Gauhati High Court
Bhaskar Jyoti Gogoi vs The Oil And Natural Gas Company Ltd. And ... on 29 September, 2021
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/9
GAHC010115152020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3371/2020
BHASKAR JYOTI GOGOI
S/O. DONDESWAR GOGOI, VILL. MAHIMELIA, P.O. HABICHUKIA, P.S.
GHILADHARY, DIST. GOLAGHAT, ASSAM.
VERSUS
THE OIL AND NATURAL GAS COMPANY LTD. AND ANR.
REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR, NEW DELHI.
2:THE OIL AND NATURAL GAS CO. LTD.
REP. BY THE DY. GENERAL MANAGER (HR-I/C HR/ER
ASSAM ASSET
NIZIRA
785685
Advocate for the Petitioner : MR H DAS
Advocate for the Respondent : MR. B K DAS
Linked Case : WP(C)/3373/2020
LALIT UPADHYAYA
S/O. HARI PRASAD UPADHYAYA
VILL. KHATOWAL GAON
P.O. SOOTEA
P.S. SOOTEA
DIST. BISWANATH
ASSAM
Page No.# 2/9
PIN-784175
ASSAM.
VERSUS
THE OIL AND NATURAL GAS COMPANY LTD. AND ANR.
REP. BY ITS CHAIRMAN AND MANAGING DIECTOR
NEW DELHI.
2:THE OIL AND NATURAL GAS CO. LTD.
REP. BY THE DY. GENERAL MANAGER (HR-I/C HR/ER
ASSAM ASSET
NAZIRA
785685.
------------
Advocate for : MR H DAS
Advocate for : MR. B K DAS appearing for THE OIL AND NATURAL GAS
COMPANY LTD. AND ANR.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 29.09.2021 Heard Mr. H. Das, learned counsel for the petitioner and Mr. B.K. Das, learned Standing Counsel for the respondents.
2) The petitioner is an ex-serviceman, who had retired from Indian Navy. The petitioner holds qualification of Petty Officer Electrical and Power Rank. It is projected that the said qualification is equivalent to Electrical Competency Certificate of Industrial Training Institute (ITI for short). An advertisement No. 01/2019 was issued by the respondent authority for filling up 25 (twenty five) posts, out of the same, 5 (five) posts are reserved for Ex- Servicemen, which appeared at Sl. No.-B(19) of the said advertisement. Being Page No.# 3/9 qualified, the petitioner has submitted his candidature online and after having satisfied with the qualification, admit card/call letter was issued by the respondents directing the petitioner to appear on 18.06.2019 for Computer Based Test (CBT) by the respondent authority. The respondent authority had sent an email to the petitioner to upload the required documents and in response, the petitioner, on the same day, i.e. 26.11.2019 had uploaded all the documents as sought for and was waiting for document verification and performance of skill test. However, when no positive action was forthcoming for the said verification and test, the petitioner enquired and he came to know about publication of select list on 16.07.2020 (Annexure-9) selecting 25 candidates by adjusting 5 (five) post of reserved for Ex-Servicemen in violation of Rule 4(3) of Ex-Servicemen (Re-employment in Central Civil Service and Post) Rules, 1979. Thereafter, the petitioner, on 18.08.2020 had submitted a representation by email highlighting the discriminatory actions of the respondents with request to resolve the matter and a copy of the same was marked to the Director of Ex-Servicemen Affairs and in response, the said authority informed the respondent that the petitioner is duly qualified and, as such, his case may be considered. The petitioner had sent an email dated 21.08.2020 to the respondents with request to furnish information as to who are the 5 (five) persons of general category appointed against the Ex-Servicemen category to join in the said post on or before 31.08.2020 and the said respondents are yet to furnish the names of the said 5 (five) candidates. The impugned action of the respondents is in violation of Rule 4(3) of Ex-Servicemen (Re-employment in Central Civil Service and Post) Rules, 1979 and in violation of the cardinal principles of "Audi Alteram Partem" Rules of Natural Justice. Accordingly, by filing this writ petition under Article 226 of the Constitution of Page No.# 4/9 India, the petitioner has prayed for a direction to appoint the petitioner to the post of Junior Assistant Technician (Electrical), for setting aside and quashing the select list and merit dated 16.07.2020 (Annexure-9), and for setting aside RTI reply dated 24.07.2020 (Annexure-12) in so far as it relates to rejection of the petitioner is concerned.
3) An employment advertisement no. 1/2019 (R&P) for Non- Executives of ONGC, Assam, amongst others, inviting applications for filling up the post of Junior Assistant Technician (Electrical), an A-1 level post. The prescribed minimum essential qualification was (1) High School or Class-X equivalent Board Examination, and (2) Trade Certificate in Electrician Trade. (3) Should have valid Certificate of Competency as Electrical Supervisor. It is not in dispute that the petitioner satisfies the minimum educational qualification and holds equivalency certificate in Electrician Trade. However, the petitioner does not hold the Certificate of Competency as Electrical Supervisor. Hence, there appears to be no need to discuss the documents held by the petitioner in this regard.
4) The learned counsel for the petitioner submits that the Certificates issued by the competent Naval Authorities leaves no room for doubt that the petitioner holds requisite trade qualification to hold the post of Supervisor/ Foreman and is otherwise eligible to be appointed as the Project Engineer, Electrical if engaged in Electrical Construction Project work and in this regard, reliance is heavily placed on a communication dated 25.03.2021 (Annexure-16 of the affidavit-in-reply). Therefore, it is submitted that the candidature of the petitioner could not have been rejected on the flimsy ground Page No.# 5/9 of not possessing a valid Certificate of Competency as Electrical Supervisor. It is also submitted that the equivalency trade certificate possessed by the petitioner demonstrates that the petitioner was having higher qualified than what was required to be appointed as Electrical Supervisor. Referring to the National Classification of Occupation, 2015 (Annexure-15 of the affidavit-in-reply), it is submitted that the petitioner had NCO-2015 Equivalent certificate Code 3122.5400 (NCO-2004 Code 7238.30), which qualifies him for the Trade of Supervisor and Foreman, Aircraft Repairing; and that the petitioner also had NCO-2015 Equivalent Certificate Code 2151.0100 (NCO-2004 Code 2143.10), which qualifies the petitioner for the Trade of Electrical Engineer, General. Accordingly, it is submitted that by denying employment to the candidature of the petitioner was rejected on flimsy ground and that it had violated the Government policy of ensuring re-employment of Ex-Servicemen under the Ex- Servicemen (Re-Employment in Central Civil Service and Post) Rules, 1979. It is also submitted that the candidature of the petitioner was rejected without hearing him, which violates the principle of audi alteram partem. It is also submitted that the petitioner had not been provided the details of 5 (five) persons who were from general category, but appointed in posts reserved for ex-servicemen quota. In support of his contentions, the learned counsel for the petitioner has placed reliance on the following cases, viz., (i) Basic Education Board, U.P. vs. Upendra Rai & Ors., (2008) 3 SCC 432; (ii) State of Orissa vs. Mohd. Yunus & Ors., 1994 Supp (2) SCC 55; (iii) Ex Petty Officer (Electrical Radio) Ranvir Singh Verma vs. Union of India & Ors., W.P.(C) 3451/2016 and CM No. 14744/2016 decided on 29.08.2016; and Ranbir Singh vs. D.S.S.S.B. & Anr., decided on 18.01.2002 reported in Indiankanoon.org/doc/1710366.
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5) The learned counsel for the respondents has submitted that the place of work in which the petitioner would be employed is an oil-field, which is covered by Mines Act, 1952. Accordingly, unless the petitioner holds a licence from the competent authority under the Electricity Act, 2003 and the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010, the petitioner would not qualify to be holding a Certificate of Competency as Electrical Supervisor. In this regard, the learned counsel for the respondents places reliance on NCO-2015 Equivalent certificate Code 3122.5600 (NCO-2004 Code 7248.10), which would have qualified the petitioner for the Trade of Supervisor and Foreman, Electrical and Electronic Equipment. Accordingly, it is submitted that the writ petition is without any merit. It is also submitted that the employment advertisement itself contains in Note for Candidates - clause-C(viii) that "If sufficient number of eligible and suitable Ex- Servicemen candidate is not available to fill up the posts reserved for them, then the vacant posts may be filled up by other candidates ." Therefore, there was no illegality in appointing others in such posts.
6) It is not in dispute that the petitioner is required to work in an oil field. The statement by the learned standing counsel for the respondents is not disputed that an oil field is covered by Mines Act, 1952. The provisions of Rule 3 of the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 relates to designation of person(s) to operate and carry out work on electrical lines and apparatus. The provisions of Rule 3(3) thereof is quoted as follows:-
"(3) No person shall be designated under sub-regulation (1) unless, -
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(i) he possesses a certificate of competency or electrical work permit, issued by the Appropriate Government.
(ii) his name is entered in the register referred to in sub regulation(2)."
7) Therefore, the requirement of the said rules is that one must possess a certificate of competency or electrical work permit to have the competency to work as supervisor in the establishment of the respondents. Admittedly, the petitioner does not possess the same. The provisions of Rule 29 provides as follows:-
"29. Precautions to be adopted by consumers, owners, occupiers, electrical contractors, electrical workmen and suppliers:-
(1) No electrical installation work, including additions, alterations, repairs and adjustments to existing installations, except such replacement of lamps; fans, fuses, switches, domestic appliances of voltage not exceeding 250V and fittings as in no way alters its capacity or character, shall be carried out upon the premises of or on behalf of any consumer, supplier, owner or occupier for the purpose of supply to such consumer, supplier, owner or occupier except by an electrical contractor licensed in this behalf by the State Government and under the direct supervision of a person holding a certificate of competency and by a person holding a permit issued or recognised by the State Government.
Provided that in the case of works executed for or on behalf of the Central Government and in the case of installations in mines, oil fields and railways, the Central Government and in other cases the State Government, may, by notification in the Official Gazette, exempt on such conditions as it may impose, any such work described therein either generally or in the case of any specified class of consumers, suppliers, owners or occupiers.
Page No.# 8/9 (2) No electrical installation work which has been carried out in contravention of sub- regulation (1) shall either be energised or connected to the works of any supplier."
8) Therefore, out of the three criteria prescribed in the advertisement, the petitioner does not hold or possess one criteria, i.e. electrical work permit, which is given by the appropriate Government, which would be a designated authority under the State of Assam in this case, i.e. Office of the Senior Electrical Inspector, Assam, who is competent under the Electricity Act, 2003 to issue such certificate. Therefore, the respondents has been able to show that the criteria which was not fulfilled by the petitioner was an essential qualification.
9) The Court is of the considered opinion that the employer is the best person to know its requirements and to give employment to those qualified persons, who meet the eligibility conditions. No doubt that the employer also has right, in a given case, to relax certain conditions, but the petitioner has not been able to demonstrate that when there is a prohibition in the relevant Rules prohibiting that persons who do not possess the certificate of competency or electrical work permit issued by the appropriate Government, why should the respondents relax an essential criteria and to employ the petitioner.
10) The Tradesman Certificate and/or the Equivalency Certificates held by the petitioner are not in dispute and/or questioned at the present moment.
11) It is seen that the employment advertisement makes it clear that "If sufficient number of eligible and suitable Ex-Servicemen candidate is not Page No.# 9/9 available to fill up the posts reserved for them, then the vacant posts may be filled up by other candidates." Therefore, the Court finds no reason for an enquiry as to the legality or otherwise in appointing others in such posts when the terms and conditions of the advertisement or the appointments made to the said post are not under challenge in this case.
12) The citations relied upon by the petitioner are not authority on the point that even if an Ex-Serviceman candidate does not possess an essential qualification, i.e. certificate of competency or electrical work permit issued by the appropriate Government, as in the present case in hand, that the scale of balance would still tilt in favour of such persons and they would still be entitled to appointment. Therefore, the said cases are distinguishable on the facts of the present case and there would be no point in burdening this order with discussions on the same. The essential criteria have been clearly stated in the employment advertisement and as such the Court is unable to accept that some hidden criteria was applied in this case to reject the candidature of the petitioner.
13) Therefore, under the facts of this case, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost.
JUDGE Comparing Assistant