Gujarat High Court
Maheshkumar Bhanabhai Parmar & vs State Of Gujarat Thro Secretary & 3 on 30 April, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/LPA/277/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 277 of 2014
In SPECIAL CIVIL APPLICATION NO. 17516 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MAHESHKUMAR BHANABHAI PARMAR & 1....Appellant(s)
Versus
STATE OF GUJARAT THRO SECRETARY & 3....Respondent(s)
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Appearance:
MR NK MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 - 2
MS JIRGA JHAVERI, AGP for the Respondent(s) No. 1 - 2
MR KARTIK PANDYA WITH MR DEVANG VYAS, ADVOCATE for the
Respondent(s) No. 3
MR KT DAVE, ADVOCATE for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
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C/LPA/277/2014 JUDGMENT
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 30/04/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Appellants-petitioners have challenged the judgement of the learned Single Judge dated 22.01.2013 passed in Special Civil Application No. 17516 of 2012. Petitioner No.1 possessed the qualification of National Trade Certificate (Instrument Mechanic). He has also successfully completed apprenticeship training and issued certificate by the Director of Employment and Training, Government of Gujarat. Petitioner No.2 has also undertaken training of ITI and has been awarded the certificate of National Trade as Electrician. In the writ petition, their challenge was to the Rule 3 of Supervisor Instructor (Engineering Trade, Non-Engineering Trade) Class II in the Gujarat Skill Training Service Recruitment Rules 2008. (hereinafter to be referred to Page 2 of 13 C/LPA/277/2014 JUDGMENT as 'the Rules of 2008'). The petitioners' challenge was that, Rule 3 which prescribed the eligibility for appointment to the post of Supervisor Instructor, Class III by way of direct selection, did not include the category of candidates holding national apprenticeship certificate or national trade certificate in the relevant trade. In absence of such qualification, the petitioners are rendered ineligible to apply for the posts in question. Case of the petitioners is that, the earlier recruitment rules framed by the Government recognized these qualifications also as sufficient for eligibility. The petitioners' principal attack to the rules is that, the National Counsel for Vocational Training, [NCVT for short] which is the governing body framed by the Central Government for the purpose of laying down standards for vocational training in the country, had, in its meeting dated 15.12.2008, recognized three educational qualifications as sufficient for appointment of vocational instructors in ITI/ITC for different trades. According to the petitioners, therefore, the State Page 3 of 13 C/LPA/277/2014 JUDGMENT rules which do not recognize the national apprenticeship certificate or national trade certificate as one of the qualifications for the post of Supervisor Instructor runs counter to the directives of the central body.
2. Having failed in persuading learned Single Judge to accept the challenge, the petitioners have preferred this appeal. Learned counsel Mr. N.K.Majmudar vehemently contended that the State Government though had powers under Article 309 of the Constitution to frame the Recruitment Rules, nevertheless, was bound by the directives of the NCVT. The counsel would contend that NCVT was the Central Organization concerned with the vocational training in the country and had laid down the standards for appointment of instructors in such vocational training centers. He drew our attention to a communication dated 15.12.2008 from the Directorate General of Employment and Training to all the State Governments and Union Territories pointing out that:
Page 4 of 13C/LPA/277/2014 JUDGMENT "This is to inform you that the 37th meeting of the National Council for Vocational Training )NCVT) under the Chairmanship Hon'ble Minister of State for Labour & Employment (IC), was held on 23rd November, 2008. Norms for instructor qualification for trades under Craftsmen Training Scheme were discussed vide Agenda Item No. 3.4 in the meeting.
2. Following minimum Qualification (academic as well as technical) for appointment of vocational instructor in ITIs/ITCs for trades under CTS was approved by the council.
Qualification Experience in Desirable trade relevant field after technical qualification Academic Technical 10th Class I.Degree in One year for Passed pass or Engineering/ Three degree and two Principle of equivalent year Diploma in years for Teaching appropriate branch Diploma. (POT) course of trade concerned from any of or Three years for DGE&T ii. National NAC/NTC institutes. Apprenticeship Certificate or National Trade Certificate in relevant trade • Degree should be from recognized University.
• Diploma should be from recognized Board/Institution.
3. Government of India has accepted the above recommendation of Council for implementation with immediate effect.
Page 5 of 13C/LPA/277/2014 JUDGMENT Accordingly, instructions with above qualification should be appointed in ITIs/ITCs and same would be strictly followed for grant of affiliation of these institutes."
3. The counsel, therefore, submitted that such educational qualifications prescribed by the NCVT for the post of Instructors in the State Government Technical Training Institution ought to have been adopted. The State Government in the impugned Rule recognized only the degree and diploma in concerned field as sufficient qualifications. Counsel placed heavy reliance on the decision of learned single Judge of Allahabad High Court in case of Upendra Narain Sing Son or Ram vs. State of UP to contend that the State Government was bound by the directives of NCVT with respect to the essential educational qualifications for appointment of the post of instructors.
4. The learned advocates for the respondents opposed the appeal.
5. The learned single Judge referring to the directives of NCVT noted above, dismissed the writ petition making Page 6 of 13 C/LPA/277/2014 JUDGMENT following observations:
"2. ... ... ...
This wordings would clearly indicate that what was intended by the competent authority by issuing direction was to maintain minimum educational qualification criteria and hence when there is already a mentioning of degree in engineering or 3 years diploma in appropriate branch or trade and the State has on account of availability of such qualified persons prescribed the said qualifications for appointment and recruitment, then the Recruitment Rules cannot be frowned upon on account of so called mandate, which in my view is not a mandate so as to provide for qualifications criteria.
3. Learned counsel has relied upon the Division Bench judgment in Special Civil Application No. 10199 of 2011 & allied matters in case of Prajapati Paresh Govindbhai & Others Vs. State of Gujarat Through Principal Secretary & Others, decided on 02/12/2011 to draw an analogy between two institutions which have been the effect of issuing directives. Unfortunate, it is, that the counsel has again not perceived status of the issuing authority nor has he pointed out any binding effect. The fact of that case would have no bearing upon the facts of present case. Present case is in respect of Recruitment Rules based upon the directives which itself contain qualifications and the alternative qualifications. The minimum qualification when is prescribed, then, it is to be Page 7 of 13 C/LPA/277/2014 JUDGMENT understood and appreciated that any qualifications lesser than that qualifications is not to be prescribed.
4. The entire petition is therefore misconceived and is required to be rejected and is accordingly rejected. However in view of the peculiar facts of the case there shall be no order as to costs."
6. In exercise of powers under Article 309 of the Constitution of India, the State Government has framed the said Rules which came into effect from 29.09.2008 and applied to the appointment of the post of Supervisor Instructor (Engineering Trade, Non-Engineering Trade) Class-III in the Gujarat Skill Training Service. Rule 2 provides that such appointment shall be by direct selection. Rule 3 prescribes the eligibility criteria as under:
"3. To be eligible for appointment by direct selection to the post mentioned in rule-2, a candidate shall, (A) not be less than 18 years of age and more than 28 years of age.
(B) possess,
(i) a degree in engineering or technology Page 8 of 13 C/LPA/277/2014 JUDGMENT obtained from any of the universities establish or incorporated by or under the Central or State Act in India, or any other educational institution organized as such or declared to be deemed as University under section 3 or the University Grants Commission Act, 1956 or possess an equivalent qualification recognized by the Government: or
(ii) a diploma in engineering or technology obtained from a Technical Examination Board or an equivalent qualification recognized by the Government and have three years experience in the field of engineering or technology;
(iii) the educational/technical qualification shall be such as to suit the post as per concerned trade and shown against the post in Appendix A and B of these rules.
(C) possesses the basic Knowledge of Computer Application as prescribed in Gujarat Civil Services Classification and recruitment (General) Rules 1967; as amended from time to time.
(D) Possess adequate knowledge of Gujarati and Hindi."
7. It can thus be seen that the degree in technology or qualification equivalent recognized by the Government and Diploma in Engineering or Technology with three years experience in the field of Page 9 of 13 C/LPA/277/2014 JUDGMENT Engineering or Technology are considered essential qualifications for the post in question. In other words, for a candidate to be eligible to apply for the post he would either have to possess a degree in Engineering or Technology or equivalent or Diploma in Engineering or Technology with three years experience. The third qualification viz. National apprenticeship certificate or national trade certificate is not prescribed as sufficient qualification. If the deviation by the State Rules as compared to the decision on the NCVT was to dilute the prescribed essential qualification, the contention of the counsel for the petitioner that the same was not permissible, would merit further consideration. However, in the present case, the standards prescribed by the State Government in the statutory rules are more stringent than those prescribed by NCVT. In other words, the NCVT recognized three different qualifications as sufficient for eligibility for the post in question, against which, the State Government deleted the last category maintaining only Page 10 of 13 C/LPA/277/2014 JUDGMENT a degree or diploma with three years experience. It is well settled that even where as per the constitutional scheme a central governing body has prescribed certain minimum qualifications either for education or employment, it is open for the State agency to lay down more stringent and higher qualifications, not to prescribe qualifications which would water down the prescription of the Central Governing body. It was, in this context, the learned Single Judge of the Allahabad High Court was called upon to examine the challenge to the amendment with the rules made by the Government of Uttar Pradesh. A perusal of the judgement would show that the the State Government having once implemented the recommendations of the NCVT prescribing qualifications for the post in question later on amended the rules by deleting the higher qualifications and thus making candidates with lower qualifications eligible for appointment to the post in question. It was, in this background, the Court struck down the rule making following observations:
Page 11 of 13C/LPA/277/2014 JUDGMENT "32. I find substance in the
submissions of Shri A N Tripathi. The State Government having acted upon the directions of the Central Government and amended the rules, was not competent to again amend the rules lowering the higher teaching qualifications and making them preferential. The State Government rightly understood its legal obligations and the constitutional scheme. Having accepted the position, the State Government acted grossly illegal and arbitrarily in amending the rules by 3rd Amendment, in violation of Article 14 and 16 of the Constitution, The Court takes judicial notice of the fact in the State of U.P the teaching standards in all the educational institutions are falling gradually. In order to improve these standards, the national level teaching institutions have been established offering higher teaching qualifications and the Central Government in insisting the State Government to appoint only such teachers, who have higher and specific teaching qualifications. The candidates possessing such higher teaching qualifications have legitimate expectation to be considered for appointment on teaching posts. In case the State Government allows the persons having lower teaching qualifications to hold the posts, the rights or candidates having higher teaching qualifications will be violated. It will give rise to invidious discrimination and violate their constitutional right of equality before law."
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8. In the result, we find no error in the decision of the learned Single Judge. It was not even the case of the petitioner that the State Government did not have authority to frame the rules. Such authority could be traced to Article 309 of the Constitution. It is well settled that the Court would start with the presumption of constitutionality. Though the supporting legislation does not enjoy the same level of immunity as the law framed by the legislature, be it Union or State, it would be the duty of the petitioner to canvass that the Rule is invalid to demonstrate the same.
9. In the result, appeal is dismissed.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) Jyoti Page 13 of 13