Jharkhand High Court
The State Of Jharkhand vs Lekha Kujur on 17 February, 2020
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 355 of 2019
1.The State of Jharkhand.
2.The Principal Secretary, Department of Labour, Employment and
Training, Government of Jharkhand, Ranchi, P.O. & P.S-Dhurwa, District
Ranchi.
3.The Director, Department of Labour, Employment and Training,
Government of Jharkhand, Ranchi, P.O. & P.S-Dhurwa, District Ranchi.
4.The Deputy Director (Training), Department of Labour, Employment and
Training, Government of Jharkhand, Ranchi, P.O. & P.S-Dhurwa, District
Ranchi. ....... Appellants/Respondents
Versus
Lekha Kujur, D/o Jairam Oraon, Resident of Kartik Oraon College Campus,
P.O. & P.S. Ratu, District Ranchi, Jharkhand.
...... Respondent/Writ petitioner
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mr. Atanu Banerjee, Sr. S.C-III.
: Ms. Pooja Kumari, A.C to Sr. S.C-III.
For the Respondent : Mr. Mahesh Tewari, Advocate
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Oral Judgment:
Order No.5/Dated: 17th February, 2020
I.A. No.9296 of 2019
This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 23 days in preferring this Letters Patent Appeal.
2. Heard.
3. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellant was prevented by sufficient cause in preferring the appeal within the period of limitation.
4. Accordingly, I.A. No.9296 of 2019 is allowed and delay of 23 days in preferring the appeal is condoned.
L.P.A. No.355 of 2019 2
5. The instant intra court appeal under Clause 10 of the Letters Patent is directed against the order/judgment dated 01.03.2019 passed by learned Single Judge of this Court in W.P.(S) No.1277 of 2014 whereby and whereunder the order of rejection, wherein the claim of the writ petitioner for appointment to the post of Instructor has been rejected on the ground of lacking experience, has been held to be not sustainable in the eye of law, accordingly, quashed.
The respondents have been directed to consider the claim of the writ petitioner within a period of eight weeks from the date of receipt/production of a copy of the order.
6. The brief facts which requires to be enumerated which is relevant for consideration of the lis involved herein, reads hereunder as:
The respondent-State of Jharkhand came out with an advertisement for conducting Jharkhand Combined Entrance Competitive Examination Board on 08.09.2009 for inviting applications to fill up the posts of Mechanic, General, and Electronics Instructors, out of total 27 posts 7 posts were earmarked for the candidates belonging to the Scheduled Tribes. The writ petitioner who belongs to the Scheduled Tribe category, having the eligibility criteria, made application for consideration of his candidature for the post of Instructor.
The case of the writ petitioner was recommended for appointment by the Jharkhand Combined Entrance Competitive Examination Board, in consequence thereof, she was asked to appear in interview/counselling on 26.11.2010 wherein her rank has been shown as CML Rank 80 of 2005 amongst all the candidates and accordingly, she faced interview and submitted all her originals as well as attested copies of the testimonials of educational qualification and educational certificate. After lapse of 3 considerable time, the writ petitioner was communicated vide letter no.187 dated 16.02.2014 about rejection of her candidature for appointment against the post of Mechanic, General and Electronics Instructors on the ground of non-availability of experience, which according to the writ petitioner was absolutely an illegal order and hence she approached to this Court under Article 226 of the Constitution of India, wherein the writ petition has been allowed, which is the subject matter of intra court appeal, preferred by the State of Jharkhand.
7. Mr. Atanu Banerjee, learned Sr. S.C-III, has assailed the order, inter alia, on the ground that the rejection of candidature of the writ petitioner was absolutely proper in view of the fact that the writ petitioner having Diploma of three years course laterally got admission in BIT Mesra under Degree course and hence the writ petitioner has given the experience on account of the period undergone in study i.e. Degree course which is the higher side and it was found that the writ petitioner was only having four years of experience and hence not found eligible as per the condition stipulated in the advertisement.
It is the further ground of the State of Jharkhand that the basic qualification of Instructor for appointment is Intermediate with ITI or Diploma or Degree as would be apparent from the Jharkhand Industrial Training Service /Cadre (Appointment on Non-Gazetted part under Group C, promotion and service condition) Rule, 2008 framed in exercise of the power vested under Article 309 of the Constitution of India. The candidate who have completed the last upper basic qualification has been decided to be considered but the lower basic qualification has not been considered for any candidate for appointment as instructor. According to the appellant, the certificate of experience submitted by the writ petitioner did not clearly 4 mention as to whether the petitioner would fulfil the criteria of five years' experience of training + experience in the related field since the condition stipulated in the advertisement clearly stipulates about five years' experience including training period and since the writ petitioner had submitted experience certificate for the period 01.07.2008 to 18.09.2009 issued by the Government Women's Polytechnic, Ranchi vide letter No.472 dated 16.07.2011 through her letter dated 08.07.2011, wherein it has been clearly mentioned that each and every date on which the petitioner had taken class as part time lecturer and hence, total number of class engaged by the writ petitioner as 37 days only which was found to be insufficient for calculating experience required for lecturer in one complete year. It has further been agitated that the basic qualification for appointment of Instructor is either Intermediate with ITI or Diploma or Degree having five years' experience including training period but the writ petitioner had completed three years Diploma course and took admission in second year B.E Course of duration of four years and as such the last upper basic qualification has been counted which is B.E of four years, thus the requirement of experience is falling short of duration of five years including training period.
Learned counsel for the appellants-respondent on the basis of these factual backdrops, has submitted that the learned Single Judge without appreciating this aspect of the matter, has passed the order of rejection which is not proper.
8. Mr. Mahesh Tewari, learned counsel appearing for the respondent- writ petitioner has submitted while taking the order passed by the learned Single Judge that the candidature of the writ petitioner has been accepted and she was allowed to participate in selection process in which she was found 5 successful, but rejection of her candidature is nothing but an arbitrary exercise of power by the respondent authority.
He submits that it is the admitted case that the writ petitioner has completed Diploma which is of three years and as such she is having three years Diploma degree and the training for three years on account of getting teaching for Diploma of three years and thereafter by virtue of taking admission in B.E course which is the four years course, the training experience will be said to be more than five years, counting the study period of both Diploma certificate and the Degree course and due to this fact on earlier occasion the candidature of the writ petitioner was accepted but subsequently on the ground of non-completion of five years of experience her candidature has been rejected which is absolutely incorrect and considering this aspect of the matter the learned Single Judge has passed the order and as such it cannot be said that any infirmity has been committed while passing such order.
9. This Court having heard learned counsel for the parties and on appreciation of rival submissions, deem it fit and proper to discuss about the terms of advertisement which is the basis upon which the process of selection has been initiated.
It is admitted fact that an advertisement was published by the Jharkhand Combined Entrance Competitive Examination Board for fulfilling the post of instructor under the industrial training institutes.
It is evident from the advertisement that altogether 27 posts were advertised for which the applications were invited. It further appears from the reference made in the advertisement about educational eligibility and experience, wherein under Column-Ka, the reference of post from Serial 6 no.1 to 33 have been made making one or the other candidates eligible for consideration of their candidature.
The aforesaid condition, for ready reference is being referred herein below:
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1. O;olk; lh/kh fu;qfDr& O;olk; vuqns'kd ds vuqns'kd@MªkbZx 100% izksUufr&'kwU; fy, visf{kr ;ksX;rk& vuqns'[email protected] vuqns"kd osrueku~ d½ izosf'kdksÙkh.kZ 5000&8000 lacaf/kr O;olk; ls vkbZ-Vh-vkbZ- mÙkh.kZ vFkok lacaf/kr 'kk[kk esa fMIyksek@fMxzh x½ ik¡p o'kZ dk vuqHko ¼ekU;rk izkIr vkS|ksfxd izfr"Bku ls vFkok jkT; ;k dsUnz ljdkj ls ekU;rk izkIr rduhdh laLFkku½ uksV %& vkbZ-Vh-vkbZ-@fMIyksek@fMxzh dh vè;;u@izf'k{k.k vof/k dh x.kuk vuqHko ds :i esa fd tk;sxhA 7
(i) if the candidate is Intermediate passed with ITI in the related trade/Diploma/Degree qualified and;
(ii) five years' experience along with training period from recognized industrial institute of the State or from the Central Government.
It further appears from the captioned heading under "note":
(i) The meaning of ITI passed is that the same would be treated to be valid, if certificate has been issued by any recognized institute recognized by the State Government or the Central Government or National Certificate/State Level Certificate/National Lecturer Certificate/CTI/ATI etc.
(ii) It has been provided that the period undergone for teaching ITI/Diploma/Degree/the experience period would be calculated for experience.
10. It is the settled legal proposition that the recruitment process is to be initiated on the basis of advertisement and if any condition is provided in the advertisement, there cannot be any deviation from such condition, reference in this regard may be made to the judgment rendered by Hon'ble Apex Court in the case of Bedanga Talukdar vs. Saifudullah Khan & Ors. reported in AIR 2012 SC 1803, wherein it has been laid down that there cannot be any relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly indicated in the advertisement and/or if there is power of relaxation in the said rules, the same would still have to be specifically indicated in the advertisement.
It is evident from the advertisement that the eligibility criteria for consideration of one or other candidate is Intermediate in the related trade of ITI/Diploma/Degree qualified and five years' experience along with the 8 training period, the aforesaid condition stipulates that candidature of a candidate is required to be considered if a candidate is Intermediate in the related trade either ITI/Diploma/Degree qualified and five years' experience along with the teaching period, which does suggest that if a candidate is Intermediate with ITI but the candidate having experience of five years along with training from the recognized technical institute or a candidate having Diploma and five years' experience along with training period or Degree qualified and the five years' experience along with the said condition will be eligible for consideration.
It has further been clarified that the condition stipulates about consideration of three categories of candidates; (i) Intermediate with ITI in the respective trade (ii) Diploma (iii) Degree qualified in all such categories along with the common training period of experience, meaning thereby, if a candidate is Intermediate with ITI in the related trade, he is to possess five years' experience along with the training period, if a candidate is Diploma, he is to possess experience of five years along with training period and if the candidate is Degree qualified, he is to pass five years' experience along with the training period, therefore, the second condition which stipulates about five years' experience with the training period is to be in supplement to each category of candidate either having Intermediate with ITI in the related trade or Diploma or Degree qualified.
The writ petitioner has taken admission in the Diploma course and after three years of successful course as per merit she has shifted from Diploma to Degree course after completing three years of required length of course and thereafter has been granted Degree of Engineering in Electronics.
The claim of the writ petitioner has been rejected as because Diploma and Degree both have been said to be parallel course and further the writ 9 petitioner has shifted from Diploma to Degree course but the length of Degree course is four years as such she does not fulfil the criteria of having experience of five years, as required in the advertisement, although it is evident from the advertisement that the period spent on study is to be calculated as experience, although the writ petitioner has taken admission in Diploma course but allowed to shift from Diploma to Degree course and got independent degree of four years.
According to the contention of the learned counsel for the writ petitioner since the writ petitioner has studied three years in Diploma course and as such, three years period which has been undergone in Diploma course is independently to be considered for the purpose of counting the period of experience and further she has been given independent degree in Bachelor course which was for four years and therefore, she is fulfilling the eligibility criteria of having more than of five years of experience along with the training period, meaning thereby, the training period has sought to be counted co-jointly i.e. the period undergone in getting Diploma course i.e. the period of three years and of Degree course i.e. of four years but as has been said hereinabove about the legal proposition that there cannot be any deviation from the terms and conditions of the advertisement, therefore, we have again going back to the terms and conditions of the advertisement as per which it has been provided that consideration of one or other candidate either having Intermediate with ITI in the related trade/Diploma/Degree qualified and the experience of five years along with training period, which suggests that if a candidate is ITI in the related trade, he is to undergo training period of five years along with teaching experience, likewise if a candidate is having Diploma course, such candidate has to possess five 10 years' experience along with training period and if a candidate is Degree qualified, such candidate is to possess five years' experience.
The aforesaid condition of advertisement makes it explicitly clear that there cannot be overlapping of any condition of eligibility or experience being sought for by the writ petitioner as because if a candidate is having Diploma such candidate is to be considered having Diploma course but along with the said course five years' experience of teaching is required to be there, but if a candidate has shifted from Diploma after completion of the period of three years to the degree qualified, there cannot be any overlapping of the eligibility criteria as because if candidature is considered for Diploma, he is to be considered taking into consideration certificate of Diploma course and the five years' experience along with the teaching as required in Diploma only and not for the other course, otherwise if the period of teaching would be counted by overlapping the course either of Diploma or the Degree course then the candidature of such candidate is also required to be considered under Diploma and Degree but that is not the condition as per the stipulation made in the advertisement as referred above.
Admitted fact herein is that the writ petitioner has got Diploma of three years and thereafter she has got independent degree in Bachelor of Engineering which was for four years and as such her experience of teaching of five years is required to be considered as per the condition of advertisement as quoted above.
11. Learned counsel for the writ petitioner has also tried to impress upon this Court by taking ground of discrimination by taking the instance of one Anup Bara, who was a candidate, whose experience has been calculated equating the study period of BCA + MCA.
11
It is settled position of law that Article 14 attracts only in case of unreasonable classification but if the classification is reasonable, the principle laid down under Article 14 will not attract.
We have considered the ground agitated by the learned counsel for the respondents on the basis of the aforesaid principle, as to whether there is any violation of Article 14 of the Constitution of India?
It is not in dispute that BCA + MCA are two independent courses. The advertisement stipulates that one of the eligibility criteria of having degree qualified is the Bachelor in Computer Application which is degree at the graduate level but after getting the degree in computer application, a candidate can take admission in the Master in Computer Application (in short MCA) and if such candidate is there, the training period of five years is to be counted by calculating the period of teaching both in BCA and MCA as because BCA and MCA are two independent course but here the fact is quite different to that of a candidate having BCA and MCA since here the writ petitioner has got Diploma after three years and thereafter got admission in second years in the Bachelor of Engineering course which she has completed which is the course of period of four years and therefore, since the Diploma and Degree are two parallel course since a candidate if got Diploma certificate he will be said to be Diploma holder but if a candidate will get degree in any faculty of Engineering, he will be Bachelor of Engineering in any particular subject and as such the candidature of such candidate, like that of petitioner herein, cannot be compared with a candidate having degree of BCA and MCA.
It is evident from the impugned order that a justification has been given by the State-respondent in the counter affidavit about clubbing together study of BCA and MCA by stating therein that the study period has 12 been considered because one is the basic qualification and another is the higher qualification but so far as the Diploma and Degree are concerned both herein will be treated to be parallel course as because the writ petitioner after completing of three years of Diploma course, took admission in 2 nd year of Bachelor of Engineering course and therefore the period undergone for B.E. course being higher side will be treated to be the period of experience and further the petitioner has moved parallel from Diploma course to Degree course and the level of degree course is four years only, therefore, we are of the view that there is reasonable classification having been explained by the State in the counter affidavit and, therefore, it is not a case of discrimination said to be in violation of Article 14 of the Constitution of India.
12. In view of the discussion made hereinabove, we are of the considered view, the learned Single Judge has committed illegality in interfering with the order of rejection by interpreting the terms of advertisement which according to our considered view, is beyond the scope and purview of the writ Court sitting under Article 226 of the Constitution of India. Therefore, this Court is of the view that the order passed by the learned Single Judge does not stand in the eye of law.
13. In the result, the appeal is allowed. Accordingly, the order passed by the learned Single Judge is quashed and set aside and in consequence the writ petition stands dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Saket/-
A.F.R.