Jammu & Kashmir High Court
Surjeet Phounsa vs J&K; Ssb And Others on 30 November, 2018
Equivalent citations: AIRONLINE 2018 J AND K 612
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
...
SWP No. 1003/2016 IA No. 01/2018 Date of order: 30.11.2018 Surjeet Phounsa Vs. J&K SSB and others Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge Appearance:
For petitioner(s): Mr. Abhinav Sharma, Advocate For respondent(s): Mr. Amit Gupta, Dy.AG Whether approved for reporting? Yes/No
1. In terms of Advertisement Notification no.10 of 2013 dated 10.10.2013, issued by respondent No.1, applications were invited from eligible candidates, inter alia, for making selection against Two Posts of Vocational Instructors (Motor Mechanic Trade) under Open Merit Category in Divisional Cadre Jammu. As per the Advertisement Notification, the minimum qualification for the post was indicated as under:
"Matric with ITI/NTC in Motor Mechanic Trade. Preference will be given to those candidates who have passed ATI or CTI course in relevant trade."
2. Petitioner, possessing qualification of Three Years' Diploma in Automobile Engineering, submitted his application form for aforesaid post. The application of petitioner was accepted and he was permitted to sit in the written test. He qualified written test and was shortlisted for viva-voce. No other candidate other than petitioner could qualify the written test and therefore, petitioner SWP no.1003/2016 Page 1 of 12 IA no.01/2016 was the lone candidate shortlisted for viva-voce. He was summoned to appear for interview to be held in the office of Service Selection Board at Rail Head Complex on 23.04.2016. Petitioner, however, was found 'Not Eligible' by Interview Committee, as such, his candidature was rejected. Feeling aggrieved, petitioner is before this Court with his grievance as projected in this writ petition.
3. This Court vide Order dated 12.05.2016 permitted petitioner to sit in interview for the post in question, of course, on his own risk and responsibility. In compliance to direction passed by this Court on 12.05.2016, petitioner had been interviewed.
4. Respondents have filed their reply affidavit and the only stand taken is that petitioner was found to be ineligible by Interview Committee as he did not possess prescribed qualification.
5. Having heard learned counsel for parties and perused the record, it is necessary to first take note of minimum qualification provided for the post of Vocational Instructor (Motor Mechanic Trade). The qualification prescribed in the Rules for the post of Junior Instructor/ Allied Trade Instructor, which would govern recruitment of Vocational Instructor (Motor Mechanic Trade) in the Department of Technical Education, is in the following manner:
"Matric with ITI/NTC. Preference will be given to those candidates who have passed ATI/CTI course in relevant trade."
6. This exactly is the qualification indicated by the respondent-board in the Advertisement Notification. From the bare reading of the Rule reproduced hereinabove and qualification prescribed therein, it is clear that the qualification prescribed for the post in question is SWP no.1003/2016 Page 2 of 12 IA no.01/2016 the minimum qualification and nothing prevents the competent authority to prescribe the qualification higher than the minimum. The petitioner claims that he possesses Three Years' Diploma in Automobile Engineering, which is a qualification higher than the minimum prescribed for the post in the same faculty/trade. The pith and substance of the contention raised on behalf of the petitioner is that the acquisition of higher qualification of diploma in Automobile Engineering presupposes the acquisition of minimum qualification of ITI in the Motor Mechanic Trade prescribed in the Rules and notified in the Advertisement Notification. On the other hand, the plea urged on behalf of the respondent-board is that the Rule as well as the Advertisement Notification provides the prescribed qualification for the post and the Board being a selection body, cannot re-write the Rule and provide the qualification different from the one prescribed in the Rules and communicated to it by the appointing authority. It is also urged that the diploma is not a higher qualification in the same line of training as ITI and the qualification claimed as higher qualification must be natural progression of the lower qualification prescribed for the concerned post.
7. In view of the rival stand of the parties stated above, the only question that arises for determination in this petition is as follows:
"Whether the qualification of Diploma in Automobile Engineering is higher qualification in the same line of training as ITI/NTC in Motor Mechanic Trade, therefore, the possession of degree/diploma qualification in Automobile Engineering presupposed the acquisition of ITI/NTC qualification in Motor Mechanic Trade?"
8. If the answer to this question is in the affirmative, the petitioner succeeds and direction needs to be issued to the respondents to SWP no.1003/2016 Page 3 of 12 IA no.01/2016 select and appoint him. The negative answer to the question would, however, entail dismissal of the writ petition straightway.
9. As noted above, there is no dispute that the qualification prescribed in the Rules and incorporated in the Advertisement Notification for the post is the minimum prescribed qualification and a person to be eligible to be appointed as Vocational Instructor (Motor Mechanic Trade) ought to possess the qualification of Matric with ITI/NTC in the Motor Mechanic Trade. Admittedly, the petitioner does not possess the aforesaid qualification. He, however, possesses the qualification of diploma in Automobile Engineering awarded to him by the State Board of Technical Education. Whether or not, the diploma in Automobile Engineering is in the same line of training as ITI/NTC in Motor Mechanic Trade, is ordinarily a question to be answered by the experts. It is for this reason only that this Court at the time of reserving this matter had specifically directed Mr. Gupta, learned Dy.AG, to provide the relevant record within one week. The matter was reserved on 09.10.2018. Though the record pertaining to selection to the post of Vocational Instructor was to be produced, yet the record (file), comprising writ petition and Reply filed by respondents, has been produced, which is of no use.
10. Be that as it may, in absence of the relevant record, this Court has endeavoured to solve the conundrum posed in this petition. Unfortunately, the petitioner has only placed on record the Syllabus for the Trade of Mechanic Motor Vehicle but has not placed on record the Syllabus for Three Years Diploma Course in Automobile Engineering. Had both the Syllabi been on record, it would have been easier for this Court to compare the truth and to find as to whether the diploma in Automobile Engineering is SWP no.1003/2016 Page 4 of 12 IA no.01/2016 higher qualification in the same line of training as ITI in the trade of the Mechanic Motor Vehicle. In the absence of proper assistance from the parties, particularly respondents, this Court has acquired the syllabus of three years Diploma in Automobile Engineering for State Board Technical Education.
If we look to the Syllabus of Mechanic Motor Vehicle under Craftsmen Training Scheme (CTS) it is seen that duration of the course is two years. After completion of the said ITI course, the trainee shall be able to perform the skills in Mechanic, Automobile repairs overhauls and services of motor vehicles to keep them in good running condition; he can examine vehicles to ascertain nature and location of defects either by running engine or driving vehicle on road; he can dismantle partially or completely defective unit or parts of vehicle such as engine, gear box, rear axle, front axle, steering assembly, radiator, etc., according to nature of repairs to be done, using hoist, jack, pullers, hand tools and other devices; he can measure essential parts like cylinder, bores piston, sizes crank pins etc., using gauges, micrometre and other precision tools; he can repair or overhaul and assemble engine, such as replacing defective parts, scrapping bearings, setting timing, cleaning injectors, tuning carburettor etc.; he can replace ore repair defective parts of gear box, rear axle, steering mechanism etc; he can reline and build brakes, set wheel assignment, adjust, steering, clutch, handbrakes etc.; he can lubricate, joint, tighten loose parts, test performance of vehicle by driving on road and make necessary adjustments to attain desired standard. ITI Trainee, on successful completion of the course, can either get employed as auto mechanic, vehicle service technician, auto fitter, mechanic, driver/vehicle operator, spare parts sales assistant, laboratory SWP no.1003/2016 Page 5 of 12 IA no.01/2016 assistant, auto electrician. ITI Trainee can also become a self- employed entrepreneur in automobile mechanic, diesel fuel system service mechanic, vehicle operator, spare parts salesman, spare parts dealer.
Insofar as Diploma in Automobile Engineering is concerned, it is Three Years' Programme. The Syllabus for Three Years' Diploma in Automobile Engineering, as is discernible from Curriculum/Information Brochure, is altogether different program of study. The subjects prescribed for undergoing Three Years Diploma Programme are: English and Communication Skills; Applied Physics; Applied Chemistry; Applied Mathematics; Engineering Drawing; General Workshop Practice; Basics of Information Technology; Applied Mechanics; Elements of Mechanical Engineering; Elements of Electrical and Electronics Engineering; Automobile Engineering Drawing; Principles of Thermal Engineering; Auto Engines Iⅈ Automotive Materials; Computer Aided Drafting in Automobile Engineering; Auto Electrical and Electronic Equipment.
On successful completion of the Three Years Diploma in Automobile Engineering, the Diploma Holder can be a Supervisor in Automobile Industry, viz. Junior Engineer in Automobile Industry whereas, ITI Trainee can at the most a Mechanic or Fitter in a workshop. Diploma Holder can be Supervisor in State Transport Workshop/Service Department of Government as well as Private Sector and Garages. The Diploma Holder can also man the post of Junior Engineer/Sectional Officer in Government Departments, like PWD/Electricity Boards/ Railways/ Dockyards/ SWP no.1003/2016 Page 6 of 12 IA no.01/2016 Para Military Forces whereas ITI Trainee can man of Auto Electrician, Laboratory Assistant, Driver/Vehicle Operator.
Worth to be seen is that a Diploma Holder shall have competency profile and skills in communication interpersonal relations; reading and interpreting drawings pertaining to different components, sub-assemblies and assembly of automobile and related equipment; constructional details and working of an automobile; manufacture of automobile; designing simple components and mechanism of an automobile; managing inventory and waste in industry; skills in managing pollution control standards and safety standards. These competency profiles cannot be dreamt of by ITI Trainee.
11. Thus, from the above discourse it emerges that composition of Two Courses are substantially and materially different, though overlapping at some places is apparent. The ITI course, as it appears from its Syllabus, is skill-oriented and is aimed at producing a workman/worker, who can work with his own hands whereas Diploma in Automobile Engineering is not skill-oriented but is knowledge-oriented; unlike the ITI Trainee, it does not produce the skilled worker rather it imparts knowledge, which can be used to supervise the skilled workers (ITI Trainees). The Automobile Engineering is not for the purpose of equipping a person with the motor parts and its repairs but is largely associated with the design, dynamic and engineering aspects of the vehicle. In such situation, to say, that the qualification of Diploma in Automobile Engineering presupposes the acquisition of ITI/CTI qualification in Motor Vehicle Trade, would be illogical.
12. From the careful perusal of the recruitment rules, one would find that the diploma in Automobile Engineering is also not natural SWP no.1003/2016 Page 7 of 12 IA no.01/2016 progression of the lower qualification prescribed for the post of Vocational Instructor (Motor Mechanic Trade). It is also fairly conceded before this Court that a person, possessing ITI/CTI in Motor Mechanic Trade, does not have advantageous entry into three years diploma in Automobile Engineering, like a person, who has diploma in a particular branch of engineering and can have lateral entry in 04 years' degree course in Engineering in the said subject. Possessing a degree in automobile engineering can be said to be higher qualification in the same line of diploma in Automobile Engineering. A person, possessed of B.E./B.Tech in Automobile Engineering, can legitimately claim to possess three years diploma course in Automobile Engineering. In such situation, the ratio of the judgment of the Hon'ble Supreme Court in the case of Jyoti K.K. v. Kerla Public Service Commission would be attracted. (See- JT 2002 Supple (1) SC 85). Apparently, this is not the case in hand. Two qualifications are different and meant to cater two different job requirements. The facts of the case in hand are nearly identical to the facts of the case of P.M. Latha and another v. State of Kerala and others reported in (2003) 3 SCC 541, in which Hon'ble Supreme Court has held that to provide that for a particular post the source of recruitment should be from the candidates with TTC qualification (Teacher Training Certificate) or B.Ed qualification, is a matter of recruitment policy. The Hon'ble Supreme Court in paragraph no.10, held, thus:
"We find absolutely no force in the argument advanced by the respondents that B.Ed. qualification is a higher qualification than TTC and therefore, the B.Ed. candidates should be held to be eligible to compete for the post. On behalf of appellants, it is pointed out before us that Trained Teachers Certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed. degree, the training imparted is to teach students of classes above primary. B.Ed. degree holders, SWP no.1003/2016 Page 8 of 12 IA no.01/2016 therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed. qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for post of primary teachers as only TTC and not B.Ed. Whether B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates, for the present vacancies advertised, as eligible. The division bench in the impugned order upheld the decision of the single judge that in terms of the advertisement, B.Ed. candidates were not eligible to take up the selection and to be included in the rank list. We fail to understand that having thus upheld the decision of the learned single judge what was the justification for the division bench to refer to statutory recruitment Rules applicable to teachers in private primary schools, aided by the Government and the judgments rendered by the High Court in their cases, for reversing the judgment of the Single Judge and maintaining the Rank List including names of the B.Ed. candidates and their appointments on the basis of rules yet to be framed."
13. While delivering judgment in the case of P.M.Latha v. State of Kerala (supra), the Hon'ble Supreme Court also took into consideration the ratio of the judgment of Jyoti K. K. (supra) and made a distinction that in Jyoti K. K. (supra), higher qualification was obtained in the same faculty and that could be taken as higher qualification in the same line. Interpreting the relevant rules, the Hon'ble Supreme Court in the case of Jyoti K.K (supra) held that the qualification of degree course in civil engineering, presupposes the acquisition of diploma in civil engineering. The question, similar to the one that has arisen in this writ petition, fell for consideration of the Full Bench of the Kerala High Court in the case of A. Suma v. The Kerala Public Service Commission & others, 2011 (1) KLT I(FB). Unanimous decision authored by Justice Chelameswar, the then Chief Justice of Kerala High Court, was rendered by the Full Bench in which the Hon'ble Full Bench SWP no.1003/2016 Page 9 of 12 IA no.01/2016 of Kerala High Court dealt with a specific question which for facility of reference is reproduced hereunder:
"Whether the Public Service Commission can recognise a Masters Degree in any other branch as an equivalent qualification to the qualification prescribed under the above-mentioned rules."
14. The Full Bench ruled that Public Service Commission was incompetent to deal with the question of "equivalence" of educational or other qualifications prescribed by the statutory rules unless rules provide for recognition of the qualification other than prescribed qualification as equivalent to the qualification prescribed.
15. Yet in another case titled Sunil v. Public Service Commission, 2008 (3) KLT 384 (DB), the Division Bench of Kerala High Court, while dealing with the question whether holding of Diploma or Degree in Civil Engineering will presuppose acquisition of ITI Certificate in Surveyor's Trade, held that Degree/Diploma in Civil Engineering is not a prescribed or equivalent or alternate qualification and such qualification will not presuppose acquisition of ITI qualification in Surveyor's Trade.
16. In similar situation where qualification prescribed for the post of Oilman/Mazdoor was SLSA ITI certificate in electrician, wireman and mechanic diesel, it was held that Diploma obtained by candidates was not higher qualification and when ITI certificate was prescribed qualification in concerned trade, Diploma holders in Electrical and Electronics Engineering could not be treated at par with ITI Certificate in the trade of wireman and electrician. This was so held by the same High Court in the case of Abdul Salam v. Executive Engineer, 2011 (3) KLT 204.
SWP no.1003/2016 Page 10 of 12 IA no.01/201617.In view of aforesaid discussion, this Court is of considered view that Diploma in Automobile Engineering is not a higher qualification than ITI/CTI Trade Certificate, in the same trade nor a candidate, possessing diploma in Automobile Engineering can claim presupposition of acquiring minimum qualification of ITI/CTI in the Trade of Mechanic Motor Vehicle. The qualification of Diploma in Automobile Engineering, as is apparent from hierarchy of subordinate services of the ITI and Polytechnic Sector, is not the natural progression of lower qualification prescribed as the minimum qualification for the post of Vocational Instructor (Motor Mechanic Trade). The ratio of the judgment of Jyoti K.K (supra) is, thus, not attracted and the case in hand is governed by the law laid in the case of P. M. Latha (supra) a subsequent judgment by the Hon'ble Supreme Court and followed by several High Courts. [See also: State of Punjab and others v. Anita and others, (2015) 2 SCC 170].
18.That apart, there is another important aspect, which also cannot be lost sight of. The persons, possessing qualification of ITI/CTI in the trade of Mechanic Motor Vehicle, are only eligible for the post of Vocational Instructor (Motor Mechanic Trade) or Mechanic Motor Vehicle and cannot be appointed against the post of Engineers/Junior Engineers/Assistant Engineers in the Engineering Departments or even cannot be appointed as Demonstrators/ Drawing Instructors in the Polytechnic/ ITI Sector. These posts are earmarked for those candidates, possessing qualification of degree/ diploma in concerned branch(s) of engineering. If Diploma/Degree holders in Engineering Trade are also held entitled to apply for the posts, which are meant for ITI/CTI trade workers, then employment opportunities available to these skilled workers, SWP no.1003/2016 Page 11 of 12 IA no.01/2016 would be seriously jeopardised. Perhaps that alone could not have been the reason to declare petitioner ineligible for the post, but, the cumulative effect of the both, that is, the discussion on facts and law made above and the position taken note hereinabove, is that the Diploma in Automobile Engineering is not eligible to be appointed as Vocational Instructor (Motor Mechanic Trade), for the two qualifications, i.e. Diploma in Automobile Engineering and ITI Certificates, are different in quality and quantity and cater entirely different job requirements; one creates the supervisory engineers and the other skilled workers.
19.From the foregoing reasons, I find no merit in this petition. Accordingly, the same is dismissed along with connected IA(s).
20.Record be returned to learned counsel for respondents.
Jammu (Sanjeev Kumar) 30.11.2018 Judge Madan-PS
I pronounce this judgement in terms of Rule 138 (3) of J&K High Court Rules, 1999.
(Sanjay Kumar Gupta) Judge Jammu 30.11.2018 SWP no.1003/2016 Page 12 of 12 IA no.01/2016