Allahabad High Court
Raj Kumar vs State Of U.P. And 3 Others on 11 April, 2018
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 15.03.2018 Delivered on 11.04.2018 Case :- WRIT - A No. - 2652 of 2016 Petitioner :- Raj Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddharth Khare,Sr. Advocate Counsel for Respondent :- C.S.C.,Ayank Mishra,Kapil Dev Singh Rathore Hon'ble Siddharth,J.
Heard Sri Siddharth Khare, learned Counsel for the petitioner and Sri Kapil Dev Singh Rathore, learned Counsel for the respondents.
This writ petition has been filed by the petitioner ,praying for quashing Regulation-17 of the Uttar Pradesh State Electricity Board Subordinate Electrical & Mechanical Engineering Service Regulation-1972, as inserted vide Office Memorandum dated 06.11.2008 and substituted by Office Memorandum dated 04.11.2011, in case this Hon'ble Court interprets Clause -b thereof as excluding the technical qualification possessed by the petitioner. Direction to the respondents to recalculate the aggregate marks secured by the petitioner in proceedings for promotion to the post of Junior Engineer undertaking in the year 2014, by awarding 30 marks to the petitioner on the basis of Trade Proficiency Certificate of the petitioner and to revise the result of the petitioner accordingly and to grant promotion to the petitioner w.e.f., Aug., 2015 on the post of Junior Engineer with all consequential benefits of seniority and arrears of salary has also been prayed.
The brief facts of the petition are that the petitioner was initially appointed as Electrical Fitter of Signals, a Class-III post, on 06.09.1985 and he retired from Indian Army on 01.10.2001. The petitioner applied under ex-serviceman category for the post of Technical Grade-II (Electrical) in response to an advertisement issued by the respondents in the year 2004. He annexed his discharge certificate from Indian Army, a Trade Proficiency Certificate which is equivalent to I.T.I. and also High School and Intermediate Mark sheet along with his application. He appeared in Written Examination and Interview successfully and was issued appointment letter dated 20.03.2006 for the post of Technician, Grade-II (Electrical) and he joined on 22.03.2006 at Electricity Distribution Sub Division-III, Machhali Shahar, District Jaunpur and was transferred to Allahabad in Sept. 2012 and is working at Electric Work Shop Division, Allahabad.
The service conditions of the petitioner are governed by Uttar Pradesh State Electricity Board Subordinate Electrical and Mechanical Engineering Service Regulation, 1972. The petitioner was considered for promotion to the post of Junior Engineer and he appeared for interview on 06.08.2015 at Lucknow. Out of 100 marks meant for promotion 25 marks were for High School, 10 marks for interview, 30 marks for I.T.I. or equivalent qualification and 35 marks were for length of service, wherein 1 mark for 1 year's service were to be allotted. When the results were declared the name of petitioner was not found in the select list. He sought information under the Right to Information Act, regarding the qualification required for appointment from Technical Grade II to Junior Engineer and why he was not granted promotion to the aforesaid post. No information was given to him and thereafter he filed First Appeal dated 06.5.2015 and then Complaint dated 03.11.2015 but in vain. However, he was orally informed that regarding the qualification of I.T.I. or equivalent, necessary for promotion, he was given zero marks because the Trade Proficiency Certificate dated 23.09.2001 is not equivalent to I.T.I. Hence the petitioner has approached this Court.
The respondents have filed their Counter Affidavit stating that as per Office Memorandum No.144, dated 04.11.2001, the qualification mentioned is I.T.I. Diploma/ Degree and not I.T.I. or equivalent qualification. The Trade Proficiency Certificate issued to the petitioner was on the basis of experience in service and not on the basis of marks granted in Technical Education. His name was forwarded for consideration by mistake in the promotion test. According to Parichalkiya Sewa Niyamawali, 1995, only the Certificate issued by Akhil Bhartiya/Rajya Vyavsayik is admissible, whereas the Trade Proficiency Certificate of the petitioner was issued by Corp of Signals.
The petitioner has filed Rejoinder Affidavit stating that the Trade Proficiency Certificate of the petitioner is not based on experience but it was issued on the basis of examination conducted by Technical Testing Board. He has brought on record the Certificate of Proficiency and Certificates of Grade-I, II and III on record. It has been stated that in the Certificates the equivalents Civil Trades are also mentioned. It is also mentioned that the Trade Proficiency Certificate is recognized by Government of India, Ministry of Labour (D.G.E.T.) and Government of India, Ministry of Personnel, Public Grievances and Pension. The petitioner has brought on record the advertisement on the basis of which he applied for appointment in the year 2004. In the aforesaid advertisement the qualification for Technician Grade-II ( Electrical) is shown as pass certificate with Science and Maths as subjects of High School from Uttar Pradesh Madhyamik Shiksha Parishad or equivalent examination and Certificate from Akhil Bhartiya Rajya Vyavasayik Praman Patra in Electrician Trade. The Amendment sought to be incorporated in Regulation- 17 (5) of 1972 Regulations through Office Memorandum dated 06.11.2008 and 04.11.2001 are beyond the power and authority of U.P. Power Corporation Limited and Chapter-4 and Chapter-6 of U.P. Electricity Reforms Transfer Scheme, 2000 does not gives any authority to amend the Regulations by Office Memorandum. Such amendments is Rules or Regulations become effective only after publication in the Official Gazette.
The petitioner has filed a Supplementary Affidavit bringing on record, a Certificate dated 02.08.2017, issued by Director General Resettlement, Ministry of Defence, Director of Training which demonstrate that the Trade Proficiency Certificate held by the petitioner is equivalent to I.T.I. The Certificate dated 02.08.2017 issued to the petitioner by the Director General Resettlement, Ministry of Defence Director of Training, New Delhi. National Council for Vocational Training has also certified accordingly.
A Supplementary Counter Affidavit has been filed by the respondent no.4 to the aforesaid Supplementary Affidavit stating that the Director General Resettlement, Ministry of Defence, Directorate of Training is not the competent authority to declare that the Trade Proficiency Certificate of the petitioner is equivalent to I.T.I. The aforesaid Certificate dated 02.08.2017 does not certify the essential qualification required for considering the promotion of the petitioner as per Rules. Since the petitioner does not hold the I.T.I. Certificate, his candidature for promotion has rightly been rejected.
The learned Counsel for the petitioner has made the following submissions,
1. Pursuance to an exercise undertaken for promotion on the post o Junior Engineer, the petitioner also applied whereas he was not granted 30 marks for qualification of I.T.I. or higher in terms of office memorandum dated 4.11.2011 (A-9/Page-61).
The petitioner has not been granted 30 marks in view of the fact that according to respondents the petitioner do not posses I.T.I. or higher qualification than the same whereas attention is also drawn to the seniority list enclosed as Annexure-6 with this writ petition wherein at serial no.1997 the name of the petitioner finds place and across the same I.T.I. has been mentioned. Even the advertisement pursuance to which the petitioner was granted appointment as Technician Grade-II required only I.T.I. certificate alone ( Annexure-2 with the Rejoinder Affidavit) whereas the petitioner had a Trade Proficiency Certificate which is higher than I.T.I. and in accordance with the same he was granted appointment.
2. The petitioner also relies upon a certificate issued by Principal, I.T.I. enclosed as Annexure-16 with the writ petition demonstrating that the same is a higher qualification than I.T.I.
3. Service conditions of the petitioner is governed by the U.P. State Electricity Board Subordinate Electrical and Mechanical Engineering Service Regulations, 1972 (Annexure-5 with the writ petition) Regulation 17 of the aforesaid 1972 Regulations would demonstrate that the qualification for promotion possess by the petitioner falls in one of the alternatives mentioned therein whereas the respondents sought to amend the same by means of office memorandum issued from time to time and the last being office memorandum dated 04.11.2011 on the basis of which they insisted on a requirement of I.T.I. certificate.
It is stated that Regulations can not be amended by means of any office memorandum, attention in this regard is drawn to a judgment enclosed as Annexure-17 with the writ petition with regard to the respondent department itself wherein it is held that Regulations can not be amended through office memorandum.
4. That even for the purposes of argument it is considered that office memorandum can amend a Regulation even than such office memorandum has to be notified in the official gazette whereas no such exercise has taken place and hence the Regulation 17 of 1972 Regulations is still operative and binding on the respondent authorities, attention in this regard to drawn to an interim order dated 10.10.2017 passed in Writ Petition No.47128/2017. A copy of which has already been supplied.
5. In the counter affidavit the respondents have stated that the Trade Proficiency Certificate has been issued to the petitioner without holding any examination whereas the same is specifically denied in the rejoinder affidavit and copy of the Certificate of Technical Proficiency has been enclosed with the rejoinder affidavit, a perusal of which would demonstrate that the same was issued to the petitioner after undergoing an examination.
6. A perusal of paragraph 7 of the rejoinder affidavit would demonstrate that it is specifically stated that the Trade Proficiency Certificate is recognized by D.G.E.T. a body which is recognizes I.T.I. as well. For the reasons mentioned above this writ petition is liable to get allowed with cost.
The learned Counsel for the petitioner has relied upon the Judgment of this Court in Writ(S/S) No.2386 of 1994, Vidyut Parishad Vs U.P.S.E.C., wherein this Court held that the Office Memorandum can not amend Regulations and can not get the status of Regulation and all actions taken on the basis of Office Memorandum are illegal and can not be upheld. The relevant observations are as follows:
"Legal position is setteled that the regulation made under the power of a statute can not be superseded by an office Memorandum. The respondents had an opportunity to amend the regulations of 1970 but even after lapse of such a long time that has not been done. Accordingly, the Office Memorandum dated 02.03.1988 cannot be given the status of regulation. Therefore, they cannot override the provisions of Regulation 1970. The Office Memorandum dated 01.11.1993 which is Annexure 15 to the writ petition, has been issued in suppression of the Office Memorandum dated 2.3.1988. When the Office Memorandum dated 2.3.1988 can not be given the status of Regulation and then all actions taken in compliance of the Office Memorandum dated 2.3.1988 can not be upheld.
It is, therefore, held that the Office Memorandum dated 02.03.1988 which is against the provisions of Regulations of 1970, and which has also not been given the shape of regulation by making amendment in the regulations, can not be sustained.
For the facts and circumstances mentioned above, the writ petition is allowed and the Office Memorandum dated 02.03.1988, 04.07.1988 and 01.11.1993 contained in Annexures, 7, 13 and 15 to the writ petition, are quashed. Consequences may follow.
The learned Counsel for the respondent has made the following submission, The petitioner lacks requisite qualification due to which he has not been awarded marks in the interview and has been rightly denied promotion. As per the amended Regulation 17 of the Regulation 1972 vide office memorandum dated 04.11.2011 (Annexure No.9 to the writ petition). The prescribed requisite qualification is I.T.I. or higher qualification, i.e., Degree or Diploma, for which 30 marks is awarded in the interview. Thus, the marks is awarded if the aspirant either holds I.T. I. Certificate or higher technical qualification, i.e., Degree or Diploma. Since, the petitioner do not fulfill either of the aforesaid prescribed qualification, therefore, he has not been awarded any marks against the technical qualification. Further, the Regulation do not require/prescribe any equivalent qualification for considering the candidature for promotion on the post of Junior Engineer from Technical Grade-(II). The petitioner has no legal right to claim promotion on the basis of his qualification, at the most he can claim consideration of his candidature, which has been done in view of the applicable regulations, on the contrary, it is the exclusive domain/ prerogative of the answering corporation to prescribe qualification for appointment on the post commensurate to the requirement of the post and which best suits the interest and efficient working of the respondent corporation. The employer/ the respondent corporation at any time can alter, amend or incorporate new conditions of service for its employees.
In support of the aforesaid submission, reliance is being placed on the Apex Court's Judgment, Union of India Vs. Pushpa Rani and others, 2008 (9) SCC 242, (Para-37), which is quoted below.
The judgment in Indra Sawhney's case led to seventy-seventh amendment of the Constitution. The Statement of Objects and Reasons incorporated in the bill introduced, which led to the passing of Constitution (Seventy-seventh Amendment) Act, 1995 reads as under:-
"Statement of Objects and Reasons.- The Scheduled Castes and the Scheduled Tribes have been enjoying the facility of reservation in promotion since 1955. The Supreme Court in its judgment dated 16.11.1992 in the case of Indra Sawhney vs. Union of India [1992 Supp. (3) SC 217], however, observed that reservation of appointments or posts under Article 16(4) of the Constitution is confined to initial appointment and cannot extend to reservation in the matter of promotion. This ruling of the Supreme Court will adversely affect the interests of the Scheduled Castes and the Scheduled Tribes. Since the representation of the Scheduled Castes and the Scheduled Tribes in services in the States has not reached the required level, it is necessary to continue the existing dispensation of providing reservation in promotion in the case of the Scheduled Castes and the Scheduled Tribes. In view of the commitment of the Government to protect the interests of the Scheduled Castes and the Scheduled Tribes, the Government has decided to continue the existing policy of reservation in promotion for the Scheduled Castes and the Scheduled Tribes. To carry this out, it is necessary to amend Article 16 of the Constitution by inserting a new clause (4-A) in the said article to provide for reservation in promotion for the Scheduled Castes and the Scheduled Tribes."
Clause (4-A) which was inserted by the aforesaid amendment reads as under:-
"Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State."
2. The petitioner is claiming promotion on the basis of the Trade Proficiency Certificate issued by Corp of Signals. The Trade Proficiency Certificate of the petitioner is not an I.T.I. Certificate duly issued by National Council For Vocational Training (N.C.V.T.) under the Control of Director General, Employment and Training, Ministry of Labour, New Delhi, which is prerequisite qualification for claiming promotion on the post of Junior Engineer. It is further submitted that the Trade Proficiency Certificate issued to the petitioner by the Corp of Signals as well the authority/orders upon which the certificate has been issued to the petitioner only shows that the experience gained by the petitioner by working in the Army is equivalent to civil trades, but there, is no basis/ any order from the competent authority, i.e., D.G.E.T. to show that the Trade Proficiency Certificate of the petitioner is equivalent to I.T.I. or equivalent to degree or diploma. It is further submitted that the Trade Proficiency Certificate has been issued to the petitioner on the basis of the Letter No.15012/8/82 dated 12th Feb., 1986 issued by Department of Personnel and Training, Government of India. The aforesaid letter/notification dated 12th Feburary, 1986 is an amendment in the Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules, 1950. The aforesaid notification dated 12th February, 1986 shows that the Trade Proficiency Certificate cannot be relied upon for granting employment to the ex-servicemen where the prerequisite qualification is technical in nature.
In view of the above, the Trade Proficiency Certificate possessed by the petitioner cannot be treated as I.T.I. Certificate for granting promotion on the post of Junior Engineer. The Trade Proficiency Certificate of the petitioner has been issued to him only on the basis of the work experience in the Army. The aforesaid certificate has not been awarded to the petitioner by the National Council for Vocational Training after clearing All India Level Trade Test duly conducted by the National Council for Vocational Training.
In support of the submission, the answering respondent is placing reliance on the Judicial pronouncements of the Hon'ble Courts, which are mentioned hereunder:-
(a). Ferbin Lazar vs. Cochin University of Science and others (High Court of Kerala, W.P. (C) No.15693 of 2010, D.O.D.-12.08.2010 (Page 2 Para 2), which is quoted below, "2. As already noticed hereinbefore, the qualification prescribed as per Ext.R1(a) notification for the post of Technician-I was ITI Instrument Mechanic with three years experience in Repair & Maintenance of Instruments. Admittedly, the petitioner did not possess the said qualification. To prove his qualification for selection to the said post the petitioner had produced Ext.P1 Certificate issued by the Indian Army. It is a proficiency certificate. It would reveal that the petitioner had served the Indian Army for 16 years. The Note incorporated thereunder is relevant and the same reads thus:
"The terms of Government of India Ministry of personnel public Grievances and pension (Department of personnel & Training) letter No. 1502/8/8/82/Est(D) dated 12 Feb 86 an ex-servicemen who has put in 15 years service in the Armed Forces and having Matriculation may be considered eligible for appointment to the posts for which the essential qualification prescribed is 'GRADUATION' Ext.P2 is a Graduate Certificate issued by the Indian Army on 31.10.2000. It is certified thereunder as follows:-
"In view of the above concession, Service Number 14573711 F Rank Ex HAV Name & Initial Ferdin Lazar M Trade Inst Mech who had served in the Indian Army for 16 years from 28 October 1984 to 31 Oct 2000 may be considered educationally qualified for reserved Group 'C' posts where the prescribed qualification is Graduation." A perusal of Exts.P1 and P2 would thus reveal as per the former the petitioner could be considered eligible for WPC.15693/2010 : 3 : appointment to any reserved vacancy to the posts for which the essential qualification prescribed is 'Graduation' and that as per the letter the petitioner could considered educationally qualified for reserved Group 'C' posts where the prescribed qualification is Graduation. A bare perusal of Ext.R1(a) would reveal that the qualification prescribed therein was not 'Graduation' whilst the qualification prescribed was definitely a technical qualification.
(b). Ashok Singh Vs. State of Rajasthan, Civl Misc. Writ Petition No.1029 of 2011 (Para 9, 10 and 11), "9. Neither reliance by the counsel for the petitioner on the amendment notification dated 12-2-1986 nor on the instructions issued by the Director General Employment Exchange as a guide for equating trade certification issued by the Army Authorities with posts in the Civil Sector nor, for that matter, the circular dated 27-1-2012 on equation of service trade/civil trade issued by the Ministry of Defence Government of India based on the equation of the Director General of Employment and Training, Ministry of Labour and Employment is of any avail to the petitioner's case.
10. I am of the considered view that the amendment to the Rules of 1979 by notification dated 12-2-1986 nowhere equates the petitioner's trade certificate as a Mechanical Motor Vehicle Class-I with a three year diploma in Mechanical/Automobile Engineering. The notification does indeed vest discretion in the competent authority under the Rules of 1979 to resort to lower standard/s for recruitment of the Ex-servicemen to vacancies on a post in the reserved quota, not filled up, however consonant with capacity of the candidate so selected, to discharge the job in issue to requisite levels of performance. Such discretion however does not vest under the Rules of 1963 nor has it being so argued by counsel for the petitioner. Recruitment to the post of Motor Vehicle Sub Inspector has to be made strictly within the eligibility parameters set out in the Rules of 1963. Reliance by counsel for the petitioner on the notification dated 12-2-1986 and resultant amendment to the Rules of 1979 is thus of no avail for this reason. As far as the instructions for use as guide to equivalence of army trades with certain Civil Trades issued by the Director General Employment Exchanges and reiterated subsequently by the Army authorities is concerned, a bare perusal thereof evidences that the Trade certification of MV Class-I issued to the petitioner on 30-9-2001 from the Corps of Electronics & Mechanical engineering EME Centre Secunderabad has been equated to the post of mechanical Foreman/mechanic of various kinds. It cannot be construed to constitute equivalence of the petitioner's MV Class-I certification with a three year diploma in Automobile/Mechanical Engineering. In the facts recorded above, the letter dated 2-6-2001 issued by the Director Sainik Kalyan Department stating that the petitioner's MV Class-I Trade Certificate issued on 30-9-2001 (NCO Code B 845.10) was equivalent to the three year Automobile/Mechanical Engineering diploma is obviously misdirected, not based on correct facts and palpably perverse. Hence also of no avail to the petitioner.
11. The inevitable conclusion which follows from the above discussion is that the petitioner does not have the requisite qualification of a three year diploma in Automobile/Mechanical Engineering from a recognized University/Board or another qualification recognized equivalent therewith by the Central or the State Government to be appointed as a Motor Vehicle Sub Inspector under the Rules of 1963. Consequently the petitioner was/is not entitled to such appointment. The cancellation of the petitioner's selection to the said post under the quota reserved for Ex-servicemen vide order dated 21-10-2011 therefore cannot be held to be illegal or arbitrary. The challenge thereto in this petition is hence without merit."
(c). Basic Education Board Vs. Upendra Rai, 2008 Law Suuit (SC) 1060 (Para No.15), "Grant of equivalence and /or revocation of equivalence is an administrative decision which is in the sole discretion of the concerned authority, and the Court has nothing to do with such matters. The matter of equivalence is decided by experts appointed by the government, and the Court does not have expertise in such matters. Hence it should exercise judicial restraint and not interfere in it."
3. The Trade Proficiency Certificate of the petitioner has not been approved by any competent authority as equivalent to I.T.I. There is no declaration to that effect from the competent authority, i.e. N.C.V.T. (National Council for Vocation Training) or D.G.E.T.(Director General Educational and Training, Ministry of Labour, New Delhi). Unless, there is declaration from the competent authority, the petitioner has no basis to claim that Trade Proficiency Certificate is equivalent to I.T.I. The answering respondent has filed Counter Affidavit to the Supplementary Affidavit of the petitioner. The answering respondent, in the aforesaid Counter Affidavit has taken specific plea to the effect that the competent authority has not issued any certificate to the effect that the petitioner is holding I.T.I. Certificate. The petitioner has not rebutted the averment of the answering respondent as no rejoinder affidavit has been filed by the petitioner.
4. That the respondent corporation is a company incorporated under the Companies Act, 1956. It is an autonomous corporate body and functions according to its Article of Association and Memorandum of Association. The terms and conditions of the employees of the corporation are governed by the aforesaid articles. The office memorandum or the rules and regulations issued by the State Government pertaining to government employees is only recommendatory and not binding upon the respondent corporation. It is only when the orders, rules, circulars, regulations issued by the State Government is adopted by the corporation by means of the Resolutions passed by the Board of Directors of the Company, the aforesaid rules etc. are applicable. Reliance is being placed upon Section 12, Section 13, Section 23(7) of the U.P. Electricity Reforms Act, 1999 and Clause-6(10) of the Transfer Scheme, 2000.
5. That with regard to the contention of the petitioner that the Regulation 1972, which is statutory regulation, can not be amended by an office memorandum, it is submitted that the aforesaid issue has been dealt and accordingly decided by the Division Bench of this Hon'ble Court in Rajiv Kumar Jahori Vs. State of U.P, 2007 (2) AWC 1726 (Para 32). The Division Bench of this Court in the aforesaid mater have opined that the erstwhile statutory regulation can be amended by an office memorandum, which is quoted below.
6. That it is further submitted that despite being unqualified the petitioner was allowed to participate in the interview, in which he remained unsuccessful. The petitioner is estopped from challenging the selection process.
7. That in the seniority list (Annexure-6 to the writ petition), across the name of the petitioner inadvertently I.T.I. qualification has been mentioned.
After hearing and considering the rival contentions the first issue required to be decided is whether the Regulation made by the erstwhile U.P.State Electricity Board can be superseded/amended by the office memorandum issued bythe U.P.Power Corporation Ltd.. The learned Counsel for the petitioner has referred to the Judgment in the case of Vidyut Parishad (supra), wherein the learned Single Judge has held that the Regulations can not be amended by office memorandum. The learned Counsel for the respondents has referred to the Division Bench Judgment in the case Rajiv Kumar Jauhari (supra), wherein the Division Bench of this Court has held that the U.P. Power Corporation is a Company and it is not statutory body which can frame regulations for governing the service condition of his employee. The company can determine terms and conditions of its employees as per Article of Association but since the Article of Association itself is neither a Rule nor Regulation and has no statutory force, therefore the conditions determined there under would also be non statutory.
Therefore, it is held that the amendment affected in Regulation-17 of the U.P. State Electricity Board Subordinate Electrical and Mechanical Engineering Service Regulation, 1972 by way of office memorandum dated 04.11.2011 can not be held to be illegal in view of the Division Bench Judgment of this Court in the case of Rajiv Kumar Jauhari (supra) and the judgment of the learned Single Judge in the case of Vidyut Parishad (supra), will not help the petitioner.
The Second issue required to be determined, in this case is whether the requirement in Clause-b of the office memorandum dated 04.11.2011, whereby Regulation-17 of the U.P. State Electricity Board Subordinate Electrical and Mechanical Engineering Service Regulation, 1972 has been amended and the qualification for the post of Junior Engineer has been prescribed as I.T.I./Higher Technical Qualification (Diploma/ Degree in place of I.T.I., shall include the Trade Proficiency Certificate issued to the petitioner as equivalent qualification to I.T.I., or higher qualification.
The learned Counsel for the petitioner has placed reliance upon paragraph no.29 to 33 of the writ petition, which is as follows:
"29. That with regard to the aforesaid amendment, it is relevant to state that the Trade Proficiency Certificate possessed by the petitioner falls under head of higher technical qualification. It is further relevant to state that I.T.I. qualification and Trade Proficiency Certificate both are a to years course.
30. That the Trade Proficiency Certificate is undertaken bythe Technical Testing Board in accordance with the provisions of Regulation of Soldiers 1958 by Indian Army.
31. That attention is drawn to a letter dated 7.09.2010 issued by respondent authorities addressed to the Technical Education Council enquiring with regard to the list of institution entitled to award diploma degree for engineering. A true copy of the letter dated 7.09.2010 is annexed herewith and marked as Annexure No.14 to this writ petition.
32. That pursuance to the aforesaid a letter dated 24.09.2010 was issued by Secretary department of Technical Education mentioning the list of recognized institutions entitled to award Engineering Degree amongst which apart from other institutions the military college at serial no.6 has been mentioned. It is the same military college from where the petitioner has obtained the Trade Proficiency Certificate. A true copy of the letter dated 24.09.2010 is annexed as Annexure No.15 to this writ petition.
33. That attention is further drawn to a certificate dated 1.1.2016 issued by the Principal I.T.I. Aliganj, Lucknow mentioning that Trade Proficiency Certificate is equivalent to I.T.I. A true copy of the certificate dated 11.1.2016 is annexed as Annexure No.16 to this writ petition. That to the best of the information of the petitioner there are still large number of vacancy required to be filled by promotion from the same exercise undertaken bythe respondent authorities, the petitioner should be considered for being promoted as Junior Engineer."
The respondents have replied to the aforesaid paragraphs of the writ petition in paragraph nos. 12 and 13 of their Counsel Affidavit as follows, "12. That the contents of paragraph nos. 28, 29, 30 and 31 of the writ petition need no reply. However, any averments contrary to records are denied.
13. That the contents of paragraph nos. 32, 33 and 34 of the writ petition as stated are not admitted hence denied. In reply it is submitted that according to the Parichalikiya Sewa Niyamavali, 1995 only the certificate issued by Akhil Bhartiya/ Rajya Vayasayik is admissible whereas the petitioner's certificate was issued by CORP OF SIGNALS for trade Proficiency Certificate which is issued according to the issued experience during his service period."
From above, it is clear that the respondents have not denied the Trade Proficiency Certificate possessed by the petitioner falls under the head of Higher Technical Qualification. The letter dated 24..09.2010 issued by the Secretary, Technical Education Board, U.P., in response to his letter dated 07.09.2010, seeking information about recognition of the Degree/ Diploma issued by different Institutions of the State and Central Government, clearly states that the Certificates issued by Military College- Ministry of Defence, DG Settlement, New Delhi are recognized and the petitioner claims to possess the Certificate issued by this Institution which has not been denied by the respondents. Further the letter of the Principal, issued by the Rajyakiya Audhyogic Prashikshan Sansthan, Aliganj, Lucknow also certifies that the Trade Proficiency Certificate issued to the petitioner by the Director General of Re-Settlement, New Delhi is higher than the qualification of I.T.I. because inspite of syllabus and training being same, the syllabus in Indian Army is higher in technical education, wherein, more emphasis is laid upon the practical subjects and activities. He has concluded that from the point of view of quality of training, the certificate issued by Indian Army is not only equivalent to I.T.I. but can be considered as higher to I.T.I. In view of the above certificate by the Principal of the I.T.I. Training Institute, Lucknow, the reliance on para 15 of the Judgment in the case of Basic Education Board (supra) by the Counsel for the respondents is of no consequence. In that case, there was no material before the Court in the form of expert opinion but in the present case, the opinion of the Secretary, Technical Education Board and the Principal of I.T.I. Training Institute, Lucknow is on record which has not been disputed by the respondents.
A perusal of Certificate dated 02.08.2017, issued by Director General Resettlement, Ministry of Defence, Director of Training demonstrates that the Trade Proficiency Certificate held by the petitioner is equivalent to I.T.I. The Certificate dated 02.08.2017 issued to the petitioner by the Director General Resettlement, Ministry of Defence Director of Training, New Delhi, which was filed along with a Supplementary Affidavit filed by the petitioner clearly shows that the Trade Proficiency Certificate of the petitioner is equivalent to the Certificate issued in Civil Trades of Electrician General, Electrical Fitter and related Electronic worker, Lineman, Light & Power, Technician Electrical Engineering and these are duly recognized by National Council for Vocational Training and Ministry of Labour. The Certificate dated 02.08.2017 of the Director General, Resettlement Ministry of Defence, New Delhi is as under:
1. It is hereby certified that Shri Raj Kumar, Ex-Naik No.14268073L is an Ex-serviceman and has served the Indian Army as a combatant for 16 years in the Corps of Signals.
, 2. His "trade" while in Army was " Electrical Fitter Signals".
3. Vide the authority vested by the Office Memorandum issued by the Joint Director Employment Exchange, Directorate General of Employment and Training Ministry of Labour and Employment (DGE&T) (Ref. OM No.DGE&T-5/1/07-VG/01 dated 26 Sept, 2012 and vide "Equation of Educational Qualifications" vide No.15012/8/82 Estt. (D) dated 12 Feb. 1986 of DOPT under the then Ministry of Personnel, Public Grievances and Pensions (now under PMO), respective Service HQ issue an "Equivalence Certificate" to the retiring personnel of the Services which shows the equivalences of Ministry Trade of the retiring personnel of the Services, which shows the equivalences of Ministry Trade of the retiring individual with Civilian Trades, as per the latest National Classification of Occupations (NCO) Codes which are current at that time (NCO Codes are duly recognized by Employment Exchanges and NCVT/Min of Labour & Tig).
4. The "Equivalence of Army Trade Certificate" bearing No.6240 issued by Army Depot Regiment (Corps of Signals) on 23 Sept. 2001 in respect of Ex-Naik. No. 14268073L Raj Kumar has been checked from the master copy of "Directory of Equation of Services Trades with Civil Trades and Guide to Registration of Defence Service Applicants for Employment" held at this Directorate General since Oct., 2012 and has been found to be correct as per the old NCO codes (valid at the time of discharge). The equivalences as per revised list of 2004 by Min of Labour & Employment are enumerated below as new Codes:
Sl.No. Civil Trade Equivalence New NCO Code Old NCO Code
1.
Electrician General 7137.10 851.10
2. Electrical Fitter and Related Electronic Worker 7241.20 859.90
3. Lineman Light and Power 7245.10 857.10
4. Technician Electrical Engg.
3113.10 032.10
5. It is also certified that the trade proficiency courses (Electrical Fitter Signals, Class-1) undergone by Ex-NK Raj Kumar while I Service in Oct. 1995 at EME Centre Bhopal was a duly authorized In-Service Course. The equivalences of civil are duly mentioned in his Deptt. Certificate No.6240.
6. Attention is invited to the Civil trade equivalences (duly recognized by NCVT & Ministry of Labour) o Electrician General, Electrical Fitter and Related Electronic Worker, Uneman Light and Power, Technician Electrical Engg in respect of NK Raj Kumar to his current Service with U.P. State Corporation Ltd., as Technician Grade-II (Electric)."
The reliance of the Counsel for the respondent on the Judgment in the case of Pushpa Rani (supra) relates to constitutional amendment for providing provision for reservation in matters of promotion on posts reserves for Schedule Castes and Schedule Tribes after the Judgment in the case of Indra Sawhani and in view of the fact that the power of amendment of Regulations of 1972 of the Board by office memorandum by the Power Corporation being upheld above, this case need not be considered any further. Regarding the case of Ferbin Lazar (supra), the Certificate of Graduation issued by the Army was produced by the Ex-servicemen for proving his qualification for the post of Technician-I, when there was requirement was I.T.I. Certificate and therefore the Court held that Graduation Certificate will not be equivalent to I.T.I. In the case of Ashok Singh (supra), relied upon by the respondents, the dispute was whether a Trade Proficiency Certificate issued by the Corps of Electronics & Mechanical Engineering, E.M.E. Centre, Secunderabad was equivalent to the Certificate of Mechanic Motor Vehicle Class-I Certificate which required a 3 years Diploma in Automobile/Mechanical Engineering. Hence the Court did not accept that the Trade Proficiency Certified issued by the Army can be construed as 3 years Diploma in Automobile/ Mechanical Engineering.
Therefore, the respondents have not been able to prove that the qualification of I.T.I. is not equivalent to the Trade Proficiency Certificate of the petitioner. The petitioner has established on the basis of unrebutted documents on record that both the certificates are equal and the certificate of the Principal, I.T.I., Lucknow dated 11.1.2016 proved beyond doubts that the Trade Proficiency Certificate issued by Army to the petitioner is higher than the qualification of I.T.I. Hence the petitioner is entitled to get the second and third reliefs prayed in the writ petition. The respondents are directed to recalculate the aggregate marks secured by the petitioner by awarding 30 marks to him on the basis of Trade Proficiency Certificate and consider granting him promotion on the post of Junior Engineer w.e.f., Aug., 2015 along with all consequential benefits of seniority and arrears of salary within 6 weeks from the date of presentation of the certified copy of this order before the respondent concerned.
The writ petition stands partly allowed. No order as to costs.
Order Date :- 11.04.2018 Ruchi Agrahari