Central Administrative Tribunal - Jabalpur
Amit Patel vs Union Of India on 6 September, 2013
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
Original Applications Nos. 303, 317, 344,386,395,408,431 & 448 of 2012
Jabalpur, this Friday, the 06th day of September, 2013
Honble Mr. Justice Dhirendra Mishra, Judicial Member
Honble Mr. G.P.Singhal, Administrative Member
(1) ORIGINAL APPLICATION NO. 303 of 2012
Amit Patel, C/o Shri S.J. Patel, Date of Birth 17.07.1982,
House No 104, Tulsi Nagar, Ranjhi,
Jabalpur-482 005 (M.P.) -Applicant
(By Advocate Shri S.K.Nandy)
V e r s u s
1. Union of India, Through its Secretary,
Ministry of Defence, South Block, New Delhi 110 001
2. Chairman-cum-Director General,Ordnance Factories Board,
10-A, Shaheed S.K. Bose Marg, Kolkatta (W.B.) 70001
3. General Manager, Vehicle Factory,
Jabalpur 482011 Respondents
(By Advocate Shri S.S.Chouhan)
(2) ORIGINAL APPLICATION NO. 317 of 2012
Smt. Aruna Patel (Lodhi), Aged 29 years, w/o Shri Rampal Lodhi,
R/o 172, 4th Miles, Mandla Road, Tilheri, Tahsil & District Jabalpur,
Permanent Resident of House No. 2561/1B, Shivpuri Kajarwara,
Katiaghat Road, Post Office Temar Bheeta, P.S. Cantt., Sadar,
District Jabalpur (M.P.) PIN 482 001. - Applicant
(By Advocate Shri K.N.Pethia)
V e r s u s
1. Union of India, Through its Secretary,
Ministry of Defence Production, South Block ,
New Delhi, Pin NO. 110 001
2. The Chairman, Ordnance Factory Board,
10-A, Shaheed Khudi Ram Bose Road,
Kolkata (W.B.), Pin No. 700001
3. The Senior General Manager, Vehicle Factory,
Vehicle Estate, Jabalpur (M.P.), Pin 482009
4. The General Manager, Ordnance Factory,
Khamaria, Ranjhi, Jabalpur(M.P.),Pin:482005 Respondents
(By Advocate Shri S.S.Chouhan)
(3) ORIGINAL APPLICATION NO. 344 of 2012
Manoj Tiwari, S/o Shri Mohan Lal Tiwari, Date of Birth 01.01.1986,
R/o House No 317, Sarrapipal, Near Khermai Temple,
Ranjhi, Jabalpur 482005 (M.P.) - Applicant
(By Advocate Shri S.K.Nandy)
V e r s u s
1. Union of India, Through its Secretary,
Ministry of Defence, South Block, New Delhi 110 001
2. Chairman-cum-Director General, Ordnance Factories Board,
10-A, Shaheed S.K. Bose Marg, Kolkatta (W.B.) 70001
3. General Manager, Vehicle Factory,
Jabalpur 482001 -Respondents
(By Advocate Shri S.S.Chouhan)
(4) ORIGINAL APPLICATION NO. 386 of 2012
1. Manisha Chandel, D/o Late G.S.Chandel,
Aged about 31 years, R/o 114, Bheem Nagar,
Polipathar, Gwarighat Road, Jabalpur 482 008 (M.P.)
2. Shekhar Kuppuswamy, S/o Shri Kuppuswamy,
Aged 38 years, R/o Block No. 53/C Type II Sector-I,
Ordnance Factory, Chanda, District Chandrapur (M.S.) 442 401
3. Rekha Rapartiwar, D/o Shri Ramesh Rapartiwar,
Aged 32 years, R/o Plot No.42, COD Colony, Suhagi,
Adhartal, Jabalpur-482 004 (M.P.)
4. Amol Tayde, S/o Shri Dilip Rao Tayde,
Aged 24 years, C/o Shri J.P.Tiwari, House No.1607,
Near Anad Bhawan, Old Kanchanpur, Jabalpur-482004 (M.P.)
5. Rajkumar Burman, S/o Shri Charanlal Burman,
Aged 28 years, R/o 2379/2, In Front of Shankarji Temple,
Bedi Nagar, Nagpur Road, Jabalpur 482 001 (M.P.)
6. Ku. Madhuri, D/o Shri Suresh Kumar,
Aged about 21 years, R/o House No 359, Lodha Mandi,
Near Kali Temple, Jwalapur Haridwar -2494079 (Uttaranchal)
7. Karan Kumar Mahto, S/o Shri Bhanu Mahto,
Aged About 25 years, R/o Village Nipaniya,
P.O. Pargha, Police Station Baliyapur,
District Dhanbad (Jharkhand) 826001 - Applicants
(By Advocate Shri Vijay Tripathi)
V e r s u s
1. Union of India, Through its Secretary,
Ministry of Defence, Defence Production,
South Block, New Delhi 110 001
2. Chairman-cum-Director General,
Ordnance Factories Board, Ayudh Bhawan,
10-A, Shaheed S.K. Bose Marg,
Kolkatta 700001 (W.B.)
3. Senior General Manager, Vehicle Factory,
Jabalpur 482009 (M.P.) -Respondents
(By Advocate Shri S.S.Chouhan)
(5) ORIGINAL APPLICATION NO. 395 of 2012
Ghanshyam Choudhary, S/o Shri Chamanlal Choudhary
Aged about 31 years, R/o House No. 2050, Purani Basti,
Jhanda Chowk, Ranjhi, Jabalpur (M.P.) 482 005 - Applicant
(By Advocate Shri Gautam Prasad)
V e r s u s
1. Union of India, Through its Secretary,
Ministry of Defence, South Block, New Delhi 110 011
2. Chairman/DGOF, Ordnance Factory Board,
Ayudh Bhawan, 10-A, Shaheed Khudi Ram Bose Marg,
Kolkatta 700001
3. The General Manager, Vehicle Factory,
Jabalpur (M.P.) 482009 -Respondents
(By Advocate Shri S.S.Chouhan)
(6) ORIGINAL APPLICATION NO. 408 of 2012
Amita Singh, Ageed about 26 years,
D/o Shri Ramnath Singh Rajput,
R/o Quarter No. 2766, Sector-2, Type-II,
Vehicle Estate, Jabalpur (M.P.), Pin No.482009 -Applicant
(By Advocate Shri R.S.Tripathi proxy counsel for Shri K.N.Pethia)
V e r s u s
1. Union of India, Through Secretary,
Ministry of Defence, Production, South Block,
New Delhi, Pin No.- 110 001
2. The Chairman, Ordnance Factory Board, 10-A,
Shaheed Khudi Ram Bose Road,
Kolkatta (W.B.), Pin No. 700001
3. The Senior General Manager, Vehicle Factory,
Vehicle Estate, Jabalpur (M.P.), Pin : 482009
4. The General Manger, Ordnance Factory,
Khamaria, Ranjhi, Jabalpur (M.P.), Pin: 482005 - Respondents
(By Advocate Shri S.S.Chouhan)
(7) ORIGINAL APPLICATION NO. 431 of 2012
Bhoopandra Singh, S/o Shri Kishan Singh,
Aged about 29 years, village Peeri, Post Neemgaon
District Mathura (U.P.) PIN 281 204 - Applicant
(By Advocate Shri Rahul Rawat)
V e r s u s
1. Union of India, Through Secretary,
Ministry of Defence, (Production), South Block New Delhi 110 001
2. Ordnance Factory Board, Through its Director
General/ Chairman, 10-A, Ayudh Bhawan,
Shaheed Khudi Ram Bose Marg, Kolkatta 700001
3. Senior General Manager, Vehicle Factory,
Vehicle Estate, Jabalpur- 482009 -Respondents
(By Advocate Shri S.S.Chouhan)
(8) ORIGINAL APPLICATION NO. 448 of 2012
Diwakar Patel S/o Uma Shankar Patel,
Aged about 27 years, R/o Village and Post Bodarwar,
P.S. Kaptanganj, District Kushinagar (UP)
PIN Code 274149 - Applicant
(By Advocate Shri Pushpendra Dubey)
V e r s u s
1. Union of India, Through Secretary,
Ministry of Defence, (Production), South Block New Delhi 110 001
2. Ordnance Factory Board, Through its Director
General/Chairman, 10-A, Shaheed Khudi Ram Bose Road,
Kolkatta (Pin- 700001)
3. Vehicle Factory Jabalpur, Vehicle Estate, Jabalpur,
Through General Manager,
Jabalpur Pin- 482009 -Respondents
(By Advocate Shri S.S.Chouhan)
(Date of reserving the order : 15.07.2013)
ORDER
By Dhirendra Mishra, JM.-
The above Original Applications are being disposed of by this common order as the applicants participated in the selection process initiated by the respondents Vehicle Factory Jabalpur (in short VFJ) for filling of 475 posts of Group-C (semi-skilled) Grade in various trades, and their appointment/candidature has been cancelled on the ground that they do not possess National Council for Vocational Training (in short NCVT) certificate and they are not meeting the essential prescribed qualification. For the purposes of this order, reference shall be made to the documents and facts pleaded in OA No.317/2012, unless not specifically referred to any other OA.
2. Briefly stated facts of the case necessary for adjudication of these OAs are that the respondents issued employment notification for filling up Group-C posts of Semi Skilled grade. The applicant, who is having Diploma in Mechanical Engineering and one year apprenticeship certificate from the Board of Apprenticeship Training Western Region, Mumbai submitted her candidature and accordingly, the respondents issued admit card (Annexure A-3) to her for appearing in the examination. She successfully passed the written test and was called for appearing in the trade test (Annexure A-4). After trade test, her name was included in the panel of selected candidates for the post of Examiner Engineer (semi-skilled). However, her selection was reviewed after obtaining clarification from the Ordinance Factory Board, Calcutta and it was decided that the selected candidates, who do not have the basic technical qualification of the National Apprenticeship Certificate/National Trade Certificate, issued by the NCVT, shall not be issued with the offer of appointment. The applicants have been denied appointment on the ground that they are not having the requisite qualification as they are possessing higher qualification of Diploma/Degree in Engineering in different trades and applicants representations for issuance of appointment has been rejected vide Annexure A-6/R-5.
3. Shri K.N.Pethia, learned counsel for the applicant vehemently argued that the respondents have denied appointment to the applicants solely on the ground that on verification of her record, it was found that she does not possess NCVT certificate, and thus, she is not meeting the essential prescribed qualification, whereas the applicant, after obtaining diploma certificate, has also undergone apprenticeship training, as would be evident from the Diploma Certificate in Mechanical Engineering and the certificate of proficiency under the Apprenticeship Act, 1961, issued by the Board of Apprenticeship Training (Western Region) Mumbai, cumulatively filed by the applicant as Annexure A-1. From perusal of paragraph 5 of the employment notification of Annexure R-1, it is clear that for the advertised posts, essential qualification was prescribed as NCVT certificate in the relevant trade, failing which by ITI or equivalent Diploma/Certificate holders. Since the applicant is possessing the Engineering Diploma in Mechanical Engineering and is also possessing the certificate of proficiency after undergoing the apprenticeship training under the Apprenticeship Act, 1961, which is equivalent to NCVT certificate, she was possessing essential qualification as prescribed in the advertisement, however, the respondents have ignored the same. The NCVT certificate holders are required to undergo workshop practice and training whereas the applicant has also been imparted in workshop training and education in the diploma course of Mechanical Engineering as would be evident from the Curriculum prescribed by the All India Council for Technical Education for Diploma in Mechanical Engineering, 2011, available on record. The essential qualification prescribed in the employment notification specifically clarifies that the candidate, who possesses NCVT Certificate in the relevant trade, failing which the posts, may be filled by ITI or equivalent diploma/certificate holder. Since the applicant in the present case is diploma holder in the Mechanical Engineering and also possesses proficiency certificate after undergoing training under the Apprenticeship Act, 1961, she fulfils the criteria as per Boards decision dated 21.10.2011. Even after Ordnance Factory Boards letter dated 21.10.2011, the Ordnance Factory Khamariya, a unit of defence production under the same Ministry and the same department has appointed as many as 11 persons by order dated 30.11.2011, (filed as Annexure A-9 in OA No.408/2012) and the candidates at serial No.1 to 3, 6, 7 & 8 are diploma holders in Engineering whereas candidates at Serial No.4, 5, 9 & 10 are I.T.I and the aforesaid fact has not been denied by the Ordnance Factory Khamariya. The candidates having diploma/degree in Engineering is required to undergo higher training and education, which is superior to the education/training imparted to Apprenticeship or NCVT certificate holders. The applicant had applied for examiner trade and there is no NCVT certificate specified in the examiner trade, and therefore, the respondents could not have rejected her candidature only on the ground that she does not have NCVT certificate in the examiner trade.
4. Reliance is placed on the judgment of the Honble Supreme Court in the matters of Mohd. Riyazul Usman Gani and others Vs. District & Sessions Judge, Nagpur AIR (2000) SC 919.
5. Shri Vijay Tripathi, learned counsel for the applicants appearing in OA No.386/2012, Shri S.K.Nandy, learned counsel for the applicants appearing in OA Nos. 303 & 344/2012, and Shri Gautam Prasad, learned counsel for the applicant appearing in OA No.395/2012 advancing similar arguments further argued that SRO 185/1994 has been issued under Proviso to Article 309 of the Constitution of India by the president and the respondents can not override the same by executive instructions, which was issued on 21.10.2011. Even otherwise, clarification dated 21.10.2011 does not impose any restriction against appointment of Degree and Diploma holders in Engineering. That apart, from perusal of the document of Annexure A-8, it is evident that the Ordinance Factory, Khamariya has issued appointment order on 30.11.2011 and the candidates, who are holding engineering diploma/degree have also been appointed. The respondents are misinterpreting the clarification dated 21.10.2011 which reiterates in paragraph 3 that when applicants with NCVT certificate are not available, then only applicants with ITI or equivalent diploma/certificate holders shall be considered and the SRO 1994 does not exclude the holders of the degree and diploma in the engineering from participating in the selection process. Possessing of qualification higher then the required qualification under the recruitment rules and the advertisement cannot be made a ground for denying appointment.
6. Reliance is placed on the judgment of the Honble Supreme Court in the matters of Ex.Capt. K.Balasubramanian Vs. State of Tamil Nadu, (1991) 2 SCC 708, Ajay Kumar Das Vs. State of Orissa, (2011) 11 SCC 136, State of Haryana and another Vs. Abdul Gaffar Khan and another, (2006) 11 SCC 153.
7. On the other hand, Shri S.S.Chouhan, learned counsel appearing for the respondents argued that the applicants name was finally included in the select panel for the post of Examiner Engineer (semi-skilled). However, before issuing appointment order to the selected candidates, clarification was sought from the Ordnance Factory Board, Calcutta and the Board vide memo of Annexure R-4, dated 21.10.2011, communicated to all concerned and clarified that the National Apprenticeship Certificate and National Trade Certificate issued by the NCVT in the relevant trade, can be accepted as the qualification required for direct recruitment to the semi-skilled post mentioned in Annexure A of the SRO 185 of 1994. Degree and Diploma Engineering cannot be accepted as qualification for direct recruitment to the semi skilled post. It has been further clarified that only when the applicants with the NCVT certificates are not available, applicants with ITI or equivalent diploma/certificate holders will be considered.
8. Referring to the Ordinance Factory Group C and Group D Industrial Post Recruitment Rules, 1994, notified vide SRO 185 dated 01.11.1994, it was argued that the essential qualification of candidates for recruitment to Group C and Group D posts in the Ordinance Factory is governed by the above rules. The educational and other qualification for the trades described in Annexure A is prescribed in the Schedule appended with the Rules, as NCVT certificate in the relevant trade, failing which by ITI or equivalent diploma/certificate holders. Note 10 under the SRO 185 stipulates that the question whether a qualification is equivalent to the prescribed qualification in column 8 of the Schedule is to be decided by the Ordinance Factory Board. After seeking clarification from the Ordinance Factory Board vide Annexure R-4, the cases of the selected candidates were reviewed and it was discovered that 35 candidates, including the applicants, did not possess the requisite technical qualification and they were having the qualification of Diploma/Degree in different streams. The NCVT certificate is in relation to training in skill and not training in Engineering and the candidates to be recruited as semi-skilled workman are required to work on the shop floor and not in the supervisory capacity. The clarification of the Ordnance Factory Board is applicable to all the Factories under the Board. No candidates possessing Degree/Diploma in Engineering has been appointed on semi-skilled post after 21.10.2011 and only some candidates were appointed having Engineering diploma/degree before issuance of the clarification dated 21.10.2011. The training in skill is imparted to the candidates possessing NCVT/ITI certificates. Education and training in engineering diploma/degree is substantially different. The equivalence of prescribed qualification under the rules is to be decided by the Ordinance Factory Board.
9. Reliance is placed on the judgment of the Honble Supreme Court in the matters of Bihar Public Service Commission Vs. Kamini & Others (2007) 5 SCC 519. Reliance is also placed on the decision of the Honble High Court of M.P. in the matters of Ashish Pratap Singh & Anr. Vs. State of M.P.& Ors., ILR 2013 M.P.605.
10. Heard learned counsel for the parties, perused the pleadings of the respective parties and documents annexed therewith.
11. The applicants, who posses diploma/degree in engineering participated in the selection process in response to the advertisement issued by the VFJ for Group C post of semi-skilled grade in the pay band of Rs.5200-20200/- and grade pay of Rs.1800/- plus other allowances for different advertised posts. Applicants in OA No.317/2012 and 408/2012 also possess certificate of proficiency after they had undergone the apprenticeship training under the Apprenticeship Act, 1961 in addition to diploma in engineering. All of them were permitted to participate in the selection process and they qualified in the written examination and trade test. They were provisionally placed in the select list of the post for which they had applied. However, their selection was reviewed in the light of clarification dated 21.10.2011, issued by Ordinance Factory Board, Calcutta on the ground that they do not possess NCVT certificate and do not meet the essential prescribed qualification and therefore, their candidature could not be considered for the post which they had applied.
12. 475 posts of semi-skilled grade of different categories were advertised by the VFJ vide Annexure R-1. Paragraph 5 of the advertisement prescribes essential qualification for different posts as National Council for Vocational Training Certificate (NCVT) Certificate in the relevant trade, failing which by ITI or equivalent Diploma/Certificate holders.
13. Vide SRO 185, dated 01.11.1994, the respondents, in exercise of power under Article 309 of the Constitution of India, notified Ordinance Factories Group C and Group D Industrial Post Recruitment Rules 1994 in supercession of recruitment rules 1989. It is not in dispute that the Recruitment Rules 1994 is also applicable to the present recruitment as the trades for which the recruitment was commenced are included in Annexure A appended with the rules. Under the aforesaid SRO method of recruitment, age limit, qualification and other matters connected therewith are specified in column 5 to 14 of the Schedule. Entry No.5 of the Schedule appended with the rules is in relation to the semi-skilled workman (list of trades Annexure A and B). In column 8 of the above entry for the trades at Annexure A, qualification is prescribed as National Council of Trades in Vocational Certificate in the relevant trade, failing which by ITI or equivalent diploma/certificate holders. In paragraph 5 of the advertisement also, the same has been prescribed as essential qualification.
14. Note 9 and 10 appended with the Rules deals with equivalence of post and equivalence of qualification, which reads as under:
Note 9: The words equivalent posts and its variants in these rules will mean any posts in some or identical scale of pay as another posts in the same or another category and which posts the Ordinance Factory Board or General Manager of Factory may declare as equivalent posts and they will be considered to be interchangeable or stroke (/) appointments.
Note 10: In relation to prescribed qualifications under Column 8 of this Schedule the question wherther a qualification is equivalent to the prescribed qualification for any post shall be decided by the Ordnance Factory Board.
Note 11 of the rules empowers the Ordinance Factory Board to authorized any member of the board or any Additional Director General of the Ordinance Factory to exercise any or all power on its behalf.
15. The Ordinance Factory Board vide its communication dated 21.10.2011, clarified SRO 185/1994 with regard to educational qualification for direct recruitment for the trades at Annexure A, which stipulates NCVT certificate in the relevant trade, failing which by ITI or equivalent diploma/certificate holders. Clarification reads as under:
3. In view of the above said SRO provisions, the National Apprentice Certificate and National Trade Certificate issued by NCVT in the relevant trade can be accepted as the qualification required for direct recruitment to semi-skilled posts as Annexure A to the said SRO. Further Degree and Diploma in Engineering cannot be accepted as qualification for Direct Recruitment to the semi-skilled posts. It is also clarified, that only when applicants with NCVT certificates as mentioned above are not available, then only applicants with ITI or equivalent Diploma/Certificate holders will be considered.
16. Learned counsel for the applicants vehemently argued that SRO 185 has been issued in the name of President in exercise of power under Article 309 of the Constitution and the same cannot be clarified by any administrative instructions of the Ordinance Factory Board. We are unable to accept the above contention as the stipulation at entry No.5 of Schedule, appended with the Recruitment Rules, 1994 with regard to qualification refers to ITI or equivalent diploma/certificate holders, in case candidates with NCVT certificate are not available. Thus, the question whether any diploma/certificate is equivalent to NCVT certificate is to decided by the appropriate authorities under the rules. Note No.10 appended with the rules empowers the Ordinance Factory Board to decide the question whether qualification is equivalent to prescribed qualification for any post under column 8 of the Schedule.
17. Similarly, the judgment of the Honble Supreme Court in K.Balasubramanian and Ajaya Kumar Das (Supra), in relation to executive orders prescribing different criteria for fixation of seniority then as provided under the statutory rules and in these circumstances, the Honble Supreme Court held that the statutory rules framed under Article 309 of Constitution of India, cannot be amended by any administrative instructions or circular.
18. In the matters of Abdul Gaffar Khan (Supra), the selection process for the post of Unani Dispenser, essential qualification mentioned in the advertisement and under the rules was Unani Dispenser or Up-Vaidya from any recognized University/institution or Board or Faculty of Indian System of Medicine with knowledge of Urdu; Matric or its equivalent, and knowledge of Hindi and English up to Matric standard. Respondents who were possessing qualification of Bachelor of Unani Medicine and Surgery from Kanpur University apart from matric with Hindi and 10+2 with Science were denied appointment on the ground that they were not possessing diploma in Unani Dispenser or Up-Vaidya, whereas, under the rules, neither diploma was stipulated as required qualification nor degree was expressly excluded in the advertisement or the rules in this factual background. The Honble Supreme Court considering the above facts held that the respondents possessed the required qualification and were eligible for appointment to the post of Unani Dispenser. However, in the instant case, the advertisement as well as in the rules, there is specific provision that essential qualification for the different posts is NCVT certificate in the relevant trade, failing which by ITI or equivalent diploma/certificate holders and the applicants are neither NCVT nor ITI certificate holders. The authority, who is competent under the rules to decide equivalence of qualification, has clarified that degree and diploma in engineering cannot be accepted as qualification for direct recruitment to the semi-skilled post.
19. The respondents, in their reply, have categorically stated that for appointment to the post of semi-skilled workman, a candidate is required to have certain skills related to his trade with precession by taking safety precaution whereas, the candidates possessing the diploma or degree in engineering may have higher skill in engineering, but they do not have necessary training to perform semi-skilled job on the shop floor and such training is imparted only to the candidates, who possess NCVT certificate, failing which ITI or equivalent diploma/certificate.
20. It has been vehemently argued by the learned counsel for the applicants that the Ordnance Factory, Khamariya, under the same Ministry initiated recruitment process for semi-skilled Group-C employee for the same trade vide Annexure A-7, and considered diploma/degree holders to be eligible for the post and appointed vide order dated 30.11.2011, i.e. after issuance of clarification dated 21.10.2011 by the Ordnance Factory Board and the applicants cannot be discriminated by the respondents on the ground that, being diploma/degree holders in engineering, they do not have the qualification for the direct recruitment to the semi-skilled posts. However, from perusal of the order dated 30.11.2011 of the Ordnance Factory, Khamariya, we find that in pursuance of the above selection process initiated by the Ordnance Factory Khamariya, engineering diploma and degree holders were appointed between 29.09.2011 to 13.10.2011. No engineering diploma or degree holders have been appointed after OFBs clarification issued on 21.10.2011. In view of the clear stand of the respondents that after clarification of the OFB on 21.10.2011, no engineering diploma/degree holders has been appointed in their organization against Group C semi-skilled post on different trades, the applicants claim for relief on the ground of parity cannot be accepted.
21. It was vehemently argued on behalf of the applicants that the SRO 185 of 1994 does not expressly exclude the degree/diploma holders in engineering from participating in the selection process and the advertisement also nowhere stipulates that candidates having diploma/degree in engineering are not eligible for appointment and therefore, the respondents could not have denied them appointment solely on the basis of the clarification of the Ordnance Factory Board. It was further argued that the higher qualification of the applicants cannot be disqualification for selection to the post.
22. In the matters of Kisna and others Vs. M.P. State Electricity Board and others, the Honble High Court of M.P. vide its order dated 02.03.2005 passed in WP (S) No.4578/2004 allowed the Writ Petition of the employees of the associates, who were denied benefit of absorption solely on the ground that they were over qualified. Relying upon the decision of the Honble Supreme Court in the matters of Mohd. Riazul Usman Gani (Supra), it was observed that the petitioners therein were working in the Society as Nominal Muster Roll employee and were doing the similar work, which were allotted to them. In Mohd. Riazul Usman Gani (Supra) the issue was treating the petitioners unfit for the post of Peon, Sweepers and Gardener on the ground that they were over qualified. The Honble Supreme Court disagreeing with the above reason, observed that under the Recruitment Rules the only qualification for both the categories is good physique and also to carryout the duties attached to the post and therefore, the candidates having higher qualification cannot be disadvantaged. However, it has been clarified that they are not laying down a rule of universal application.
23. In the matters of Chandrakala Trivedi Vs. State of Rajasthan (2012) 3 SCC 129, the Honble Supreme Court disagreeing with the findings of the Honble High Court that the higher qualification is not the substitute for qualification of Senior Secondary or Intermediate, held that, we fail to appreciate the reasoning of the High Court to the extent that it does not contain higher qualification as equivalent to the passing of higher secondary education even of the candidate, who is provisionally selected and further observed that by using the expression equivalent one means that there are some degrees of flexibility or adjustment, which do not lower the standard of requirement. There has to be some difference between what is equivalent or what is exact.
24. Similarly, law laid down by the Honble Supreme Court in Hemani Malhotra Vs. High Court of Delhi, (2008) 7 SCC 11, is not applicable in the facts of the present case as in the said judgment, minimum marks in viva voce was prescribed after written test was over and in these circumstances, the Honble Supreme Court held that rules regulating the selection, cannot be challenged during selection process or when it is over, whereas in the present case eligibility criteria for participating in the selection process has not been changed during the selection process and the competent authority has only clarified that engineering diploma/degree cannot be accepted as equivalent to NCVT certificate.
25. The principle of law laid down in the aforesaid judgments, has no application to the facts of the present case as in the instant case, essential qualification prescribed in the rules for the trade of Annexure A is NCVT certificate in the relevant trade, failing which by ITI or equivalent diploma/certificate holder. As already pointed out in the foregoing paragraphs, the equivalence of the qualification is to be decided by the Ordnance Factory Board and the Board, which is an expert body and is aware of the functions of the semi-skilled employees, who were to discharge their duties on shop floor, has clarified that holders of diploma and degree in engineering cannot be accepted for direct recruitment to the semi-skilled post.
26. In the matters of Ashish Pratap Singh (Supra), the Honble High Court of MP, while dealing with the equivalence of the qualification for the post of Food Inspector under Rule 8 of the Prevention of Food Adulteration Rules, 1955 held that degree in Agriculture Engineering cannot be equated with the degree in Agriculture. Paragraph 6 of the judgment is reproduced as under:
I have considered the respective submissions made by learned counsel for the parties. In Bihar Public Commission and others Vs. Kamini and others, (2007) 5 SCC 519 it has been held that in the field of education, the court of law cannot act as an expert. Normally, Therefore, whether or not a candidate possesses requisite qualifications should better be left to a recruiting agency as it has to consider the suitability of a candidate to be appointed according to its. Need. (Also see: Maheshwari Prasad and others vs. State of Jharkhand and others, (2012) 5 SCC 439]. It is well settled in law that the mode of recruitment, qualification and criteria of selections are the matters which fall within the exclusive domain of the employer. Though the aforesaid decision of the employer is subject to judicial review the Court will be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the decision taken by the employer in such matters. [See: Official Liquidator vs. Dayanand and others, (2008) 10 SCC 1]. It is equally well settled legal proposition that it is for the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The courts and tribunals can neither prescribe the qualification nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. [See: (2011) 9 SCC 645].
27. In the instant case, as already observed, the essential qualification prescribed for semi-skilled workman for the trades at Annexure A appended under the rules is NCVT certificate in the relevant trades, failing which by ITI or equivalent diploma/degree holder as prescribed at entry No.5 of the Schedule, appended with the rules. The Ordnance Factory Board is the competent authority to take a decision in relation to prescribed qualification under column 8 of the schedule. The question whether a qualification is equivalent to the prescribed qualification or not, and the Board has clarified that, degree and diploma in engineering, cannot be accepted as qualification for direct recruitment to the semi-skilled posts, and in view of the above clarification, the applicants, who admittedly do not possess the NCVT certificate or ITI, cannot claim that they were eligible for direct recruitment to semi-skilled post at Annexure A to the SRO 185 of 1994.
28. However, Smt. Aruna Patel (Lodhi), applicant in OA No.317/2012 also possesses certificate of proficiency, issued by Board of Apprenticeship Training (Western Region) Mumbai, which has been given to her after she has undergone the apprenticeship training under the Apprenticeship Act, 1961, apart from diploma certificate in Mechanical Engineering (Annexure A-1).
29. Similarly, Amita Singh, applicant in OA No. 408/2012 has undergone one year diploma certificate under Section 3(A) of the Apprentice (Amendment) Act, 1986, apart from having diploma certificate in Mechanical Engineering. Their candidature has also been rejected by reference to the above clarification of the Ordnance Factory Board, Calcutta that degree and diploma in engineering cannot be accepted as qualification for direct recruitment to the semi-skilled post without considering their proficiency certificate/certificate issued to them after they had undergone training under the Apprenticeship Act, 1961 and Apprentice (Amendment) Act, 1986.
30. On the basis of the aforesaid discussions, the Original Applications Nos.303, 344, 386, 395, 431 and 448/2012 filed by the applicants possessing only engineering diploma/degree are dismissed.
31. Original Applications Nos. 317/2012, filed by Smt. Aruna Patel (Lodhi) and 408/2012, filed by Amita Singh, are allowed. The order dated 26.02.2012, filed as Annexure A-6 in OA No.317/2012 and A-7 in OA No.408/2012 is set aside. The respondents are directed to reconsider the candidature of Smt. Aruna Patel (Lodhi) and Amita Singh for appointment to the Group C (semi-skilled) Trade, keeping in view the proficiency certificate/certificate submitted by them and decide the same within a period of 90 days from the date of communication of this order. However, there shall be no order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member am 1 OAs 303,317,344,386,395,408,431 & 448/2012 Page 1 of 17