner has relied on the judgment passed by the learned single judge of this Hon'ble Court in WP(S) No. 5449 of 2015 with other analogues cases(supra). The fact in this case was that petitioners had applied for the post of Electrician Instructor/Fitter Instructor/wireman Instructor and petitioners were declared successful in the written examination and thereafter, petitioners were called for counselling, in which they participated and 12 completed all the formalities. But, petitioners appointment were withheld by the respondents on the ground that after one year, panel had lapsed and also in light of opinion from the Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, and hence, no appointments were made after 14.09.2015, from the select list prepared pursuant to the Advertisement No. 50 dated 08.09.2009. This court had ordered to issue necessary order of appointment of the petitioners as respondents had continued to make appointments at least three years after alleged lapse of the waiting list. So, in WP(S) No. 5449 of 2015 (supra), the main issue was appointment after expiration of one year of penal list, but, in the case in hand matter pertains to eligibility criteria in relevant trade i.e. of Mechanic Diesel. In case of Ravi Shankar(supra), Badal Kumar Pahan(supra) and Kamlakant Pandey(supra), the issue was same as in the case of WP(S) No. 5449 of 2015(supra) i.e. non-appointment of the petitioners on the lapse of panel after one year and hence, these cited cases are also not applicable in the facts and circumstances of the case in hand.
19. Hence, this writ petition is dismissed.
( Ratnaker Bhengra,J.) Jharkhand High Court, Ranchi Dated 03 /02 /2023 Sharda/NAFR