Gujarat High Court
Amaliyar Jayeshkumar Vichiyabhai & 18 vs State Of Gujarat & on 19 February, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/1876/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1876 of 2007
With
LETTERS PATENT APPEAL NO. 1877 of 2007
In
SPECIAL CIVIL APPLICATION NO. 21754 of 2007
TO
LETTERS PATENT APPEAL NO. 1894 of 2007
In
SPECIAL CIVIL APPLICATION NO. 21771 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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AMALIYAR JAYESHKUMAR VICHIYABHAI & 18....Appellant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
Page 1 of 9
C/LPA/1876/2007 JUDGMENT
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Appearance:
MR DP JOSHI, ADVOCATE for the Appellant(s) No. 1 - 19
MS JIGNA M DAVE, ADVOCATE for the Appellant(s) No. 1 - 19
MR JK SHAH AGP for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 19/02/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. These appeals have been filed against the common judgment and order dated 05.09.2007 passed in the captioned writ petitions.
2. While disposing of the above group of writ petitions, the learned single Judge made the following observations in paras - 4 to 6 of the impugned judgment;
"4. Learned Assistant Government Pleader Ms. Sandhya Natani appearing with other Assistant Government Pleaders for the respondentýState Authorities has filed a detailed affidavitin reply, a copy of which is served to the petitioners' advocate. According to the learned Assistant Government Pleader, the advertisement was published in Gujarat Samachar Daily and other newspapers on 8th August 2007 for 237 posts of Kaushalya Sahayak and 20 posts of Group Kaushalya Sahayak and the application was to be submitted till 31st August 2007, but the said date for inviting application is now extended further to 29th September 2007. The answer given by the department to the contention raised by the petitioners that the petitioners have grievance against the ýSQýý i.e. [Quotient = minimum passing marks in ITIATI / minimum passing marks in diploma = Page 2 of 9 C/LPA/1876/2007 JUDGMENT (357/700)/(36/100) = 1.418] which is given to diploma holder, is that the said quotient is given to equalize the diploma holders with the ITI passed as the qualification of diploma is more higher compared to the qualification of ITI. According to the respondents, in Recruitment Rules, it is very specifically mentioned that preference shall be given to a candidate who in addition possesses instructors training at the Central Training Institute or diploma holders in the appropriate branch in the trade concerned. The said Recruitment Rules of 23rd December 1969 are annexed to the reply. It is submitted that the State Government has passed resolution dated 13th September 2001 considering the said Recruitment Rules and published the guidelines regarding the merit formula for the post of Kaushalya Sahayak and Group Kaushalya Sahayak and also specifically classified the criteria for the selection of candidates for ITI pass or apprenticeship pass, ITI + apprenticeship pass or diploma. Multipliacation is given according to the qualification and the weightage of the course. In the said Government Resolution, it is mentioned that additional five marks is required to be given to the candidates, who have passed CTI Course and the diploma course as per the required preference mentioned in the Recruitment Rules. According to the respondents, the diploma course is more wide and higher compared to the ITI Course and the percentage for passing the diploma course is 36% while the percentage required for passing ITI course is 51% and, therefore, considering the passing qualification for the eligibility criteria for selecting the candidates for the post of Kaushalaya Sahayak, diploma candidate would not get opportunity to get selected as their passing percentage is only 36% and the merit for selection of the passed candidates would be more favourable for the candidates who are from ITI. It is submitted that, therefore, with an intention to give a preference for the higher qualification some additional weightage is required to be given to the candidates who are higher qualified. Moreover, looking to the merits for diploma engineering course, nearby 75% to 80% is required for admission while there is no such higher percentage is required for ITI admission. There are total 145 institutes for the ITI all over the Gujarat and each institution has its own merits/percentage criteria for admissions, which is very low as compared to Diploma Engineering. The merit for admission in diploma engineering for the year 20062007 is also annexed to the reply. According to the Page 3 of 9 C/LPA/1876/2007 JUDGMENT respondents, ITI candidate is limited/restricted with only a particular subject such as; ITI with wireman, ITI with electrical; ITI with armature motor rewinding; while an electrical diploma is itself qualified for all trades and, hence, in the advertisement if a fitter, turner, machinist or a general mechanic is required then only one diploma with mechanical or diploma production engineer will be eligible for all the mechanical trades while ITI candidate cannot be eligible as he will be restricted only for his particular trade such as only for fitter, turner, machinist and general mechanic. According to the respondents, the spectrum for diploma engineer is broader compared to the spectrum for ITI pass candidate. A diploma holder is having a very wide range and can be adjusted/compensated in any of the trades whenever is required. In the advertisement, the groups for which the candidate is required are elaborately described in Columns 1, 4, 8 and 10, which are quoted as under:
Trade Diploma Engineer ITI
1. Fitter, Turner, Diploma in ITI Fitter, ITI
Machinist, General Mechanical or Turner, IT
Mechanic Production Engineer Machinist, ITI
General Mechanic
4. Electrician, Diploma in Electrical ITI Electrician, ITI
Wireman, Amateur Engineer Wireman, ITI
Motor Rewidner Amateur Motor
Rewinder
Page 4 of 9
C/LPA/1876/2007 JUDGMENT
8. Mechanic Diploma in ITI Mechanic
Autoelectronic, Two Automobile Engineer Autoelectronic, ITI wheeler Autorepair, Only Two Wheeler, Drivercum Autorepair, ITI Mechanic Driver cum Mechanic
10. Cutting & Sewing, Diploma in costume ITI Cutting & Embroidery & Needle designing & dress Sewing, ITI work, dress making, making only / Embroidery & computer aided computer aided needle & needle dress making and costume design and work, ITI dress dress design, men's dress making making, ITI and women garment computer aided making, apparel dress making and dress design, ITI men's and women garment making, ITI apparel
5. Learned Assistant Government Pleader Ms.Sandhya Natani also pointed out that similar matter had been filed earlier before this Court challenging the same Government Resolution/Formula, which was rejected by this Court vide order dated 19th April 2002. In the reply, the answer given to the question raised by the petitioners that what is the meaning of ýSQýý and why ýSQýý is applying in the case of the diploma holder candidates, is that ýSQýý is nothing but selection for balancing the meritorious candidates. The respondents have clarified that the syllabus of the diploma holder candidate is certainly higher as compared to the ITI candidates/present petitioners. The learned Single Judge has observed in order dated 19th April 2002 that the formula worked out by the authority is just and fair, preference should be given for higher qualification and some additional weightage is to be given to the higher Page 5 of 9 C/LPA/1876/2007 JUDGMENT candidates. Learned Assistant Government Pleader Ms.Natani particularly pointed out that merely a weightage is given to the higher qualified person, which would not automatically entitled the said candidates to be selected to the post in question and to be appointed. The decision of the learned Single Judge is annexed to this reply by the respondents. Learned Assistant Government Pleader Ms.Natani also submitted that ITI is limited and restricted to only one trade while diploma holder is having a broad spectrum/range and qualification level is also much more higher than the ITI Candidates. Therefore, some preference is required to be given to the diploma holder according to the Recruitment Rules and the Policy. Learned Assistant Government Pleader Ms.Sandhya Natani submitted that there is no arbitrariness or discrimination between the petitioners and the diploma holders.
6. In Special Civil Application No.11944 of 2001 and allied matters, this Court examined the same policy. Though the policy was not challenged before the learned Single Judge by those petitioners, the calculation of giving marks including the weightage to the diploma holder has been examined by this Court in order dated 19th April 2002 and 4th May 2002. In the said decision, this Court in detail examined merits and observed in paragraphs 3, 6 and 7 as under:
"3. The petitioners are the persons who possess the qualifications for appointment to the post of Craft Instructor in Industrial Training Institute (ITI) run and managed by the State Government. In addition to the requisite qualification, the petitioners also possess the preferential qualification of Advanced Training Institute (ATI)/Central Training Institute (CTI). The petitioners, therefore, claim that having regard to the preferential qualification possessed by them they ought to be given priority in the matter of selection for appointment to the post of Craft Instructor. However, the selection has been made in contravention of the relevant rules. The candidates who do not possess the preferential qualification are selected while the petitioners who possess such qualification are not selected. This point, however, has not Page 6 of 9 C/LPA/1876/2007 JUDGMENT been pressed at the time of hearing, advisedly so. The issue has been considered by me in the matter of PATEL NIKUNJKUMAR MAVJIBHAI v. DIRECTOR OF EMPLOYMENT AND TRAINING (Special Civil Application No.6623/01 decided on 21st March, 2002). The priority claimed by similarly situated candidates has been negatived. Considering the relevant recruitment rules and provision made regarding preference to be given to the candidates possessing the above referred preferential qualification I have held that, "the language of the above proviso is clear and unambiguous. It should necessarily mean that other things being equal the candidates possessing the additional qualification of certificate of Central Training Institute or the diploma shall be preferred. The said proviso can not be construed to mean that so long as the candidates possessing the additional qualification referred to in the aforesaid proviso are available, other candidates though are otherwise eligible should not be considered for selection. The claim of priority made by the petitioners, therefore, requires to be rejected.
6. There is a basic fallacy in the submission of Mr.Oza. Mr.Oza has vehemently argued that the petitioners were subjected to a written test and an oral interview. Having done so the merits of the petitioners acquired at such written test and the oral interview have not been considered. In fact, neither of the petitioners nor any other candidate has been subjected to written test. On the contrary, an averment is made in the petition that though the petitioners were called for interview, in fact the petitioners were not interviewed i.e. No questions were put to the petitioners but their marksheets and other certificates were verified. Upon inquiry, the petitioners had learnt that the interviews were mere formality and the appointments were to be given on the basis of the merit alone. Hence, it is apparent that even at the time of petition, the petitioners were aware that the merit alone was the criterion for selection. The submission, therefore, does not hold water and requires to be rejected. As regards the wider exposure it cannot be gainsaid that a public advertisement would offer opportunity to a larger number Page 7 of 9 C/LPA/1876/2007 JUDGMENT of candidates. However, the selection can not be said to be bad or be set aside only on the ground that the public advertisement was not given and the names of the eligible candidates were requisitioned from the Employment Exchange Office.
7. On the above facts, the judgments relied upon by Mr.Oza shall have no applicability. The said judgments deal with a situation where the selection were made in accordance with the existing recruitment rules. However, subsequent amendment to the rules rendered the selected candidates ineligible and such candidates were nonsuited on the ground of their ineligibility under the amended/revised rules. Here is not the case where the petitioners are nonsuited on the ground of their eligibility. Here is the case where the petitioners have not been selected on the basis on their comparative merits. Further, on perusal of the above referred Government Resolution dated 13th September, 2001, it appears that the formula worked out takes into consideration the additional / preferential qualification possess by the petitioners and such other candidates i.e. the candidates have been given marking for their basic qualification and also additional marks for the preferential qualification or higher qualification. Thus, the formula worked out by the respondent authorities also appears to be just and gives a fair consideration to the candidates having preferential qualification also. The judgment of the Hon'ble Supreme Court in the matter of SECRETARY (HEALTH) DEPARTMENT OF HEALTH AND F.W. (supra), the Hon'ble Court had an occasion to consider a similar matter. In the said matter, the Public Service Commission had issued advertisement for appointment to the post of Dental Officers. In the advertisement, it was clearly stipulated that the minimum qualification for the post was B.D.S. It was also stipulated that preference should be given for higher dental qualification. There was no dispute that M.D.S. is a higher qualification than the minimum qualification required for the post. The selection of Dental Officers made pursuant to the said advertisement was challenged on the ground that the writ petitioner who had the qualification of Page 8 of 9 C/LPA/1876/2007 JUDGMENT M.D.S. was entitled to be selected on the basis of higher qualification. The claim was negatived by the Hon'ble Court. The Hon'ble Court held that, "the question then arises is whether a person holding a M.D.S. qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage is to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed."
3. The view taken by the learned single Judge was upheld by the earlier Division Bench. We are in complete agreement with the impugned judgment passed by the learned single Judge and find no reasons to entertain this group of appeals.
4. Consequently, the appeals stand rejected.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) Pravin Page 9 of 9