Karnataka High Court
The Director (Admn And Hr) vs Sri.Mohamad Hanisab S/O Kasimsab ... on 22 July, 2019
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATA KA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF JULY, 2019
PRESEN T
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE BELLUNKE A.S.
WRIT APPEAL No.100238 of 2019 [S-PRO]
C/W WRIT APPEAL Nos.100228-230 of 2019
& WRIT APPEAL Nos.100241-243 of 2019
IN WRIT APPEAL No.100238 of 2019:
BETWEEN:
1. THE DIRECTOR (ADMN & HR),
KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED, CAUVERY BHAVAN,
K.G. ROAD, BENGALURU-560 009.
2. THE GENERAL MANAGER
(ADMN & HR), CORPORATE OFFICE
GULABARGA ELECTRICITY SUPPLY CO. LTD.,
STATION ROAD, KALABURGI-585 102.
3. THE SUPERINTENDING ENGINEER (ELE)
O & M CIRCLE, GESCOM, 2ND FLOOR,
BEHIND BUDA OFFICE,
MOTI CIRCLE, BALLARI-583 101.
... APPELLANTS
(BY SRI. B S KAMATE, ADV.)
AND:
SRI.MOHAMAD HANISAB
S/O KASIMSAB SHEKKI,
AGE: 42 YEARS, OCC: METER READER,
GESCOM, R/O: GANDHINAGAR,
KEB QUARTERS NO.28,
:2:
MOKA ROAD, BALLARI-583 103.
... RESPONDENT
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA
HIGH COURT ACT, 1961, PRAYING THIS HON'BLE COURT
TO SET ASIDE THE IMPUGNED ORDER DATED 20.03.2019
PASSED BY THE LEARNED SINGLE JUDGE IN W.P
NO.108391/2017 AND DISMISS THE W.P NO.108391/2017
BY ALLOWING THIS WRIT APPEAL WITH COSTS.
IN WRIT APPEAL Nos.100228-230 of 2019:
BETWEEN:
1. THE KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED,
REP. BY ITS DIRECTOR, (ADMN. AND HRD),
CAUVERY BHAVAN, K.G. ROAD,
BENGALURU-560 009.
2. THE GENERAL MANAGER,
(ADMN. AND HRD) GESCOM
STATION ROAD, KALABURGI-585 102.
3. THE CHIEF ENGINEER (O & M),
CIRCLE OFFICE, GESCOM 2ND FLOOR,
BEHIND BUDA OFFICE,
MOTI CIRCLE, BALLARI-583 103.
4. THE SUPERINTENDING ENGINEER (ELE)
(O & M) CIRCLE OFFICE, GESCOM,
2ND FLOOR,BEHIND BUDA OFFICE,
MOTI CIRCLE, BALLARI-583 103.
... APPELLANTS
(BY SRI.B.S.KAMATE, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPARTMENT OF PWER & ENERGY,
M.S. BUILDING, BENGALURU-560 001.
:3:
2. SRI.MOHAMMED HANIFSAB
AGE: 42 YEARS, OCC: METER READER,
CITY SUB-DIVISION-1, GESCOM,
BALLARI-583 103, TQ & DIST: BALLARI.
3. B. GURUPRASAD S/O B. NARAYAN,
AGE: 35 YEARS,
OCC: MECHANIC GRADE II,
WORKINIG AT LT RATING RURAL SUB-DIVISION,
DOOR NO.18A/58,
OPP: TO KEB FUNCTION HALL
MOKA ROAD, BALLARI-583 103,
TQ & DIST: BALLARI.
4. K. KENCHANMALAPPA
S/O K. HANUMANTHAPPA,
AGE: 39 YEARS, OCC: LINEMAN,
KEB QUARTERS, INDIRA NAGAR,
KUDUTINI POST,
TQ & DIST: BALLARI-583 103.
... RESPONDENTS
(BY SMT.VEENA HEGDE, AGA FOR R1)
THESE WRIT APPEALS ARE FILED U/S.4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING THIS
HON'BLE COURT TO, SET ASIDE THE IMPUGNED ORDER
DATED 20.03.2019 PASSED BY THE LEARNED SINGLE
JUDGE IN W.P NOS.109985-109987 AND DISMISS THE
W.P NO.109985-109987/2017 BY ALLOWING THIS WRIT
APPEAL WITH COST.
IN WRIT APPEAL Nos.100241-243 of 2019:
BETWEEN:
1. THE KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED,
REP. BY ITS DIRECTOR (ADMN, AND HRD),
CORPORATE OFFICE, CAUVERY BHAVAN,
BENGALURU 560 009.
2. THE GENERAL MANAGER (ADMN AND HRD)
CORPORATE OFFICE, GESCOM, STATION
:4:
MAIN ROAD, KALBURGI 585 102,
3. THE SUPERINTENDENT ENGINEER O & M,
(OFFICE & MAINTENANCE) CIRCLE OFFICE,
GESCOM, 2ND FLOOR, BEHIND GUDA OFFICE,
MOTI CIRCLE, BALLARI 583 103.
4. THE CHIEF ENGINEER (O&M),
CIRCLE OFFICE, GESCOM, 2ND FLOOR,
BEHIND BUDA OFFICE, MOTI CIRCLE,
BALLARI 583 103.
... APPELLANTS
(BY SRI. B S KAMATE, ADV.)
AND:
1. THE GOVERNMENT OF KARNATAKA,
REP.BY ITS SECRETARY,
DEPARTMENT OF POWER & ENERGY,
M.S.BUILDING, BENGALURU 560 001.
2. K.KENCHANMALAPPA S/O HANUMANTHAPPA,
AGE: 39 YEARS, OCC:LINEMAN,
KEB QUARTERS, INDIRA NAGAR,
KUDUTINI POST, TQ & DIST:BALLARI 583 103.
3. B.GURUPRASAD S/O B.NARAYAN
AGE: 35 YEARS, OCC:MECHANIC GRADE I,
WORKING AT L T RATING, RURAL SUB DIVISION,
R/O DOOR NO.18A/58
OPP: TO KEB FUNCTION HALL,
MORKA ROAD, BALLARI 583 103.
4. MISS DIVYA S D/O SHEKKANNA
AGE: 32 YEARS, OCC:LINEMAN,
WORKING AT L T RATING RURAL
SUB-DIVISION, R/O DOOR NO.122,
WARD NO.29, EX-SERVICEMEN COLONY,
BELAGAL CROSS, BALLARI 583 103.
5. SHIVAKUMAR C. S/O KOTRAPPA,
AGE: 30 YEARS, OCC:JR. METER READER
(RSD) GESCOM, BALLARI 583 103.
:5:
6. BALLARI NAGARAJ S/O B.BASAVARAJ,
AGE: 39 YEARS, OCC:SERVICE STATION
ATTENDANT, GR.I, C/O KPTCL, 110 KV (MUSS)
TELKALKOTE, BALLARI 583 103.
7. M. IQBAL BASHA S/O M.ALLABAKSHSAB,
AGE: 47 YEARS, OCC:SERVICE METER READER,
C/O SO.3 (RSD0 GESCOM, BALLARI 583 103
8. K. MANJUNATH CHAUDHARY
S/O SATYANARAYANA K,
AGE: 33 YEARS, OCC:SERVICE TECH GR.II,
C/O O/O RT SUB DVN, KPTCL,
BALLARI 583 103.
9. K.L.ASHOK S/O LAXMAN K,
AGE: 33 YEARS, OCC:SERVICE LINEMAN,
C/O SO.I, (RSD), GESCOM,
BALLARI 583 103.
10. ABDUL AZEER S/O ABDUL REHAMAN,
AGE 34 YEARS, OCC:SERVICE LINEMAN,
UNIT-I, SUB DIVISION-1, GESCOM,
BALLARI 583 103.
11. THOTADA BASAVARAJ S/O CHANDRASHEKHAR T,
AGE:37 YEARS, OCC:WORKING AS
STATION MECHANIC II, 220 K.V.R/S.
KPTCL, ALLIPURA, BALLARI 583 103.
... RESPONDENTS
(BY SRI. F.V PATIL FOR SRI. SRINAND A PACHHAPURE,
ADV. FOR C/R.1-R.2, SMT. VEENA HEGDE, AGA FOR R.1)
THESE WRIT APPEALS ARE FILED U/S.4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING THIS
HON'BLE COURT TO, SET ASIDE THE IMPUGNED ORDER
DATED 20.03.2019 PASSED BY THE LEARNED SINGLE
JUDGE IN W.P. NOS.109076-78/2017 AND DISMISS THE
W.P.NO.109076-78/2017, BY ALLOWING THIS WRIT
APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE AND
EQUITY.
:6:
THESE APPEALS HAVING BEEN HEARD AND
RESERVED ON 02.07.2019 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, ARAVIND
KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
Respondents in W.P.No.108391 of 2017 connected with W.P.Nos.109076-109078/2017 and W.P.Nos.109985-109987/2017 have preferred this intra court appeal being aggrieved by order dated 20.03.2019 passed in the said writ petitions.
2. Petitioners, who are in service candidates namely working in the appellant-Corporation, staked their claim for being appointed as Junior Engineers under 10% quota reserved for in service candidates, contending inter alia that they have secured Diploma Certificates from Karnataka State Open University Manasa Gangothri, Mysore (for short "KSOU") and appellants herein have refused to recognize the Diploma Certificates secured by the petitioners erroneously. It was also contended that after obtaining prior permission from the employer they have competed their :7: Diploma Course in the relevant subjects conducted by KSOU, which has recognition from UGC and as such rejection of their candidature on the ground of diploma certificates furnished by them are not from polytechnic approved by the State Board for Technical Education is erroneous.
3. On service of notice, respondents appeared and filed their statement of objections denying the averments made in the petition by contending inter alia that petitioners are the employees of KPTCL deemed to be on deputation to GESCOM and by virtue of tripartite agreement entered into between the management and employees, petitioners are bound by the KPTCL regulations which prescribe that it is only such certificates/courses obtained from the Polytechnics approved by the Board of Technical Education, Government of Karnataka alone will be recognized, therefore petitioners are not entitled to the relief in view of the valid amendment to service rules. :8:
4. The learned Single Judge has held that KPTCL is the successor of erstwhile Karnataka Electricity Board and the employees of KEB under tripartite agreement have become the employees of KPTCL on deputation to GESCOM, which is the holding company of KPTCL and it has adopted the KEB service regulation by resolution dated 28.12.2012 and said regulations as existed on the date of adoption i.e., 28.12.2012 would only hold the field and not the amendments later effected to these regulations and it would not be applicable to the employees of GESCOM. It is further held that Diploma courses done by petitioners was with prior permission of their employers and Diploma Certificates issued by KSOU had the approval of UGC and said course was done by the petitioners long before the impugned notification dated 09.08.2018 and also prior to service regulation was amended and even otherwise GESCOM had not adopted the amendment so made to its service regulations. It is further held that amendment to the Rules would not be :9: applicable to the employees of GESCOM and their rights are governed by pre-amendment regime. It also further held that regulation 4(11) would be inapplicable and even otherwise, it restrains the employer from alteration of terms and conditions of service of the absorbed employees. On these grounds, learned Single Judge allowed the writ petitions and directed the recruitment process to be redone and a writ of mandamus came to be issued by the KPTCL GESCOM to treat the Diploma certificates secured by them from KSOU as valid for staking their claim to the appointment for the post of Junior Engineer under 10% quota reserved for in-service candidates. Hence, this intra Court appeal.
5. We have heard Shri B.S.Kamate, learned counsel appearing for appellants and Shri F.V.Patil, learned counsel appearing for respondents. Perused the records.
: 10 :
6. It is the contention of Shri B.S.Kamate, learned counsel appearing for appellants that learned single judge erred in concluding that amendments brought into the regulations not being applicable to the petitioners on the ground that Board resolution dated 28.12.2012 for the adoption of KEB Rules indicate that the "Rules amended from time to time" is not incorporated in said resolution and it is a misreading of the proceedings of the meeting and the resolution passed by the GESCOM. Therefore, order passed by the learned Single Judge is erroneous. He would also submit that learned judge erred in directing GESCOM to treat Diploma/Certificate secured by the petitioners from KSOU for staking their claim for appointment of Junior Engineer (Elec.) under 10% quota reserved for in-service candidate though such a qualification is not a requisite qualification and committed further error in holding that in respect of direct recruitments for GESCOM, Diploma certificate obtained by KSOU would be recognized on the ground that same is not equivalent : 11 : to the qualification prescribed. He would elaborate his submission in this regard and would contend it is the prerogative of the employer to prescribe the eligibility/qualification for the post to be filled up and in the instant cases, the Joint Director of Department of Technical Education, Government of Karnataka, produced at Annexure-R1 has certified that Diploma course conducted by AICTE, New Delhi, is not equivalent to the Diploma to be obtained from the Board of Technical Education, Department of Technical Education, Government of Karnataka and as such, petitioners were not entitled for appointment to the post of Junior Engineer (Elec.) under 10% in service quota. This amongst other grounds as urged in the appeal memorandum, he has prayed for order of learned Single Judge being set aside and writ petitions being dismissed.
7. Per contra, Sri F.V.Patil, learned counsel appearing for respondent submits that 1st petitioner in W.P.109985-109987/2017 - Mr. Mohammed Hanif Sab : 12 : was appointed by the KPTCL and transferred to GESCOM in the year 2002 and made in-charge as Junior Engineer by GESCOM and Regulation 4 (11) (a) would applicable to him and amended Rules which is less favourable to him cannot be applied. He would also contend that 2nd petitioner-Mr.B.Guruprasad was appointed by GESCOM on 12.10.2007 and similarly 3rd petitioner was appointed by GESCOM on 03.12.2007 i.e., after tripartite agreement. It is his further contention that Diploma certificate issued by KSOU to petitioners is equivalent to one prescribed under notification dated 09.01.2017 and as such same ought to have been accepted, particularly when employer itself had granted permission to the petitioners during March and May, 2012 to take up Diploma course and as such, appellants are now estopped from contending that Diploma certificate issued by KSOU is not equivalent to one prescribed under notification dated 09.01.2017 or same cannot be accepted. On these grounds amongst others as urged in the writ petition, he has supported : 13 : the order passed by the learned single judge. Hence, he has prayed for dismissal of the appeals.
8. A notification dated 09.01.2017 came to be issued for recruitment to the posts of Junior Engineer (Elec.) under 10% of the posts by direct recruitment for in-service candidates. The educational qualification notified was Diploma in Electrical and Electronic Engineering of the Polytechnic of the State of Karnataka. Writ Petitioners applied for the said posts and their applications came to be rejected. Hence, they sought for quashing of the provisional list dated 03.06.2017 (Annexure-E) issued by 4th respondent and sought for a writ of mandamus to 4th respondent to consider their representations.
9. At the outset, it requires to be noticed that petitioner in W.P.No.108391/2017, who is also the 1st petitioner in W.P.Nos.109985-109987/2017, was appointed by KPTCL on 01.03.2000 and transferred to GESCOM in the year 2002 whereas petitioner No.2 in : 14 : W.P.No.109076-109078/2017, who is also the 2nd petitioner in W.P.No.109985-109987/2017 as well as 1st petitioner in W.P.No.109076-109078/2017, who is also 3rd petitioner in W.P.No.109985-109987/2017, were directly recruited by GESCOM on 12.10.2007 and 03.12.2007 respectively.
10. It is not in dispute that KPTCL is the successor of erstwhile Karnataka Electricity Board and by virtue of Section 79 (c) of the Electricity (Supply) Act, 1948, the erstwhile 'the KEB (Recruitment and Promotion) Regulations, 1969', would be applicable insofar as the employees of KPTCL and GESCOM and said Regulations would be applicable to the employees who stood transferred to GESCOM by way of absorption. Regulation 4 (11) would be applicable to such of the employees and Regulation 4 (11) reads:
"4 (11) The transfer of the Specified Personnel and posts as specified in accordance with Part III of Schedules A, B, C and D and the absorption of Specified Personnel pursuant to Rule 4 shall be further : 15 : subject to the following conditions, namely -
(a) the terms and conditions of the services applicable to them shall not in any way be less favourable than or inferior to those applicable to them immediately before such effective date of the Second Transfer nor shall they take away their existing rights and privileges;".
11. Regulation 4 (12) would indicate that Escoms are empowered to make Regulations governing the terms and conditions of service of specified personnel transferred to the Escoms under these Rules and until such time service conditions of KPTCL would mutatis mutandis apply. Regulation 4 (12) reads:
"4 (12) Subject to sub-rules (1) and (11) the Escoms may make regulations governing the terms and conditions of service of Specified Personnel transferred to the Escoms under these rules, and until such time the existing service conditions of KPTCL shall mutatis mutandis apply."
12. Insofar as petitioners Sriyuths Guruprasad and Kenchappa who were appointed by GESCOM on : 16 : 12.10.2017 and 03.12.2017 cannot be heard to contend that amended Rules of KPTCL, which has been made applicable mutatis mutandis, cannot be applied to them. Hence, their contention with regard to amended Rules applied to them was not required to be entertained. In fact, learned single judge at paragraph 6 of the order under challenge has noticed this fact and yet, held that it would not be of much importance and has proceeded to examine the claim of petitioners in totality by arriving at a conclusion that Resolution dated 28.12.2012 adopted by GESCOM in its 46th meeting restricts its applicability of KEB Regulations as amended upto that date only, and therefore, amendments later effected to the Regulations by KPTCL would not be applicable to the employees of GESCOM. This finding recorded by the learned single judge is erroneous for the simple reason that Resolution dated 28.12.2012 placed on record vide memo dated 14.03.2019 would disclose that Board of GESCOM in its meeting held on said date had debated the matter at : 17 : subject No.46/05.2 with regard to preparation of Regulations governing or covering recruitment, promotion, probation, seniority etc., relating to the employees of GESCOM and held that till such time the GESCOM has its own Regulations in place which was under way, it (GESCOM) would continue to be governed by the relevant Regulations of KPTCL with suitable modifications, if required. It was also debated at the said meeting and resolved that it is a continuous process and even future amendments to KPTCL Regulations will have to be treated as deemed adoption with suitable modifications. In fact, the test of adoption has been held by the learned single judge and rightly as being not unknown in service jurisprudence and yet on the ground that said Resolution restricts such adoption upto the date of Resolution only, is held to be a ground to arrive at a conclusion that amended Regulations cannot be made applicable to the petitioners. We are of the considered view that Resolution read as a whole would clearly disclose that GESCOM had finalized and : 18 : has agreed to continue and adopt the Regulations of KPTCL including future amendments by treating it as deemed adoption. Hence, finding recorded by the learned single judge with regard to provisions of Regulation 4 (11) and 4 (12) of Rules, 2002 as applicable to the employees of GESCOM, is an erroneous finding and is liable to be interfered with.
13. The second issue relates to the certificates produced by the petitioners obtained by them from KSOU. It was contended that Diploma certificate produced by them is as prescribed under the employment notification. The notification for employment dated 9.1.2017-Annexure-C discloses the educational qualification prescribed for the post of Junior Engineers was candidates should have passed Diploma in Electrical Engineering of a polytechnic of the State of Karnataka or Equivalent qualification. Whereas as per amended Rules, the educational qualification prescribed was candidates should have passed Diploma in Electrical Engineering/Electrical and : 19 : Electronics of a Polytechnic of the State of Karnataka. For purpose of immediate reference, the qualification prescribed pre-amendment and post-amendment for the posts of Junior Engineer(Elec.) under 10% of the posts by direct recruitment of in-service employees is tabulated herein below:
Sl.
Category As Existing As Amended
No Cadre
of Posts
.
A. ii) 10% of i) Should A. ii) 10% of i) Should Have
the posts by have passed the posts by Passed
direct Diploma indirect Diploma In
recruitment Electrical recruitment Electrical
of in-service Engineering of in-service Engineering/El
employees of aemployees ectrical &
on the basis Polytechnic of on the basis Electronics Of
of interview, the State of of interview, A Polytechnic selection by Karnataka or selection by Of The State Of a Equivalent a Committee Karnataka.
Junior Committee qualification constituted
constituted by the ii) Should Have
Engineer
by the ii) Should Board. Put In A
12 (Elec.)/St Circle
Board have put in a Minimum
ore Wise
minimum Service Of 4
Keeper
service of 4 Years Of
Gr.II
years of Service In The
service in the Lower Post.
lower post.
iii) Sho0uld Be
iii) Should be On Probation
on probation For One Year.
for one year.
iv) The
iv) The Following
following Qualifications
qualifications Are Required
: 20 :
are required To Complete
to complete The
the Probationary
probationary Period
period Satisfactorily.
satisfactorily.
a) Should
a) Should Undergo
undergo Training
training Conducted By
conducted by The Board
the Board And Shall
and shall Pass The Test
pass the test At The End Of
at the end of Training.
the training.
b) Should
b) Should Have Pass
have passed Kannada
or pass Language
Kannada Test Or
Language Obtain
Test or obtain Exemption
exemption From Passing
from passing Kannada
Kannada Language
Language Test As Per
Test as per Regulations.
Regulations.
c) Should
c) Should Maintain
maintain Good
Good Conduct,
Conduct, Punctuality
Punctuality In Attendance
in attendance And Aptitude
and aptitude For Learning
for learning The Jobs.
the jobs. These Should
These should Be Assessed
be assessed And Reported
and reported By The
by the Official
Official Superiors
Superiors through
through reports.
reports.
: 21 :
Since, petitioners contended that Diploma Certificates issued by KSOU is an equivalent qualification to Diploma in Electrical Engineering of a polytechnic as defined under the expression "Diploma" and "Certificate" as defined under Regulation 2(f) as existing and post amendment are required to be noticed. They read as under:
As Existing As Amended
(f) 'Diploma' or 'Certificate' (f) 'Diploma' or 'Certificate' means a Diploma or means a Diploma or Certificate granted by a Certificate granted by the University established by Board of Technical Law in India or by an Examinations, Department authorized by the of Technical Education, Government to grant such Government of Karnataka.
Diploma or Certificate
14. Likewise, it would also be necessary to extract the definition of the expression 'Equivalent Qualification' as defined under Regulations 2(i) and it reads:
2(i) 'Equivalent Qualification' means a qualification notified by the Government or the Board to be equivalent to a qualification prescribed in respect of any post in the : 22 : Regulations regulating recruitment to any services in the Board.
15. As to whether the Courts have jurisdiction to examine the equivalency of the qualification prescribed by the appointing authority for appointment, is an issue which is no more res-integra. Hon'ble Apex Court in the matter of The Maharashtra Public Service Commission through its Secretary V/s Sandeep Shriram Warade and others in CA No.4597/2019 and connected matters disposed of on 03-05-2019 has held question of equivalence will fall outside the domain of judicial review. It has been further held:
"10. xxx xxx xxx Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the grab of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions : 23 : of the advertisement contrary to the plain language of the same."
16. In the matter of SANJAY KUMAR MANJUL vs. CHAIRMAN, U.P.S.C. AND OTHERS reported in AIR 2007 SC 254 a question arose as to whether experience in "Epigraphy" may be considered to be "field experience in Archeology", for appointment to the post of "Superintending Archeologist" in Archeological Survey of India. It came to be held by Hon'ble Apex Court:
"24. The statutory authority is entitled to frame statutory rules laying down terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned who can take ultimate decision thereof.
25. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same.
26. It is well settled that the superior courts while exercising their jurisdiction under Article 226 or 32 of the Constitution of India : 24 : ordinarily do not direct an employer to prescribe a qualification for holding a particular post."
(Emphasis supplied by me)
17. In the instant case, even under the pre- amended rules the minimum qualification prescribed by the appointing authority for appointment to the post of junior engineer, was 'Diploma in Electrical Engineering of a polytechnic of the State of Karnataka or equivalent qualification'. As to whether the qualification claimed or Diploma Certificate furnished by the petitioners contending it is equivalent, is an issue which will have to be determined by the appointing authority itself and thus, definition of expression 'Diploma' or 'Certificate' and 'Equivalent Qualification' will have to be read conjunctively and not disjunctively. When so read, in the background of facts obtained in the instant case, the irresistible conclusion which will have to be drawn is that Diploma Certificates produced or relied upon by the petitioners, which have been issued by KSOU would not be an equivalent qualification as it has not been : 25 : notified by the Government or the Board/GESCOM, declaring Diploma course conducted by KSOU as equivalent to the course conducted by a polytechnic college in State of Karnataka. This view would also get fortified by the fact that Joint Director of Technical Education Department, by communication dated 8.9.2014 (Annexure-R1) has informed 3rd appellant, that Diploma courses conducted by KSOU is not certified by the All India Council for Technical Education, and it is not equivalent to the Diploma course conducted by it. Thus, even in the pre- amendment era on the issue of equivalency the petitioners would not be entitled to the relief sought for. In the post-amendment era, the qualification prescribed is 'Diploma in Electrical Engineering/Electrical and Electronics of a Polytechnic of the State of Karnataka, which qualification undisputedly petitioners did not possess and as such they would not be entitled to contend that they are eligible for being appointed to the post of Junior Engineers by direct recruitment under : 26 : in-service employees quota. In fact, the expression "or equivalent qualification" has been omitted under the amended provision.
18. In the light of aforestated discussion, we are of the considered view that learned single judge was not justified in quashing the order dated 3.6.2017- provisional list issued by respondent No.4 and issuance of consequential writ of mandamus to treat the Diploma/Certificates secured by the petitioners from KSOU as valid for staking their claim for appointment to the post of Junior Engineer under 10% quota reserved for the in-service candidates.
Hence, we proceed to pass the following:
ORDER
i) Writ Appeal No.100238 of 2019 [S-
PRO] connected with Writ Appeal
Nos.100228-230 of 2019 & Writ
Appeal Nos.100241-243 of 2019 are hereby allowed and order dated : 27 : 20.03.2019 passed in W.P.No.108391 of 2017 connected with W.P.Nos.109076-9078/2017 and W.P.Nos.109985-9987/2017 is hereby set-aside and writ petitions are dismissed.
ii) Costs made easy.
All the pending applications stand consigned to file.
(Sd/-) JUDGE (Sd/-) JUDGE Vnp*/paragraphs 1 to 5, Jm/-paragraphs 6 to 12, JTR/-paragraphs 13 to end.