Himachal Pradesh High Court
Between vs State Of Himachal Pradesh Through on 14 September, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
1
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 14th DAY OF SEPTEMBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE VIRENDER SINGH
CIVIL WRIT PETITION No. 4925 OF 2021
Between:-
RAJENDAR SINGH
S/O SHRI MEHAR SINGH,
RESIDENT OF VILLAGE BUTHAN,
P.O. LOHARLI, TEHSIL BARSAR,
DISTRICT HAMIRPUR, H.P.
....PETITIONER
(BY MR. AJAY SHARMA, SENIOR
ADVOCATE WITH MR. AJAY KUMAR
THAKUR, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH THROUGH
SECRETARY (PERSONNEL) TO THE GOVERNMENT
OF HIMACHAL PRADESH SHIMLA-171002.
2. DIRECTOR SAINIK WELFARE,
HIMACHAL PRADESH, SAINIK BHAWAN,
HAMIRPUR, DISTRICT HAMIRPUR, H.P.
THROUGH ITS DIRECTOR.
3. THE SUB-REGIONAL EMPLOYMENT OFFICER,
EX-SERVICEMEN EMPLOYMENT CELL,
HAMIRPUR, DISTRICT HAMIRPUR, H.P.
4. UNION OF INDIA THROUGH SECRETARY,
MINISTRY OF LABOUR & EMPLOYMENT,
GOVERNMENT OF INDIA, NEW DELHI.
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2
5. THE DIRECTOR GENERAL OF EMPLOYMENT
& TRAINING, GOVERNMENT OF INDIA,
NEW DELHI. 110065.
..RESPONDENTS
.
(MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. RAJINDER
DOGRA, SENIOR ADDITIONAL
ADVOCATE GENERAL, MR. VINOD
THAKUR, MR. SHIV PAL MANHANS,
ADDITIONAL ADVOCATE GENERALS,
MR. BHUPINDER THAKUR, MR.
YUDHVIR SINGH THAKUR, DEPUTY
ADVOCATE GENERALS AND MR.
RAJAT CHAUHAN, LAW OFFICER FOR
R-1 TO R-3.
MR. SHASHI SHIRSHOO, CENTRAL
GOVERNMENT STANDING COUNSEL
FOR R-4 AND R-5)
Reserved on: 24.08.2022
Decided on: 14.09.2022
__________________________________________________________________
This petition coming on for admission on this day,
Hon'ble Mr. Justice Virender Singh, passed the
following:-
ORDER
Petitioner Rajinder Singh has sought the indulgence of this Court by way of the present writ petition filed under Article 226 of the Constitution of India.
2. By virtue of the present writ petition, petitioner Rajinder Singh has sought the following relief:-
i) That impugned act of the respondents No.1 to 3 in orally rejecting the candidature of the petitioner for the post of Junior Office Assistant and then taking no decision on ::: Downloaded on - 15/09/2022 20:02:34 :::CIS 3 the representation of the petitioner, in law, amounts to executive inaction and same may very kindly be quashed and set aside with directions to respondents No.1 to 3 to consider the candidature of the petitioner .
and recommend his name to the Government for the post of Junior Office Assistant and allotting the Department in the State of H.P."
3. The above mentioned relief has been sought on the ground that he is an ex-serviceman and during his service, a certificate, Annexure P-1, was awarded to him by the Government of India.
4. In the certificate, Annexure P-1, the Army authorities had granted a Trade Proficiency Certificate in Trade, described as "Clerk S.D." which is described as equivalent to Civil Trade, Clerk General, Typist, Diarist, Enquiry Clerk, Record Clerk, Assistant Office, Accounts Clerk, as per the National Council of Training for Vocational Training/National Apprentice Certificate. It has also been mentioned in the Certificate, Annexure P-1, that the certificate, Annexure P-1 shall be treated at par with the certificate issued by N.C.V.T/N.C.T.V.T, in view of the equation for employment purposes by all States and Central Government Departments. The qualification of the petitioner in the certificate Annexure P-1, has been mentioned as 10+1.
::: Downloaded on - 15/09/2022 20:02:34 :::CIS 45. After superannuating from the army, the petitioner has also passed a Diploma in Computer applications from HIMTEC Education System, which, .
according to him, has been recognized by the Government of Himachal Pradesh. Thereafter, the petitioner got himself enrolled in the Sub-Regional Employment Office, Ex-
servicemen Cell.
6. The State of Himachal Pradesh has decided to fill up 2000 posts of Junior Office Assistants (JOA) (IT) on contract basis. About 400 posts were reserved for the ex-
servicemen, which were allocated to the Sainik Welfare Department, Himachal Pradesh to be filled-up from amongst the eligible ex-servicemen, as per the procedure prescribed.
7. Vide Notification dated 25.08.2020 (Annexure P-
3), the Himachal Pradesh Department of Personnel Junior Office Assistant (IT) Class III (Non-Gazetted) Ministerial Service Common Recruitment & Promotion Rules, 2017 were amended.
8. Highlighting Rule 2(b) of the amended Rules of 2020, It has been pleaded that the essential qualification for the post, for which, the petitioner has applied, is 10+2 from a recognized Board of School Education/University or ::: Downloaded on - 15/09/2022 20:02:34 :::CIS 5 Matriculate from Board of School Education with one/two year's diploma certificate from Industrial Training Institute (ITI) in Information Technology (IT) and Information .
Technology Enabled Sectors (ITES), as notified by the Directorate General of Employment & Training, Government of India, from time to time.
9. Since the name of the petitioner was registered with the ex-servicemen cell, as such, the call letter (Annexure P-4) was issued, directing him to appear before the Ex-servicemen Employment Cell, on 20.03.2021, at 9.30 a.m. The said call was made for the submissions of the documents, so that the same could be verified.
10. Consequently, the petitioner appeared, where he has been told that his qualification is not as per the Rules, as such, he is not eligible.
11. The petitioner has also submitted the written representation Annexure P-4, in this regard and also visited the office of respondents No. 2 and 3 number of times, but, no heed was paid by the respondents.
12. Reiterating the stand that he is having the requisite qualifications, for the post, for which, he has applied, it has been prayed that his right to be considered has wrongly been rejected by the respondents.
::: Downloaded on - 15/09/2022 20:02:34 :::CIS 613. On the basis of the above facts, a prayer has been made to allow the writ petition by granting the relief as claimed therein.
.
14. The writ petition has been contested by the respondents.
15. Respondents No. 2 and 3, in their reply, have taken the stand that as per the Rules, governing the post in question, the eligible candidate must have passed 10+2 examination r from the Board of School Education/University or Matriculation from recognized Board of School Education with one/two year's Diploma/Certificate from an Industrial Training Institute (ITI) in Information Technology (IT) and Information Technology Enabled Sector (ITES).
16. The qualification of the petitioner has been stated to be matriculate, having Trade Proficiency Certificate Annexure P-1, as well as, Diploma in Computer Application from Private Institute, situated at Bangana, Distt Una, H.P.
17. Hence, it has been pleaded that the petitioner is not possessing the requisite qualification for being considered for the post of JOA (IT).
::: Downloaded on - 15/09/2022 20:02:34 :::CIS 718. Respondents No. 4 and 5, in their separate reply, have taken the plea that certificate Annexure P-1 was issued by the authority under the .
Craftsman/Apprenticeship Training Scheme, which is stated to be the apex organization for development and co-
ordination at national level, for the programmes relating to the vocational training for the Army people. All the grounds taken in the writ petition are stated to be baseless.
19. We have heard learned counsel for the parties and have also gone through the record of the case.
20. Vide Notification (Annexure P-3), the Governor, Himachal Pradesh has amended the Rules, known as 'Himachal Pradesh Department of Personnel Junior Office Assistant (IT) Class III (Non-Gazetted) Ministerial Service Common Recruitment & Promotion Rules, 2017' by exercising the powers conferred by proviso to Article 309 of the Constitution of India. The qualification for the JOA (IT) has been mentioned in Rule 2(b) of the amended Rules, 2020, which is reproduced as under:-
2. In Annexure-A to the Himachal Pradesh, Department of Personnel, Junior Office Assistant (Information Technology), Class-III (Non-Gazetted) Ministerial Services, Common Recruitment and ::: Downloaded on - 15/09/2022 20:02:34 :::CIS 8 Promotion Rules, 2017 (hereinafter referred to as the "said rules"):-
(a) .................
.
(b) For the existing provisions against Col. No.7, the following shall be substituted, namely:- "(a) ESSENTIAL QUALIFICATION (S):
(i) Should have passed 10+2 Examination from a recognized Board of School Education/ University.
OR Matriculation from recognized Board of School Education with one/two year's Diploma/Certificate from Industrial Training Institute (ITI) in Information Technology (IT) & Information Technology Enabled Sectors (ITES) as notified by Director General of Employment & Training (Govt. of India) from time to time or three years Diploma in Computer Engineering/. Computer Science/TT from a Polytechnic as approved by All India Council for Technical Education (AICTE):
(ii) Computer typing speed of 30 words per minute in English or 25 words per minute in Hindi.
Provided that visually impaired persons selected/ recruited under 1% quota will be exempted from acquiring Diploma in Computer Science/Computer Application/Information Technology and passing of typing test instead they shall be imparted necessary basic training including computer training course by the Department concerned through Composite Regional Centre (CRC), Sundernagar or National Institute for the Visually Handicapped (NIVH), ::: Downloaded on - 15/09/2022 20:02:34 :::CIS 9 Dehradun or Composite Training Centre (CTC), Ludhiana. They shall have to complete the above training for which three chances will be afforded. If the incumbent fails to qualify the same his/ her .
services shall be terminated. However, the incumbents already in the service shall be afforded sufficient number of chances to complete the aforesaid training:
Provided further that differently abled persons who are otherwise qualified to hold clerical post as certified being unable to type, by the Medical Board, may be exempted from passing the typing test.
Explanation:- The term, "differently abled persons" does not cover visually impaired persons or persons who are hearing impaired but cover only those whose physical disability/ deformity permanently prevents them from typing.
The above criteria for grant of exemption from passing the typing test shall also be applicable to the Skill Test Norms on Computers.
(b) DESIRABLE QUALIFICATION(S):
Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh."
21. Petitioner has passed 10+1 examination. By virtue of certificate Annexure P-1, a Diploma in the trade Clerk (S.D.) was awarded to him, which is stated to be equivalent to civil trade Clerk General, Typist, Diarist, Enquiry Clerk, Record Clerk, Assistant Office, Accounts ::: Downloaded on - 15/09/2022 20:02:34 :::CIS 10 Clerk as per the National Council of Training for Vocational Trades. Learned counsel appearing for the petitioner could not satisfy the conscious of this Court as to how, the .
qualification, as mentioned in Annexure P-1 is equivalent to "one/two year's Diploma/Certificate from an Industrial Training Institute (ITI) in Information Technology (IT) & Information Technology Enabled Sectors (ITES), as notified by Director General of Employment & Training (Govt. of India), from time to time, or three years Diploma in Computer Engineering/Computer Science/IT from a Polytechnic, as approved by All India Council for Technical Education (AICTE).
22. Another document, which has been relied upon by the learned counsel for the petitioner to demonstrate that he has also obtained the Diploma in Computer Applications is Annexure P-2. The said certificate was issued by one HIMTEK Computer Education System, which, admittedly, does not fall within the definition of "Industrial Training Institute" (ITI).
23. There is no ambiguity in the Rules. Once the Rules have been framed by the statutory authority, which has been authorized to lay down the minimum qualification for appointment of a person as JOA (IT), it ::: Downloaded on - 15/09/2022 20:02:34 :::CIS 11 would not be permissible for this Court, under Article 226 of the Constitution of India, to tinker with the qualification, as prescribed by the Rules or expand the ambit of the .
prescribed qualification, by including the Diploma(s) Annexure P-1 and Annexure P-2 heavily relied upon by the petitioner. Since the petitioner is not having the requisite qualification, as such, he is not entitled for the relief, as claimed, in the present writ petition.
24. In view of the discussion made above, there is no merit in the petition and the same is accordingly dismissed. Pending application(s), if any, also stands disposed of.
( Tarlok Singh Chauhan )
Judge
September 14, 2022 ( Virender Singh )
(naveen) Judge
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