Uttarakhand High Court
Km. Shipra Thapliyal vs State Of Uttarakhand And Others on 19 November, 2019
Equivalent citations: AIRONLINE 2019 UTR 824
Bench: Ramesh Ranganathan, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
WRIT PETITION (S/B) NO. 271 OF 2017
Km. Shipra Thapliyal ...Petitioner.
Vs.
State of Uttarakhand and others. ...Respondents
Sri M.C. Pant, learned counsel for the petitioner.
Sri J.C. Pandey, learned Brief Holder for the State of Uttarakhand/ respondent nos. 1 & 2.
Sri Ashish Joshi, learned Standing Counsel for the Uttarakhand Public Service Commission /
respondent no. 3.
Sri Rajendra Dobhal, learned Senior Counsel assisted by Sri Subhang Dobhal, learned counsel for
respondent no. 4. .
Dated : 19th November, 2019
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J. (Oral) Heard Sri M.C. Pant, learned counsel for the petitioner, Sri J.C. Pandey, learned Brief Holder appearing on behalf of the State Government, Sri Ashish Joshi, learned Standing Counsel for the Uttarakhand Public Service Commission, and Sri Rajendra Dobhal, learned Senior Counsel appearing on behalf of the 4th respondent.
2. The jurisdiction of this Court has been invoked by the petitioner seeking a writ of certiorari to quash the selection of the private-respondent dated 27.12.2016, along with consequential orders, if any, regarding appointment of the private-respondent in the post of Principal ITI; to issue a direction, in the nature of a declaration, that any experience, which is held by the private-respondent prior to completion of her AMIE degree, is not valid or is not an eligibility for the post of Principal ITI pursuant to the advertisement; and a writ of mandamus directing the respondents to consider the case of the petitioner for selection and appointment to the post of Principal ITI keeping in view her eligibility and merit.
23. Facts, to the limited extent necessary, are that an advertisement was issued by the third-respondent herein on 03.02.2015 inviting applications from eligible candidates to be considered for appointment to the posts of Principal in ITIs in the State. The conditions stipulated in the advertisement were that the applicants should have obtained a Bachelor's degree in mechanical, electrical, electronics, telecommunication, automobile or production engineering or AMIE (India) or AMI (Mechanical Engineering) (London) or AMIEE (London) or an equivalent qualification as prescribed by the Government. In addition, the applicant was required to have a minimum of two years' experience in teaching or in a workshop.
4. The petitioner submitted her application, pursuant to the advertisement on 18.02.2015, and thereafter appeared in the screening test, which was held on 26.06.2015. The petitioner was successful in the screening test, and secured more marks than the private respondents. A list of ineligible candidates was published by the third respondent on 22.06.2016, wherein the name of the fourth-respondent figured at Serial No. 21. The petitioner claims that the fourth respondent was declared ineligible as she did not possess the requisite qualification of having two years' teaching experience or experience in a workshop, on the date of issuance of the advertisement.
5. The third-respondent issued call-letters on 19.07.2016 inviting the candidates, who were successful in the screening test, to appear in the interviews scheduled to be held from 09.08.2016 to 10.08.2016 as per their roll-numbers. A corrigendum was issued by the third respondent on 27.10.2016 by which one post in the General category (female) was reduced, and only 17 posts were made available. The third- respondent issued letter dated 07.12.2016 calling upon the remaining successful candidates to appear in the interview to be held on 23.12.2016. The interviews were held on 23.12.2016, and the final result was declared on 27.12.2016. In the said list of selected candidates, the name of the fourth-respondent figured at Serial No. 12, whereas the name of the petitioner figured at Serial No. 17. While the last successful candidate, under the Uttarakhand General (Women) category, 3 secured 54 marks, the petitioner, who also belonged to the said category, secured 52 marks, and she was therefore declared unsuccessful.
6. The petitioner claims that the fourth respondent, who was selected and shown at Serial No. 12 in the list of selected candidates, had obtained her provisional certificate in AMIE on 25.03.2014, and the original certificate of passing AMIE on 16.11.2014; she had disclosed her work experience as Junior Engineer in BSNL since 2008 (prior to her obtaining her AMIE qualification); and, since Rule 14 (4) of the Uttarakhand Public Service Commission (Procedure and Conduct of Business) Rules, 2013 stipulates that the experience should have been acquired after obtaining the essential educational qualifications, the work experience shown by the fourth- respondent, admittedly prior to her securing her AMIE qualification, could not be taken into consideration; and consequently, since she did not fulfil the educational qualification prescribed in the advertisement, her selection and appointment as a Principal ITI is arbitrary and illegal.
7. Though no interim order has been passed in the writ petition, the fourth-respondent chose not to join the post of Principal ITI till date. Sri Rajendra Dobhal, learned Senior Counsel appearing on her behalf, would submit that, since the petitioner is working in BSNL and can only join the post of Principal on her submitting her resignation to the post of Junior Engineer thereat, if the order in the present writ petition is adverse to her, it would result in her losing her employment with the BSNL also; and she had, therefore, decided to await the decision in this writ petition before joining the post of Principal ITI.
8. Sri Rajendra Dobhal, learned Senior Counsel, would place reliance on Rule 8 of the Uttar Pradesh State Training (Labour Department) Service Rules, 1981 (for short the '1981 Rules) which relates to educational qualification, and requires an applicant to the post of Principal ITI to have the qualifications of a Bachelor's Degree in engineering in the subjects of mechanical, electrical, electronics, telecommunication, automobile or production, apart from an AMIE and two years' teaching experience or experience in a workshop. Learned Senior Counsel would submit that, since neither Rule 8 of the 1981 Rules nor the advertisement explicitly state that the 4 experience should be posterior to the acquisition of the prescribed academic qualifications, the Uttarakhand Public Service Commission was justified in selecting the fourth-respondent treating her pre-qualification experience as a Junior Engineer in BSNL as sufficient experience in terms of the advertisement and Rule 8 of the 1981 Rules.
9. Since learned counsel on either side have relied on several judgments in support of their submission that the experience of a candidate, even prior to her / his obtaining the educational qualification of B.E or AMIE, can or cannot be taken into consideration, it is useful to refer to the law declared in the said judgments.
10. In Shailendra Dania and others vs. S.P. Dubey and Others :
(2007) 5 SCC 535, the Rules stipulated that a diploma-holder Junior Engineers having eight years of qualifying service, and a graduate engineering degree-holder Junior Engineer with three years' qualifying service, would be considered for promotion to the post of Assistant Engineer within their quota of 25% each.
11. On the question whether the experience posterior to the acquisition of qualification can alone be taken into consideration, the Supreme Court observed:
"...Taking into consideration the entire scheme of the relevant rules, it is obvious that the diploma-holders would not be eligible for promotion to the post of Assistant Engineer in their quota unless they have eight years' service, whereas the graduate Engineers would be required to have three years' service experience apart from their degree. If the effect and intent of the rules were such to treat the diploma as equivalent to a degree for the purpose of promotion to the higher post, then induction to the cadre of Junior Engineers from two different channels would be required to be considered similar, without subjecting the diploma-holders to any further requirement of having a further qualification of two years' service. At the time of induction into the service to the post of Junior Engineers, Degree in Engineering is a sufficient qualification without there being any prior experience, whereas diploma-holders should have two years' experience apart from their diploma for their induction in the service. As per the service rules, on the post of Assistant Engineer, 50% of total vacancies would be filled up by direct recruitment, whereas for the promotion specific quota is prescribed for a graduate Junior Engineer and a diploma-holder Junior Engineer. When the quota is prescribed under the rules, 5 the promotion of graduate Junior Engineers to the higher post is restricted to 25% quota fixed. So far as the diploma-holders are 'concerned, their promotion to the higher post is confined to 25%. As an eligibility criterion, a degree is further qualified by three years' service for the Junior Engineers, whereas eight years' service is required for the diploma-holders. Degree with three years' service experience and diploma with eight years' service experience itself indicates qualitative difference in the service rendered as degree-holder Junior Engineer and diploma-holder Junior Engineer. Three years' service experience as a graduate Junior Engineer and eight years' service experience as a diploma-holder Junior Engineer, which is the eligibility criteria for promotion, is an indication of different quality of service rendered. In the given case, can it be said that a diploma-holder who acquired a degree during the tenure of his service, has gained experience as an Engineer just because he has acquired a Degree in Engineering. That would amount to say that the experience gained by him in his service as a diploma-holder is qualitatively the same as that of the experience of a graduate Engineer. The rule specifically made difference of service rendered as a graduate Junior Engineer and a diploma-holder Junior Engineer. Degree-holder Engineer's experience cannot be substituted with diploma- holder's experience. The distinction between the experience of degree-holders and diploma-holders is maintained under the rules in further promotion to the post of Executive Engineer also, wherein there is no separate quota assigned to degree- holders or to diploma-holders and the promotion is to be made from the cadre of Assistant Engineers. The rules provide for different service experience for degree-holders and diploma- holders. Degree-holder Assistant Engineers having eight years of service experience would be eligible for promotion to the post of Executive Engineer, whereas diploma-holder Assistant Engineers would be required to have ten years' service experience on the post of Assistant Engineer to become . eligible for promotion to the higher post. This indicates that the rule itself makes differentia in the qualifying service of eight years for degree-holders and 10 years' service experience for diploma holders. The rule itself makes qualitative difference in the service rendered on the same post. It is a clear indication of qualitative difference of the service on the same post by a graduate Engineer and a diploma-holder Engineer. It appears to us that different period of service attached to qualification as an essential criterion for promotion is based on administrative interest in the service. Different period of service experience for degree-holder Junior Engineers and diploma-holder Junior Engineers for promotion to the higher post is conducive to the post manned by the Engineers. There can be no manner of doubt that higher technical knowledge would give better thrust to administrative efficiency and quality output. To carry out technical specialized job more efficiently, higher technical knowledge would be the requirement. Higher educational qualifications develop 6 broader perspective and therefore service rendered on the same post by more qualifying person would be qualitatively different.
After having an overall consideration of the relevant rules, we are of the view that the service experience required for promotion from the post of Junior Engineer to the post of Assistant Engineer by a degree-holder in the limited quota of degree-holder Junior Engineers cannot be equated with the service rendered as a diploma-holder nor can be substituted for service rendered as a degree-holder. When the claim is made from a fixed quota, the condition necessary for becoming eligible, for promotion has to be complied with. The 25% specific quota is fixed for degree-holder - Junior Engineers with the experience of three years. Thus, on a plain reading, the experience so required would be as a degree- holder Junior Engineer. 25% quota for promotion under the rule is assigned to degree-holder Junior Engineers with three years' experience, whereas for diploma-holder Junior Engineers eight years' experience is the requirement in their 25% quota. Educational qualification along with number of years of service was recognized as conferring eligibility for promotion in the respective quota fixed for graduates and diploma-holders. There is watertight compartment for graduate Junior Engineers and diploma-holder Junior Engineers. They are entitled for promotion in their respective quotas. Neither a diploma-holder Junior Engineer could claim promotion in the quota of degree-holders because he has completed three years of service nor can a degree-holder Junior Engineer make any claim for promotion quota fixed for diploma-holder Junior Engineers. Fixation of different quota for promotion from different channels of degree-holders and diploma-holders itself indicates that service required for promotion is an essential eligibility criterion along with degree or diploma, which is service rendered as a degree-holder in the present case. The particular years of service being the cumulative requirement with certain educational qualification providing for promotional avenue within the specified quota, cannot be anything but the service rendered as a degree-holder and not as a diploma-holder. The service experience as an eligibility criterion cannot be read to be any other thing because this quota is specifically made for the degree-holder Junior Engineers.
As a necessary corollary, we are of the view that the diploma-holder Junior Engineers who have obtained a Degree in Engineering during the tenure of service, would be required to complete three years' service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diploma-holder Junior Engineers for promotion to the post of Assistant Engineers......" (emphasis supplied) 7
12. The law declared by the Supreme Court, in Shailendra Dania, is that degree-holder Junior Engineers, who had later obtained their degree in engineering, were required to complete three years of service in the post, after having obtained a degree, to become eligible for promotion to the higher post, if they claim promotion in the channel of degree-holder Junior Engineer, as a quota is fixed for graduate Junior Engineers and diploma-holder Junior Engineers for promotion to the post of Assistant Engineers.
13. In Suresh Nathan and another vs. Union of India and others :
1992 Supp (1) SCC 584, the qualification prescribed for promotion to the post of Assistant Engineer, from that of a Junior Engineer, was that the Junior Engineer should possess a recognized degree in Civil Engineering or equivalent with three years' service in the grade failing which Junior Engineers holding diploma in Civil Engineering with six years' service in the grade were eligible to compete for 50% of the posts of Assistant Engineers. The Junior Engineers possessing a recognized diploma in Civil Engineering with six years' service in the grade were alone eligible to be considered for promotion in other 50% quota. It is in this context that the Supreme Court observed:
"..The Recruitment Rules for the post of Assistant Engineers in the P.W.D. (Annexure-C) are at pages 57 to 59 of the paper book. Rule 7 lays down the qualifications for direct recruitment from the two sources, namely, Degree-holders and Diploma-holders with three years' professional experience. In other words, a Degree is equated to Diploma with three years' professional experience. Rule 11 provides for. recruitment by promotion from the grade of Section Officers now called Junior Engineers. There are two categories provided therein - one is of Degree-holder Junior Engineers with three years' service in the grade and the other is of Diploma-holder Junior Engineers with six years' service in the grade, the provision being for 50% from each category. This matches with Rule 7 wherein a Degree is equated with Diploma with three years professional experience. In the first category meant for Degree- holders, it is also provided that if Degree-holders with three years' service in the grade are not available in sufficient number, then Diploma-holders with six years' service in the grade may be considered in the category of Degree-holders also for the 50% vacancies meant for them. The entire scheme, therefore, does indicate that the period of three years' service in the grade required for Degree-holders according to Rule 11 as the 8 qualification for promotion in that category must mean three years' service in the grade as a Degree-holder and, therefore, that period of three years can commence only from the date of obtaining the Degree and not earlier. The service in the grade as a Diploma-holder prior to obtaining the Degree cannot be counted as service in the grade with a Degree for the purpose of three years' service as a Degree-holder. The only question before us is of the construction of the provision and not of the validity thereof and, therefore, we are only required to construe the meaning of the provision. In our opinion, the contention of the appellants Degree-holders that the rules must be construed to mean that the three years' service in the grade of a Degree- holder for the purpose of Rule 11 is three years from the date of obtaining the Degree is quite tenable and commends to us being in conformity with the past practice followed consistently. It has also been so under-stood by all concerned till the raising of the present controversy recently by the respondents. The tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the Department......" (emphasis supplied)
14. In the light of the law declared, in Suresh Nathan, service of a diploma-holder prior to obtaining a degree cannot be counted as service, in the grade with a degree, for the purpose of computing three years' service as a degree-holder.
15. In Indian Airlines Ltd. and others vs. S. Gopalakrishnan :
(2001)2 SCC 362, the Rule in question stipulated "SSC or its equivalent with three years' Government-recognized diploma in Mechanical / Electrical / Automobile Engineering and having two years' experience in equipment operations or driving and possessing current heavy vehicle driving licence, or SSC with ITI certificates or equivalent in associated trades of mechanical / electrical / automobile courses and having five years' experience in equipment operating or driving and possessing current heavy vehicle driving licence." The respondent before the Supreme Court had obtained an ITI certificate in June 1994 and had five years' experience after obtaining the certificate and diploma in Mechanical Engineering in April, 1996, which was short of the requisite qualification. Following the law laid down in N. Suresh Nathan vs. Union of India: 1992 Supp (1) SCC 584 ; Gurdial Singh vs. State of Punjab : (1995) 3 SCC 333 ; and Anil Kumar Gupta vs. Municipal Corporation of Delhi : (2000) 1 SCC 128, the Supreme Court held that 9 the experience obtained should be after obtaining the requisite qualification. The Supreme Court, thereafter, held that when, in addition to qualification, experience is prescribed, it would only mean acquiring experience after obtaining the necessary qualification and not before obtaining such qualification.
16. In Subhash, Son of Shriram Dhonde vs. State of Maharashtra and another : 1995 Supp (3) SCC 332, the Maharashtra Motor Vehicles Department (Recruitment) Rules, 1991 stipulated that a mere possession of work experience of at least one year in a reputed Automobile Workshop was enough, and the Supreme Court held that the Rules did not make any difference between acquisition of such experience prior to or after the acquisition of the basic qualification; the records showed that, even after the acquisition of the basic qualification, the appellant had acquired the additional experience of one year in a reputed Automobile Workshop; and, therefore, the Tribunal had committed an error in relying on the Circular which could not replace the rules framed under Article 309 of the Constitution of India, and in holding that the appellant did not fulfill the prescribed qualification. As the Tribunal had relied on a circular issued by the Government, the Supreme Court held that, since the rules were made under Article 309 of the Constitution of India, any circular contrary thereto could not be relied upon. Further, on the facts of the case before it, the Supreme Court also opined that the appellant had acquired additional experience of one year post acquisition of academic qualification also.
17. In Pradeep Singh Rauthan vs. Uttarakhand Public Service Commission (order in Writ Petition (S/S) No. 765 of 2012 and batch dated 21.06.2013), an advertisement was issued for filling up the posts of Assistant Regional Inspectors. The eligibility qualification for appointment to the said post was that the candidate must have a high school qualification with Science subject, three years' diploma in Mechanical Engineering and three years' practical experience in any reputed workshop where the work of repairing of light and heavy diesel and petrol vehicles was done. The Uttarakhand Public Service 10 Commission rejected the candidature of the petitioners therein on the ground that the experience of three years, which they had gained, was before they had undergone their respective diplomas, and their candidature was liable to be rejected as the experience they gained must be after obtaining the prescribed qualification.
18. A learned Single Judge of this Court, relying on Anil Kumar Gupta vs. Municipal Corporation of Delhi and others : (2001) 1 SCC 128 and Subhash, S/o Shriram Dhonde vs. State of Maharashtra and another : 1995 Supp (3) SCC 332, held that, since there was no specific stipulation in the advertisement that a candidate must have experience after he had obtained his diploma, the experience of the candidate, obtained even prior to acquiring a diploma, must be held to be a proper experience. Aggrieved thereby, the Uttarakhand Public Service Commission carried the matter in appeal, and a Division Bench of this Court, in its order in Special Appeal No. 508 of 2013 and batch dated 19.03.2015, noted that the conclusion of the learned Single Judge was based on the judgments of the Supreme Court in Anil Kumar Gupta vs. Municipal Corporation of Delhi and others : (2001) 1 SCC 128 and Subhash, S/o Shriram Dhonde vs. State of Maharashtra and another : 1995 Supp (3) SCC 332. The appeal preferred by the Uttarakhand Public Service Commission was, accordingly dismissed.
19. The Uttarakhand Public Service Commission, thereafter, carried the matter in appeal to the Supreme Court against the order of the Division Bench in Special Appeal No. 508 of 2013 and batch dated 19.03.2015, and SLP Nos. 17243-17244 of 2015 were dismissed by the Supreme Court by its order dated 10.07.2015. The order of the Supreme Court reads thus:
"The special leave petitions are dismissed."
20. In Anil Kumar Gupta vs. Municipal Corporation of Delhi and others : (2001) 1 SCC 128, the Supreme Court observed that the Notification stipulated that the essential qualification for appointment was a degree in Civil Engineering and two years' professional experience; and, on the language of the notification, two years' professional 11 experience need not entirely be experience gained after obtaining the degree.
21. The aforesaid judgments of the Supreme Court are based on a construction of the relevant rules / notifications applicable to the cases before it. The Supreme Court has, in some cases, held that the experience obtained even prior to obtaining the educational qualification can also be reckoned as satisfying the requirement of possessing the requisite experience, when the advertisement does not expressly stipulate that the experience should only be after obtaining the qualification, and in some others it has held that pre-qualification experience cannot be relied upon.
22. It is unnecessary for us to dwell on this matter any further in view of Rule 14(4) of the of the Uttarakhand Public Service Commission (Procedure and Conduct of Business) Rules, 2013. These Rules were framed under Section 11(1) of the Uttar Pradesh State Public Service Commission (Regulation of Procedure) Act, 1985 (for short the '1985 Act'), and was adopted by the Uttarakhand Adaptation and Modification Order, 2002. Section 11 of the 1985 Act relates to the rule-making power and, under sub-Section (1) thereof, the Public Service Commission may make rules, not inconsistent with the provisions of the Act, for regulation of its procedure. Rule 14(4) of the 2013 Rules read as under:
"...In cases where the qualification advertised for a post include a period of practical or other experience, in addition to educational / technical qualification, such a period of practical or other experience, as the case may be, should have been acquired after obtaining the essential educational / technical qualification prescribed for such posts unless otherwise specified. Certificate regarding practical experience, if any, prescribed should conform to the requirement notified / advertised and it should not be later than the last date of submission of application form."
23. Rule 14(4) of the 2013 Rules stipulates that, where the qualification advertised for a post includes experience in addition to educational / technical qualification, the experience should have been acquired after obtaining the essential educational / technical qualification prescribed for such post, unless otherwise specified.
1224. In the present case, the advertisement does not specify that the experience before obtaining the educational qualification can be reckoned as an eligibility qualification for being considered for appointment to the post of Principal ITI. In the absence of any such stipulation, Rule 14(4) of the 2013 Rules required the Public Service Commission to reckon only the post-acquisition qualification experience as the requisite experience to be considered for selection and appointment to the post of Principal ITI.
25. Admittedly in the present case, the fourth respondent's experience is prior to her obtaining her AMIE qualification, and not subsequent thereto.
26. While the Division Bench of this Court had, in its order in Special Appeal No. 508 of 2013 and batch dated 19.03.2015, no doubt dismissed the appeal preferred by the Uttarakhand Public Service Commission against the order passed by the learned Single Judge in Writ Petition (S/S) No. 765 of 2012 and batch dated 21.06.2013, wherein the learned Single Judge had held that the experience gained even prior to obtaining the educational qualification would suffice, the fact remains that neither was the attention of the learned Single Judge, nor that of the Division Bench, drawn to Rule 14(4) of the 2013 Rules which obligates the Uttarakhand Public Service Commission, in the absence of any specification to the contrary, to reckon only the post-qualification experience as the required experience for selection and appointment to posts to be filled by the Uttarakhand Public Service Commission.
27. The decision of a Court is only an authority for what it actually decides. What is of the essence in a decision is its ratio, and not every observation found therein nor what logically follows from the various observations made in it. (State of Orissa v. Sudhansu Sekhar Mistra and others : AIR 1968 SC 647; Quinn v. Leathem : 1901 AC 495). Since the attention of the Division Bench was not drawn to Rule 14(4) of the 2013 Rules, which binds the Uttarakhand Public Service Commission, the said order of the Division Bench cannot be understood as a precedent binding on us.
1328. Since the judgments relied on by the learned counsel on either side are based on the rules/notification which fell for consideration before it, and as no Rule similar to Rule 14(4) of the 2013 Rules, fell for consideration in any of the judgments, the case of the fourth-respondent must be decided in the light of Rule 14(4) of the 2013 Rules, which were made by the Uttarakhand Public Service Commission, and are binding upon it. Since the 4th respondent does not possess the required experience of two years after she completing her AMIE, her selection and appointment as a Principal ITI must be, and is accordingly, set aside. The Uttarakhand Public Service Commission shall recommend the name of the next most meritorious candidate in the select list for appointment to the post of Principal ITI within two months from the date of production of a certified copy of this judgment.
29. The writ petition stands disposed of accordingly. No costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.)
19.11.2019 19.11.2019
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