Rajasthan High Court - Jodhpur
Sbcwp No.11047/10 - Hanuman Prasad Vyas ... vs . State & Ors. on 30 October, 2014
Author: Vineet Kothari
Bench: Vineet Kothari
SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014
1/28
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
Hanuman Prasad Vyas & anr. vs. State & Ors.
S.B.CIVIL WRIT PETITION NO. 11047/2010
Manoj Avasthi & Anr. vs. State & Ors.
S.B.CIVIL WRIT PETITION NO.6508/2012
Randhir Vyas vs. State & Ors.
S.B.CIVIL WRIT PETITION NO.1266/2013
Anil Purohit & Anr. vs. State & Ors.
S.B.CIVIL WRIT PETITION NO.1805/2014
Ajit Singh Rathore & Ors. vs. State & ors.
S.B.CIVIL WRIT PETITION NO.4107/2014
DATE OF JUDGMENT : 30th October, 2014
PRESENT
HON'BLE DR.JUSTICE VINEET KOTHARI
Mr.J.P.Joshi, Sr. Advocate with ]
Mr. Khet Singh ] for the petitioners.
Mr. Mukesh Rajpurohit, ]
Mr. Rajesh Panwar, Addl. Advocate General with
Mr.Sunil Joshi, for the State.
Mr. R.S.Saluja, for the respondent JDA, Jodhpur.
REPORTABLE
BY THE COURT:
1. These writ petitions involving common issues are being disposed of by this common order and the facts are illustratively taken from SBCWP No.11047/2010 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 2/28
2. The controversy arises out of the advertisement dated 10/2/2010 (Annex.2) issued for 167 posts of Junior Engineers issued by the Urban Development & Housing Department of Govt. of Rajasthan and the eligibility criteria, inter alia, provided in the said advertisement stipulated that Engineering Graduates with minimum 60% marks in their qualifying Degree course or A.M.I.E. Degree holders with minimum 55% of marks could only apply for the said posts. The present two petitioners in Civil Writ Petition No.11047/2010 - Hanuman Prasad Vyas & Mr Jai Narayan Mutha are Engineering Graduations having below 60% of marks & others, admittedly, are not even Engineering Graduates nor the A.M.I.E. degree holders but are Diploma Holders in Civil Engineering and the case set up in the present set of writ petitions is that the respondent State made excessive appointments of Junior Engineers in the said selection process in pursuance of advertisement dated 10/2/2010 (Annex.2), much in excess of 167 posts notified in the said advertisement and even while doing so, the respondent State deliberately did not invite the applications and consider for appointment the diploma holders like the present petitioners, who were deprived of such opportunity to apply for the said post in view of the qualifications prescribed for the said post of Junior Engineer i.e. Engineering Graduates with minimum 60% marks or A.M.I.E. Degree with 55% marks, while leaving out the Diploma Holders altogether, whereas, according to the petitioners, under the relevant statutory Rules of 1973 applicable for the respondent Department and Public Authorities like JDA, the Rajasthan Subordinate SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 3/28 Engineering (Building & Roads Branch) Service Rules, 1973 (for short `Rules of 1973'), the respondents could not exclude the Diploma Holders & the Engineering Graduates below 60% of marks from the said selection process.
3. The prayers made in the aforesaid writ petition filed by Hanuman Prasad Vyas & Anr. are quoted below for ready reference:-
"(i) By an appropriate writ, direction or order, the advertisement dated 10.2.2010 (Annex.2) for recruitment to the post of Junior Engineers may be declared illegal and contrary to law and may be quashed and set aside.
(ii) By an appropriate writ, direction or order, the list of candidates held eligible for interview as issued by Jaipur Development Authority (Annex.2) may kindly be quashed and set aside and the respondents may be restrained from holding interview for the post of Junior Engineers as per the list declared by them.
(iii) By an appropriate writ, direction or order, the respondents may be directed to hold recruitment to the post of Junior Engineers de novo in accordance with Rules applicable for the post of Junior Engineers in the services of the State and in any event, the petitioners may be declared to be eligible for the post of Junior Engineer.
(iv) Cost of the writ petition may kindly be awarded in favour of the petitioners.
(v) Any other appropriate direction or order which this Hon'ble Court deems fit in the facts and circumstances SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 4/28 of the case may kindly be granted."
4. The stand taken by the respondents with regard to the aforesaid grounds of assailing the said selection process by the petitioners as delineated in the written submissions filed through the Addl. Advocate General Mr. Rajesh Panwar on 5/5/2014 is that the respondent Department issued the aforesaid advertisement dated 10/2/2010 for 167 posts of Junior Engineers for Jaipur Development Authority, Jodhpur Development Authority and different UITs etc. & in pursuance of the said advertisement dated 10/2/2010, 2493 applications were received for interview and after scrutiny the applications, 1134 candidates were called for interview. At the time of interview, 244 candidates remained absent and 107 candidates could not qualify and 12 posts were kept vacant in compliance of the stay orders of this Court and after interview, 782 candidates were found qualified as per the merit list produced as Annex.R/1/5. From amongst the qualified candidates, the respondents declared the result of 155 candidates against the 167 posts advertised and 12 posts were kept vacant in compliance of the stay order passed in different cases. However, on administrative exigency for appointment of more Junior Engineers for different projects of the State and Public Bodies, the respondents proceeded to appoint 455 candidates including the aforesaid 155 candidates & all being from the said select list Annex.R/1/5 and the appointment orders were issued on 2.11.2010, 17.1.2011, 6.4.2011 and 9.8.2011 but out of 455 appointments offered only 326 candidates joined and out of them 24 SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 5/28 candidates left the posts and finally 302 candidates were working in pursuance of the aforesaid selection process. For the excess appointments made by the respondent State, the State Government sought legal opinion from the Advocate General of the State, who vide communication dated 3/6/2013 opined that the matter may be examined from the point of view of necessity of the posts in the UITs and Jaipur Development Authority and if on merits, there is a requirement and justification for additional posts then such additional posts may be created with retrospective effect, after obtaining the concurrence from the competent authority and the appointments already made may be adjusted towards the newly created posts in UITs and Jaipur Development Authority etc.
5. Accordingly, the matter was placed before the Cabinet of the State Govt. vide memorandum dated 4/6/2013 and the Cabinet approved the sanction of excess posts of Junior Engineers, which were already filled up by the Urban Development & Housing Department of the State Government vide Cabinet Decision no. 155/2013 dated 10/7/2013, which decision is placed on record as Annex.R/1/8 and same is also reproduced hereunder for ready reference:-
"र जस न सरक र मत मण ल क आज 155/2013 द न क 09 जल ई, 2013 क सरक लशन क म ध म स नगर व"क स आ" सन ए" स" त श सन व"भ ग द र पस(( ज पन कम क: प.
SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 6/28 1(10)नव""/11/05/प र, द न क 04 जल ई, 2013 म- अकक( "र, 2010 म-
च नन( कक ग अभ र , 5 म- स कननष अभभ न( क स"9क:( 167 प 5
स अर;क प 5 पर नन क कक ग कननष अभभ न( ओ क स" ओ क
नन भमन(करण ए" " न?( प 5 क भ(लक9 पभ " स स"9क:न( द जन
सब;9 पस( " क अनम न कक ग ।
Sd/-
(स9. क. मCथ )
मख सरच"
6. It is further stated in the reply of the respondent State that the respondents have acted bonafidely looking to the scarcity of technical staff in the ongoing projects & various other important projects in various State Public Undertakings and Departments like DMRC for Jaipur Metro Project, AVL for affordable house project, CTP Office for Master Plan, RUIDP for ADB Funding Projects, RUIFDCO JLNURM Projects, UITs, Jaipur Development Authority and Jodhpur Development Authority. Learned counsel for the respondents, Mr. Rajesh Panwar, AAG, therefore, submitted that there was a dire need for filling up the posts of Junior Engineers to meet out the necessity and in view of emergent situation to complete the various projects and requisitions so received from other Departments, therefore, the action of the respondents was bonafide and in accordance with proviso to Rule 16 of 1973 Rules and in the larger interest of public. The details of posts for the different projects as given out in the written submissions filed by the respondents are as under:-
SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014
7/28
DMRC 30 posts
Awas Vikas Limited 15 posts
RUIDP 23 posts
RUFDICO 32 posts
Jaipur Development Authority 48 posts
UIT, Udaipur 04 posts
UIT, Bhiwadi 01 post
UIT, Ajmer 05 posts
UIT, Bhilwara 04 posts
7. Learned Addl. Advocate General, Mr. Rajesh Panwar also submitted that the aforesaid organizations had not earlier demanded for Junior Engineers at the time of issuance of Notification dated 10/2/2010 and the additional recruitments were made by the respondent State is not a burden on the public exchequer, because all the aforesaid additional recruitments were for the local bodies and after completion of the projects the Junior Engineers so appointed will continue on the rolls of the Jaipur Development Authority and other UITs of the State Government against the sanctioned posts as per the aforesaid Cabinet Decision.
8. Mr. J.P.Joshi, Sr.Advocate assisted by Mr. Siddharth Joshi and Mr. Mukesh Rajpurohit, learned counsels appearing for the petitioners submitted that the respondents were not justified in restricting the eligibility for the post of Junior Engineers under the Advertisement dated 10/2/2010 only for the Engineering Graduates with minimum 60% marks and AMIE Degree with 55% marks respectively, ignoring the eligibility of the present petitioners, who are either diploma holders in Civil Engineering or Graduates below 60% of marks, whereas, the statutory Rules of 1973 applicable in the SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 8/28 present case, envisages equal treatment and opportunity to be given to such Degree Holders and Diploma Holders both. They also urged that the Diploma Holders & such Degree Holders with less than 60% marks are also no less qualified than the Degree Holders as given in the Advertisement and, therefore, not providing them the equal opportunity to participate in the said selection process is violative of Article 14 and 16 of the Constitution of India and to that extent the conditions imposed in the Advertisement dated 10/2/2010 deserve to be quashed. They also urged that there was no reason for the respondent State to appoint excess number of Junior Engineers in pursuance of the said Advertisement notifying only 167 posts and, thereafter, to seek an ex post facto approval of the Cabinet and regularising such excess appointments of Junior Engineers against such posts while ignoring the right of the present petitioners, who are Diploma Holders or Degree Holders with lesser percentage of marks. They also brought to the notice of the Court that in similar writ petitions filed by certain other Diploma Holders, they were even given appointments by the respondent Urban Development Department of the State Government vide appointment orders dated 23/1/2013 & dated 12/9/2013 and 15 such Diploma Holders were so appointed, whose details are given below and, thereafter, their writ petitions Nos. 11450/2010 - Vishnu Dutt Vyas & Ors. vs. State of Rajasthan & Ors. (decided on 17/12/2013), SBCWP No.9905/2010
- Ravi Dutt Kalla vs. State &Ors. (decided on 17/12/2013) & SBCWP No. 2245/2010 - Nagendra Rajpurohit & Ors. vs. State & Ors. (decided on 17/12/2013) have been rendered infructuous and SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 9/28 disposed of as such.
9. Mr.Joshi also agrued that providing of minimum percentage of 60% for Engineering Graduates was beyond the scope of Rules of 1973 & for shortlisting of the number of candidates, the advertisement already provided for holding of a written test, if a very large number of applications were received. He also relied upon the following judgments to support his contentions.
(i) Dr.Krushna Chandra Sahu & Ors. vs. State of Orissa & Ors. - (1995) 6 SCC 1;
(ii) Arup Das & Ors. vs. State of Assam & ors. - (2012) 5 SCC 559;
(iii) Upen Chandra Gogoi vs. State of Assam & Ors. - (1998) 3 SCC 381.
10. Mr. Mukesh Rajpurohit also drew the attention of the Court towards the said appointment orders dated 23/1/2013 & 12/9/2013 and order passed in writ petition no. 11450/10 - Vishnu Dutt Vyas & Ors. vs. State of Rajasthan & Ors disposing of the writ petitions as infructuous.
11. On the other hand, Mr. Rajesh Panwar, learned Addl.Advocate General vehemently opposed these writ petitions and in view of the stand of the respondent State explained above as supported by the additional affidavit dated 13/10/2014, he urged that the respondent State was perfectly within its rights to invite applications from the SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 10/28 Engineering Graduates with the minimum 60% marks and AMIE Degree Holders with minimum 55% marks for the said posts of Junior Engineers. He also submitted that relevant rules of 1973 clearly permits additional appointments to the extent of 50% of the notified posts in view of the post advertisement requirements arising for such appointments under proviso to Rule 16 of the Rules of 1973 and in view of requisitions received from other departments and projects of the State Government as given above, such excess appointments made out of the same merit list prepared for the said selection process, which is placed at Annex.R/1/5 of 782 candidates, and the excess posts have been sanctioned by the Cabinet vide its decision No.155/2013 dated 10/7/2013 (Annex.R/1/8) as reproduced above and, therefore, the present petitioners, who are admittedly not qualified to apply cannot make any grievance against the said selection process and the writ petitions deserve to be dismissed.
12. Mr.Rajesh Panwar, Learned Addl. Advocate General also submitted that the appointments offered to the Diploma Holders under the order dated 23/1/2013 & 12/9/2013 were clearly subject to the decision of these writ petitions including the contempt petitions filed by the petitioners in view of the interim directions given by the coordinate bench of this Court and in the orders dated 23/1/2013 & 12/9/2013 it was clearly mentioned that these appointments given to the Diploma Holders will remain subject to the final decision of these writ petition and it will not be a precedent for other cases. He relied upon the following extract of the appointment order dated 23/1/2013 SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 11/28 & 12/9/2013, which is quoted below for ready reference:-
Order dt: 23/1/2013 "र जस न सरक र नगर व"क स व"भ ग कम क प. 1(23) नव"व"/II/2011 ज पर द न क 23.01.2013 आ श ननमन कक( 9 रचक क( , ड पल म ; र अभ र , 5 क र जस न अभभ त क स" (स" भ"न " प श ख ) नन म, 1954 ए" र जस न अभभ त क अ;9नस स" (भ"न " प श ख ) नन म 1973, (उक नन म5 क न स स" क अभभ ( ओ पर इस व"भ ग क आज सख प.1(1) नव"आ/2/81 द न क 28.2.97 द र पभ "9 कक ग हC) क नन म 25 क अनसरण म- कननष अभभ न( (भसव"ल) क प पर नन डक प म(: "र, क भलए परर"9क अ"र; (Probation Trainee Period) क भलए 10,000/- रप म भसक नन ( प ररशभमक (Fixed Remuneration) पर नन डक प न क ज (9 हC ।
उक रचक कत ,ओ द र म नन9 उचच न ल क आ श क अनसरण म- पस(( क गई अण ररककग क अनस र इनक "ररष( कननष अभभ न( क प पर क ग , हण करन क न(र स म न9 ज "ग9 ( परर"9क पभशकण अ"र; क स( रजनक रप स पण, करन क उपर न( ह इनह- कननष अभभ ( क "(न शखल : प9ब9-2 9300-34800, ग प न.
3200 म- अन भत5 सदह( "(न ह ग :-
क. स. न म अभभ न( वप( क न म जनम न(र
1 श9 नगनR र जपर दह( श9 प"9ण कम र र जपर दह( 22.06.1975
2 श9 जज(नR म" ड श9 ह र ल ल म" ड 16.09.1975
3 श9 व"श ल र जपर दह( श9 स9( र म र जपर दह( 02/08/75
4 श9 सज बस श9 अजन
, लल बस 19.01.1976
5 श9 र जश व स श9 महश चनR व स 17.03.1975
6 श9 रव" त कलल श9 श म पक श कलल . 02.07.1973
7 श9 व"षण त व स श9 रपकरण व स . 03.04.1974
8 श9 अरण कम र व स श9 अमर त व स 25.03.1976
9 श9 मकश पर दह( श9 पषपर ज पर दह( . 02/04/1976
ह नन डक Y म नन9 उचच न ल प9ठ ज ;पर म- र
रचक सख एस ब9 भसव"ल ररर प9दरशन सख 2245/2010,
SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 12/28 9905/2010 ए" 11450/2010 क अजन(म आ श5 ए" म नन9 न ल द र एस ब9 भसव"ल अ"म नन रचक सख 43/2012, 44/2012 ए"
15/2012 म- प रर( आ श द न क 04.07.2012, 08.01.2013, 09.01.2013 " 17.01.2013 क व"रद क ज न " ल अप9ल क ननण, क अध ;9न ह ग9।
अन नन डक Y अन ककस9 पकरण क भलए दष न( (Precedent) नह ह ग9।"
Order dt: 12/9/2013 "र जस न सरक र नगर व"क स व"भ ग कम क प. 12(140) नव"व"/II/2010 ज पर द न क 12.09.2013 आ श ननमन कक( 6 रचक क( , ड पल म ; र अभ र , 5 क र जस न अभभ त क स" (भ"न " प श ख ) नन म, 1954 ए" र जस न अभभ त क अ;9नस स" (भ"न " प श ख ) नन म, 1973, (उक नन म5 क न स स" क अभभ न( ओ पर इस व"भ ग क आज सख प.1(1) नव"आ/2/81 द न क 28-2-1997 द र पभ "9 कक ग हC) क नन म 25 क अनसरण म- कननष अभभ न( (भसव"ल) क प पर नन डक प म(: "र, क भलए परर"9क पभशकण अ"र; (Probation Trainee Period) क भलए 10,000/- रप म भसक नन ( प ररशभमक (Fixed Remuneration) पर नन डक प न क ज (9 हC ।
उक रचक कत ,ओ क "ररष( कननष अभभ न( क प पर
क ग
, हण करन क न(र स म न9 ज "ग9 ( पर "9क पभशकण अ"र;
क स( रजनक रप स पण, करन क उपर न( ह इनह- कननष अभभ न( क "(न शखल : प9ब9-2 9300-34800, ग -प न. 2 3200 म- अन भत5 सदह( "(न ह ग :-
क. स. न म अभभ न( वप( क न म जनम न(र नन डक पर प स पन
स न
1 श9 पक कम र ग9 श9 ल ल र म ग9 06/04/81 नगर स; र न स,स9कर
SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014
13/28
क. स. न म अभभ न( वप( क न म जनम न(र नन डक पर प स पन
स न
श9 आक श ग ल श9 र शन ल ल ग ल 18/05/83 नगर स; र न ,
2 रचत^ गढ
3 श9 गगन कम र गग, श9 श मल ल गग, 21/05/84 नगर स; र न स,ब मर
श9 द नश कम र "म , श9 ^ल(र म "म , 17/05/81 नगर स; र न स, स" ई
4 म ; पर
5 श9 अम9चन श9 च( र म 01/06/78 नगर स; र न स, प ल
श9 हररम हन पज पन( श9 र मफल पज पन( नगर स; र न स,
6 10/06/84 रचत^ गढ
ह नन डक Y म नन9 उचच न ल प9ठ ज ;पर म- र
रचक सख एस.ब9.भसव"ल ररर वपर शन सख 2245/2010,
9905/2010 ए" 11450/2010 क अजन(म आ श5 ए" म नन9 न ल
दर एस.ब9. भसव"ल अ"म नन रचक सख 43/2012, 44/2012 ए"
15/2012 म- प रर( आ श द न क 04-07-2012, 08-01-2013, 09-01-2013 " 17-01-2013 क व"रद क ज न " ल अप9ल क ननण, क अध ;9न ए"
म नन9 उचच न ल प9ठ ज पर म- र रचक सख
एस.ब9.भसव"ल ररर वपर शन सख 6023/2010 पक कम र ए" 5 अन
बन म र ज सरक र ए" अन म- प रर( अजन(म आ श5 क अध ;9न
ह5ग9।
ह नन डक b अन ककस9 पकरण क भलए दष न( (Precedent) नह
ह ग9।"
13. Mr. J.P.Joshi, Sr. Advocate also submitted that in pursuance of the interim order of this Court, the petitioners Hanuman Prasad Vyas and Jai Narayan Mutha were also called for interview for the said selection process of Junior Engineers and in the interview held on 22/2/2011 of certain Diploma Holders & the present two petitioners, who secured 64.83 and 58.26 marks in interview respectively, whereas, persons with lower marks obtained in the interview have already been appointed as Junior Engineers and, therefore, SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 14/28 petitioners Hanuman Prasad Vyas and Jai Narayan Mutha also deserve to be given such appointment in the same manner as other Diploma Holders have been so offered appointment vide order dated 23/1/2013 & 12/9/2013.
14. Having heard the learned counsels at length and upon perusal of the entire relevant record, this Court is of the considered opinion that the challenge laid by the petitioners to the selection process initiated under the Advertisement dated 10/2/2010 must fail and the writ petitions deserve dismissal. The reasons are as under.
15. The fact that the aforesaid statutory rules of 1973 would apply to the present selection process is not in dispute. The earlier stand taken by respondents in its preliminary reply about the exclusive applicability of 1984 Regulations framed for Jaipur Development Authority alone stood withdrawn by the respondents during the course of arguments & vide Addl. Affidavit dated 13/10/2014. A look at these statutory provisions of 1973 Rules is only opportune. The procedure for direct recruitment is provided in Part IV Rule 16 to Rule 22 of the said Rules of 1973. Rule 16, which would answer the challenge laid on the ground of excessive appointments made against 167 posts notified, is quoted below for ready reference:-
"16. Inviting of applications.- Applications for direct recruitment to posts in the service shall be invited by the Commission or the Appointing Authority within whose purview the post lies, by advertising the vacancies to be filled in the official Gazette or in such SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 15/28 other manner, as may be deemed fit;
Provided that while selecting candidates for the vacancies so advertised, the Commission or the Appointing Authority may if intimation of additional requirement not exceeding 50% of the advertised vacancies is received by them before selection, also select suitable persons to meet such additional requirement."
16. The Schedule appended with the 1973 Rules providing for Group II services in which the direct recruitment of Junior Engineers is to be made is also quoted below with relevant column heading:-
SCHEDULE GROUP II S.No. Name of Post Method of Qualification & Post from Qualification recruitment with Experience for direct which and percentage recruitment promotion experience for Direct; is to be promotion Promotion made 1(a) Junior Engineer 100% by direct (a) Degree in Civil recruitment Engineering from a (Degree Holder) University established (Civil) by law in India or qualification declared equivalent by Government
(b) Junior Engineer (b) Diploma in Civil (Diploma Holder) 100% by direct Engineering from a recruitment recognized Institution (Civil) or Diploma in Civil Engineering from a recognized Institution or Diploma in Civil Engineering recognized by the Institution of Engineers for the purpose of exemption from studentship examination.
SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 16/28
17. The aforesaid Rule, thus, clearly envisages creation of separate posts of Junior Engineers; (i) Junior Engineer (Degree Holder) (Civil) and (ii) Junior Engineers (Diploma Holder) (Civil) under Clause 1(a) and 1(b) Group II of the Schedule and both the posts are to be filled up by direct recruitment and the eligibility criteria is also provided separately in column (4); (i) Degree in Civil Engineering for Junior Engineers (Degree Holder) and (ii) Diploma in Civil Engineering for the post of Junior Engineers (Diploma Holder). Since the two posts are separate posts as envisaged in the 1973 Rules and 100% direct recruitment is to be made through different streams altogether, there is no question of mixing up the Diploma Holders with Degree Holders in the present selection process. The advertisement (Annex.2) dated 10/2/2010 clearly specifies the post of Junior Engineer (Civil), however, it does not specify whether the said post is of Junior Engineer (Degree Holder) or Junior Engineer (Diploma Holder) but the eligibility criteria prescribed in column (2) of the said advertisement clearly stipulates that the eligible candidates should be Engineering Graduates within minimum 60% marks or AMIE Degree Holders with minimum 55% marks. There is no mention of Junior Engineer (Diploma Holder) in the said advertisement at all. Now there is a definite difference between the two qualifications and the Engineering Degree Holders definitely have an edge and better qualification over the Diploma Holders. If the respondent State requires only better candidates with better qualification of Engineering Graduates, the lesser qualified Diploma Holders cannot raise a grudge that in the same selection process SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 17/28 made for Degree Holders, they should also be allowed an opportunity to compete.
18. The requirement of candidates possessing minimum 60% marks even in the Degree course, however, shows that the respondent State Government has desired to employ only the best available talent even from the lot of Engineering Graduates and they should possess a minimum marks in their degree courses. Since the opening was not at all available for the Diploma Holders and the posts notified as vacant were also not for the Junior Engineer (Diploma Holder) (Civil), there is no reason to include the Diploma Holders in the said selection process as claimed by the present petitioners. Further, the appointments offered to the Diploma holders subject to the final decision of the writ petitions, under the interim orders of this Court & pendency of contempt petitions vide appointment orders dated 23/1/2013 and 12/9/2013 also cannot confer any right of their continued employment, as their appointments was clearly subject to the decision on merits of these writ petitions and their individual writ petitions were disposed of as having become infructuous on the statement made by learned counsel for the petitioners only in view of such conditional appointments given to them and the same cannot confer any vested right upon them. Such writ petitions had not actually become infructuous with their provisional appointments but was contingent upon & subject to the final decision of the writ petitions on merits, which are now being decided by this judgment.
SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 18/28
19. In the face of increasing competition amongst the Degree holders themselves as the data produced by the State would show that even the list of eligible Degree holders with minimum 60% marks has much exceeded the number of posts advertised and as many as 2493 candidates had applied for the said 167 posts and 1134 candidates were called for interview and ultimately 782 candidates were found qualified as per the merit list prepared by the respondents vide Annex.R/1/5 produced on record. Out of the said selected candidates, the appointments were required to be made even beyond the originally notified 167 posts to the extent of 326 candidates as stated by the respondent State in their reply because of the additional requirements made for the said post of Junior Engineers by the different Departments and for the completion of the ongoing projects of Public Bodies as indicated above. The proviso to Rule 16 of the Rules of 1973 clearly permits such additional appointments out of the selection process already held to the extent of 50% of the advertised vacancies, if additional requirement is made before the selection process is completed. The excess appointments made by the State Government has also been approved by the Cabinet Decision No. 155/2013 dated 10/7/2013 vide Annex.R/1/8, as quoted above, which is not under challenge. Thus, this Court finds no violation of the statutory rules of 1973 and the constitutional provisions enshrined under Article 14 and 16 and the Diploma holders as well as Degree holders with lesser percentage of marks cannot seek any parity or opportunity to compete with the Degree holders in the selection process held under the advertisement dated SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 19/28 10/2/2010 (Annex.2).
20. Regarding the challenge laid with regard to prescribing 60% of marks in the Degree qualification, learned counsel for the petitioners urged that the statutory rules do not envisages any such condition, this Court is of the considered opinion that such a filter or screening requirement of minimum percentage of marks in the qualifying Degree course can be put by the respondent State and the best available talent can be considered for appointment on the said posts. The contention that written test was prescribed for in the Advertisement for screening or short listing in case large number of applications were received, does not mean that the requirement of minimum cut off percentage cannot be provided for in the same advertisement. Both conditions would serve the same purpose and, therefore, have to be read in conjunction with each other & not in derogation or conflict with each other. This Court cannot find any fault, if such a condition is imposed and on the contrary if such a condition would not have been there then many more applications would have been received, which would result in a more expanded process of selection and since the present selection process was held only on the basis of interview & marks obtained in Degree Course, there would be a chance of lesser meritorious person, who could perform better in the interview to have been selected, leaving out the more meritorious candidate, who could have performed only slightly lesser in the interview, if such procedure was not adopted by the respondents. Therefore, prescribing of the minimum percentage SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 20/28 of marks in the qualifying course or Degree cannot be said to be unjust or unreasonable. Therefore, this contention of the learned counsel for the petitioners also is found to be devoid of merit and is liable to be rejected and same is hereby rejected.
21. The last contention faintly argued by the learned counsels for the petitioners that the selection process ought to have been made only by the RPSC and not by the Urban Development and Housing Department itself and, therefore, the selection process deserves to be declared bad, ignores the clear terminology of Rule 16 quoted above, which empowers both the appointing authority, namely the concerned department or the Commission (RPSC) to hold such selection process. Thus, the right of the appointing authority or the concerned department itself is not excluded by the jurisdiction of RPSC to hold such selection process even after amendment of the Rules in 2005 w.e.f. 23/7/2005 by which in the Schedule, the amended words are; "100% by direct recruitment through the RPSC", as pointed out by the learned counsel for the petitioners. Thus, the selection process is not rendered as void ab initio or held without jurisdiction and the RPSC could have undertaken this exercise as the delegate of the concerned department or the State Government but it does not have the exclusive jurisdiction to hold such selection process, since Rule 16 now has the words; "as the case may be" in place of the words "within whose purview the post lies", which does not demarcate the jurisdiction in water tight compartments. Therefore, this contention is also found to be without SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 21/28 any merit and is hereby rejected.
22. Now the brief discussion about the case laws before concluding the judgment is also made here under.
(i) In Dr.Krushna Chandra Sahu & Ors. vs. State of Orissa & Ors. - (1995) 6 SCC 1 relied upon by the learned counsel for the petitioners dealt with a case of selection of Junior Teachers in Orissa State Homeopathic Medical Colleges and in para 33 of the judgment the Hon'ble Supreme Court observed that the Members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorized specifically in that regard by the Rules made under Article 309 and it is basically the function of the rule making authority to provide the basis for selection. These observations are of little avail to the petitioners here because no such case has been set up by the petitioners that the cut off 60% marks and above was not authorized by the concerned department of the State Government itself. There is no reason to presume such insertion of condition by the department itself without due authorization by the competent authority of the State Government.
On the other hand, the other ratio of the said judgment goes against the petitioner, wherein, the Hon'ble Supreme Court rejected the contention of the petitioners about the necessity of selections to be held through Commission by holding as under:-
"Recruitment on the post of junior teachers under the Rules, as they originally stood, was also to be made in consultation with the Commission but the words, "in consultation with the SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 22/28 Commission" occurring in Rule 3 were deleted and substituted by the words "found suitable by the Selection Board" through amendment vide Government Notification dated 8-5-1984 issued by the Government under Article 309 of the Constitution with the result that the requirement to consult the Commission ceased to be obligatory from the date of amendment.
The finding reached by the Orissa Administrative Tribunal on the basis of Rule 8(2) read with Rule 10 that final selection in the matter of appointment on the post of junior teachers has also to be made by the Commission, is not correct. Sub-rule (2) of Rule 8 cannot be invoked in the matter of recruitment on the posts of junior teachers as whole of Rules 6, 7 & 8 deal with promotion on the post of lecturers and Principal.
Even Rule 10 which provides that the seniority of junior teachers shall be determined on the basis of rankings given to them at the time of their selection by the "Commission", cannot be pressed in aid of the contention that Commission has still a vital role to play in the matter of selection as Rule 10 was amended with retrospective effect (from 8.5.84) and the word "Commission" was substituted by the words "Selection Board"
indicating clearly that when Rule 3 was amended in 1984, there was an unconscious omission to amend Rule 10 which, as pointed out above, has since been done and the "Commission" has been totally excluded from the selection scenario. The findings, recorded to the contrary, by the Tribunal in its judgment dated 14.5.1990 and reiterated in its order dt. 16.8.1990 passed on the Review Petition are not correct."
(ii) The judgment in the case of Arup Das & Ors. vs. State of Assam & ors. - (2012) 5 SCC 559 relied upon by the learned counsel for the petitioners for their submission about appointments SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 23/28 made beyond the number of vacancies advertised is also not applicable to the facts of the present case as in the present case proviso to Rule 16 of 1973 Rules clearly permits appointments in excess of the number of vacancies advertised to the extent of 50% thereof in case the additional requirement is received before the completion of selection process. The said judgment is also, therefore, not applicable to the facts of the present case.
(iii) The third and the last judgment relied upon by the learned counsel for the petitioners in the case of Upen Chandra Gogoi vs. State of Assam & Ors. - (1998) 3 SCC 381 does not help the petitioners at all but is rather against the present petitioners. In the said case, the Hon'ble Supreme Court held as under:-
"The appellant who held the post of Judicial Magistrate which is a Grade III post was, in view of Rules 5(4)(a) &
(b) and 6 of the Assam Judicial Service Rules, 1967 eligible for appointment to a Grade II post provided he met the requisite criteria for promotion. He was not eligible for appointment to Grade I post of District Judge or Additional District Judge. He had first to secure promotion to a Grade II post before he could become eligible for promotion to a Grade I post. The appellant, therefore, was not a Judicial Officer qualified to be appointed as a District or Additional District Judge. The mere fact that the appellant having put in 8 years of service in Grade III was eligible for promotion to Grade II and thereafter to Grade I does not help the appellant. In order that he should be qualified to be appointed as a SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 24/28 District Judge or Additional District Judge he should be holding at lease a post in Grade II.
6. It is next contended by the appellant that in 1986 Assam Legislative Assembly Secretariat Rules came into effect. Under these Rules qualifications were prescribed, inter alia, for the post of Joint Secretary in the Assam Legislative Assembly Secretariat. In Schedule III of these Rules the minimum qualifications prescribed for direct recruitment to the post of Joint Secretary are seven years' standing practice at the Bar or "person" qualified to be appointed to Assam Judicial Service Grade-I and Grade-II and the Assam Legal Service Grade-II and Grade-III". The appellant contends that since he was holding a Grade-III post in the Assam Legal Service on deputation, he had the necessary qualification for being appointed as Joint Secretary. The Assam Legislative Assembly Secretariat Rules, 1986, however, came into force only on 28.10.1986, much after the appointment of the appellant. We fail to see how the qualification prescribed subsequently can help the appellant. The respondents have also contended that these qualifications were inserted by the appellant himself in the Draft Rules in order to validate his own appointment. Be that as it may, the subsequent Rules cannot affect the qualifications prescribed for the post of OSD. under the advertisement of 18-6-1985. The appellant was appointed pursuant to this advertisement. He had to meet the qualifications prescribed. The appellant has drawn our attention to Rule 38 of the Assam Legislative Assembly Secretariat Rules 1986, under which all orders made or action taken before these Rules came into force shall be deemed to have been made or taken as if these were made or taken SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 25/28 under these Rules. Rule 38 can apply only to orders lawfully made or action lawfully taken before these Rules came into force. It cannot validate an action which was not lawful at inception.
7. The High Court has, therefore, rightly come to the conclusion that the appellant did not possess the prescribed qualifications at the time when he was appointed in 1985 as Officer on Special Duty. We are informed that the appellant has since been reverted to Assam Judicial Service in a Grade III post and has thereafter also been promoted to a Grade II post."
23. On the other hand, the Hon'ble Supreme Court in the case of Union of India & Anr. vs. T. Sundararaman & Ors. - (1997) 4 SCC 664 upheld the applying of filter or the screening line by prescribing higher qualification or longer period of experience for shortlisting or reducing the number of candidates at the threshold in the following manner:-
"The Tribunal has clearly erred in doing so. Note 21 to the advertisement expressly provides that if a large number of applications are received the commission may shortlist candidates for interview on the basis of higher qualifications although all applicants may possess the requisite minimum qualifications. In the case of M.P. Public Service Commission v. Navnit Kumar Potdar and Anr. this Court has upheld short listing of candidates on some rational and reasonable basis. In that case, for the purpose of short listing, a longer period of experience than the minimum prescribed was used as a criterion by the Public Service SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 26/28 Commission for calling candidates for an interview. This was upheld by this Court. In the case of Govt. of A.P. v. P. Dilip Kumar and Anr. also this Court said that it is always open to the recruiting agency to screen candidates due for consideration at the threshold of the process of selection by prescribing higher eligibility qualification so that the field of selection can be narrowed down with the ultimate objective of promoting candidates with higher qualifications to enter the zone of consideration. The procedure, therefore, adopted in the present case by the Commission was legitimate. The decision of the Tribunal is, therefore, set aside and the appeal is allowed. There will, however, be no order as to costs."
Similarly, in Tridip Kumar Dingal & Ors. vs. State of West Bengal & ors.- (2009) 1 SCC 768 the Hon'ble Supreme Court upheld providing of such cut off criteria even though a written test was provided as an elimination test and the Court held that such provision could be made on the basis of administrative instruction. The relevant portion of the judgment is quoted below for ready reference:-
"There is substance in the contention of the State Government that written examination was for shortlisting the candidates and was in the nature of "elimination test", in view of the fact that about 4000 candidates had applied against 80 posts. The State authorities had, therefore, no other option but to "screen" candidates by holding written examination. Even in the absence of statutory provisions, such an action can be taken on the SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 27/28 basis of administrative instructions, for the purpose of "elimination" and "shortlisting" of huge number of candidates provided the action is otherwise bonafide and reasonable.
The High Court did not commit any error of law in directing the authorities to prepare merit list on the basis of marks obtained by the candidates in written examination as also in oral interview. The Tribunal and the High Court were right in holding that the merit list was required to be prepared on the basis of composite marks obtained by candidates at the written examination and oral interview both, and not only on the basis of marks at the oral interview."
Similar view has been reiterated in the case of Andhra Pradesh Publish Service Commission vs. Baloji Badhavath & Ors. - (2009) 5 SCC 1 and B. Ramakichenin vs. Union of India & Ors. - (2008) 1 SCC 362 in which the Hon'ble Supreme Court observed as under:-
"Method of short-listing can be validly adopted by the Selection Body. Even if there is no rule providing for short-listing nor any mention of it in the advertisement calling for applications for the post, the Selection Body can resort to a short-listing procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. For example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of short- listing can be resorted SBCWP No.11047/10 - Hanuman Prasad Vyas & Anr. vs. State & Ors.
with 4 connected matters.
Judgment dt: 30th October, 2014 28/28 to by the Selection Body, even though there is no mention of short-listing in the rules or in the advertisement."
24. Thus, in view of the aforesaid legal conspectus and the statutory provisions and various contentions dealt with above, this Court is of the considered opinion that the writ petitions lack merit and deserves to be dismissed and same are accordingly dismissed. No order as to costs.
(DR.VINEET KOTHARI), J.
item no.13-17 baweja/-