Gujarat High Court
Anand Govind Pandya vs Municipal Corporation Of City Of Surat on 30 November, 2018
Equivalent citations: AIRONLINE 2018 GUJ 232
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/12710/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12710 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any No
order made thereunder ?
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ANAND GOVIND PANDYA
Versus
MUNICIPAL CORPORATION OF CITY OF SURAT
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Appearance:
MR PREMAL R JOSHI(1327) for the PETITIONER(s) No. 1
MR KI SHAH(766) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 30/11/2018
CAV JUDGMENT
By filing the present petition the petitioner prays for direction to consider the
educational qualification of Master of Engineering in Town Planning & Country Planning acquired by him which is contemplated for giving preference, and further seeks benefit of additional 10 marks on that Page 1 of 11 C/SCA/12710/2016 CAV JUDGMENT basis as provided for, for inclusion of his name/ candidature in the waiting list proposed to be prepared for filling up the post of Assistant Town Planner.
2. The petitioner holds Diploma in Civil Engineering passed the same in May, 2006 from the Technical Examination Board, Gujarat. He also completed his degree course in Engineering (Civil) from University of Mumbai in the month of December, 2010. The petitioner is appointed on the post of Planning Assistant, Class III, in the Town Planning and Valuation Department of the State since 08th December, 2014. In the month of May, 2015, the petitioner appeared in the examination of Masters of Engineering in the Branch of Town & Country Planning, conducted by the Gujarat Technological University, Ahmedabad.
3. Pursuant to public advertisement dated 14th May, 2015 inviting applications for the post of Assistant Town Planner, the petitioner applied in the open category by submitting his application form on 27th May, 2015. The advertisement in question stated about the eligibility criteria which was the qualification of B.E. (Civil) or Graduation Degree in Bachelor of Architecture from the recognised University. It was additionally mentioned that if the candidate has obtained from any recognised University or institution, the post graduate degree in City Planning, Regional Planning or Urban Design or Diploma, such candidate shall be given preference. In Page 2 of 11 C/SCA/12710/2016 CAV JUDGMENT addition to stating of his educational qualifications, it was mentioned by the petitioner in the application form that he had appeared in the examination of Masters of Engineering in the Branch of Town & Country Planing in the month of May.
3.1 While the advertisement was published mentioning the aforesaid eligibility criteria and further stating about giving of preference to the holder of the post graduation degree, after the selection process was completed, by Circular/order dated 08th June, 2017 the Staff Selection Committee of the respondent Corporation inter alia provided that candidates who cleared written test would be given 40% weightage in respect of B.E. (Civil) or Bachelor of Architecture qualification and further that in respect of the acquisition of post-graduation degree in City Planning or Regional Planning in respect of which the preference was contemplated in the advertisement, would carry 10% weightage for the purpose of preparing the wait list.
3.2 In the interregnum, the process of selection in its stages underwent, in which the petitioner participated. He received a call letter dated 211st June, 2016 to appear in the written examination scheduled to take place on 03rd July, 2016. In the said written test the petitioner appeared and secured highest marks by obtaining 84 marks out of 100 marks. The second highest marks secured by the next candidate was 74. The result of examination of Masters of Engineering in the Branch of Town & Page 3 of 11 C/SCA/12710/2016 CAV JUDGMENT Country Planning in which the petitioner appeared in May, 2015, came to be declared on 27th July, 2015 and the petitioner received provisional degree certificate on 30th July, 2015. By letter dated 17th August, 2015 the petitioner informed the respondent about he having cleared the examination of Masters of Engineering in the Branch of Town & Country Planning. The passing of this Masters Degree examination was before the date when the interviews were taken for the post in question.
4. Heard learned advocate Mr.Premal Joshi for the petitioner and learned advocate Ms.Sneha Shah for learned advocate Mr.K.I. Shah for the respondent Corporation.
4.1 It was submitted on behalf of the petitioner that the petitioner was holding requisite eligibility qualifications. It was further submitted that conditions of eligibility and the provision for preferential treatment, both were different. It was submitted that the petitioner fulfilled the eligibility, and that the petitioner had already appeared in the post-graduation examination at the time of advertisement, that before the interview, the post-graduation degree was possessed, which was a condition for giving a preference to the candidate. Learned advocate for the petitioner submitted that once the post-graduation degree was availed, preference ought to have been accorded to the petitioner in the appointment and the petitioner who had secured highest marks in the written examination, Page 4 of 11 C/SCA/12710/2016 CAV JUDGMENT became entitled to be appointed. It was submitted that amongst the candidates equally placed in terms of eligibility, the petitioner was the highest scorer in the written test and weightatge of preferential marks of 10% for post-graduate degree acquired by him would render him entitled for the appointment to the post.
4.2 The respondent filed affidavit to contest the petition. The main plank of submission was that the petitioner was not having the qualification of Master of Engineering in Town & Country Planning on the date of filing of application. It was contended that in order to be eligible, the petitioner was required to be possessing on the last date of applying which was 03rd June, 2015, the degree of B.E. (Civil) or Bachelor of Architecture and further needed to have obtained post-graduate degree in Engineering which would entitle him for preference. In other words, according to the respondent, since the petitioner did not possess the qualification or degree of Master of Engineering in Town & Country Planning at the time of making application, which he possessed only in July, 2015, he was liable to be considered ineligible and would not be entitled to preference of 10% weightage, giving of which was decided by the Staff Selection Committee at the conclusion of the selection process.
4.3 Learned advocate for the respondent pressed in to service a caravan of judgments to pinpoint the proposition that in any recruitment process the cut-
Page 5 of 11 C/SCA/12710/2016 CAV JUDGMENToff point for satisfying the eligibility criteria and eligibility condition is the submission of application. Decision of Supreme Court in State of Rajasthan v. Hitendra Kumar Bhatt [(1997) 6 SCC 574] was pressed into service, in which it was emphasised that cut-off date for completing the requirements relating to qualification could not be ignored. Also relied on was the decision in Ashok Kumar Sonkar v. Union of India [(2007) 4 SCC 54], wherein it was held that cut-off date for determination of eligibility is necessary to avoid any uncertainty. By referring to decision in Public Service Commission v. Arvind Singh Chauhan [(2009) 9 SCC 135] it was pointed out that in that case the candidate was not possessing the stipulated age limit on the cut-off date specified in the circular.
4.4 Yet another decision also of Supreme Court in Jenany J.R. v. S. Rajeevan [(2010) 5 SCC 798] was relied on to submit that crucial date on which the candidate should possess the requisite qualification at the time of "occurrence of vacancies" in that case. Since the appellant in that case possessed requisite educational qualification and not the respondent, appellant's appointment was unassailable, it was held. State of Uttar Pradesh v. Vijay Kumar Mishra [(2017) 11 SCC 521] was relied on to submit on the basis of observations in paragraph 6 thereof that when a set of eligibility qualifications are prescribed under the rules and the applicant who does not possess at the time of submission of application or by the cut-off date, if any, prescribed under the Page 6 of 11 C/SCA/12710/2016 CAV JUDGMENT rules or stated in the advertisement, is not eligible to be considered for such post.
4.5 It was thus emphasised that the petitioner could not be considered for the post in absence of he holding the necessary qualification for seeking priority or preference and the benefit of additional 10% marks. It was highlighted that on petitioner's own showing, he appeared in the Master of Engineering examination in May, 2015 and the result was available in July, 2016.
5. Renoticing the relevant facts, the eligibility criteria was contemplated in the advertisement also provided for was the preference. The graduation degree in B.E. (Civil) or Bachelor of Architecture was fixed to be the eligibility criteria. It was added that passing of Masters of Engineering in the Country Planning would be a preferential factor which would entitle a candidate to get preference at the time of appointment. The respondents were aware that the petitioner had already appeared in May, 2015 in the said Masters Degree examination. By the time the interviews became due and the juncture of selection was reached, the result of petitioner's Masters of Engineering was declared and the petitioner had obtained the said degree. Having obtained the said preferential requirement, amongst the class of candidates who were equally placed in terms of meeting with the eligibility criteria, the petitioner stood first amongst the equals.
Page 7 of 11 C/SCA/12710/2016 CAV JUDGMENT5.1 In treating the petitioner to be ineligible to the appointment on the ground that the petitioner did not have the Master of Engineering degree at the time of making application, the respondents mixed up the facts and aspects which, by their very nature, segregable as distinct. Firstly, there is no gainsaying that the degree of Master of Engineering mentioned in the advertisement along with the eligibility clause was a condition of preference. The provision for giving preference on the basis of acquisition of the said master degree was equated with the eligibility criteria necessary for getting appointment to the post of Assistant Town Planner.
5.2 Once it was not part of the eligibility criteria and once it was in the nature of preferential conditions, the insistence on part of the respondents that such preferential qualification was needed to be possessed at the time of making application was erroneous. It was something which was to stand good for the purpose of and at the time of selection or appointment of the candidate. After the process of recruitment was over, the Staff Selection Committee provided for giving weightage of 10 marks for holding the degree of post graduation. This weightage became due to the petitioner, the petitioner having possessed to his credit the masters degree before interviews and actual selection.
5.3 In the matters of appointment, eligibility and preference are two distinct concepts. "The eligibility" for appointment to a post encompasses a Page 8 of 11 C/SCA/12710/2016 CAV JUDGMENT concept in itself. Eligibility connotes fitness to be appointed. The expression "fit" or "fit to be appointed" goes with the eligibility. In Union of India v. Lt. Gen. Rajendra Singh Kadyan [(2000) 6 SCC 698] the Supreme Court observed that expression "fit" which has different shades of meaning, also mean "the person to be appointed shall be legally eligible" and "eligible" means "fit to be chosen".
5.4 On the other hand, preference is a right or privilege available to a candidate who is eligible to be appointed for the purpose of being actually selected. When a preference is contemplated to be applied for the purpose of appointment, it is a criteria to be applied outside the purview of eligibility. If priority or preference is accorded to a person or candidate who possesses the preferential qualification, given the other things equal, it would stand the touchstone of Article 14 and Article 16 of the Constitution. Preference is something based on additional qualification in addition to the conditions of eligibility. Preference is not to be confused with the eligibility.
5.5 The principle laid down in Pandya Jaswantray Kalyanbhai [2008 (2) GLH 321] which was a decision of Division Bench of this Court relied on by learned advocate for the petitioner, is also useful to be noticed. The court observed that in the matter of employment in public service the words "priority" and "preference" carry the same meaning. It was further stated that it is usefully accepted principle that Page 9 of 11 C/SCA/12710/2016 CAV JUDGMENT wherever in case of employment the word "preference" is used, it would mean that other factors being equal, candidate meeting with criteria for giving preference shall have a preferential chance of employment.
5.6 In respect of appointment to a given post, a particular set of educational qualifications may have been provided as part of eligibility criteria for selection and appointment to the post. Satisfying these conditions of eligibility is one thing. As noticed above, preference or priority is often accorded on the basis of some additional qualification or on the basis of such other factors, prescribed or possessed by the candidate. One who holds such additional qualification by way of preference, would get a nod for appointment out of several other equals who though satisfied eligibility criteria, failed to possess the preferential qualification.
6. The degree in Master of Engineering in the Branch of Town & Country Planning mentioned to be the criteria for giving preference was not a condition of eligibility. The respondent Corporation fully misdirected itself for including the said preferential criteria in the set of eligibility prescription. The two belonged to different boxes. Once the criteria for giving preference was not the eligibility condition, the sole and whole defence of the respondent that the petitioner did not possess the requisite eligibility or requisite qualification Page 10 of 11 C/SCA/12710/2016 CAV JUDGMENT on the date of application, would fall flat as wholly misconceived. Such stand was rendered irrelevant.
7. For the foregoing discussion and reasons, the respondent - Municipal Corporation is directed to consider the petitioner's candidature to be in the zone of consideration for filling up the post of Assistant Town Planner in the open category and include his name for the purpose of appointment. The petitioner's educational qualification of Master of Engineering in Town and Country Planning shall be considered by the respondents and the petitioner shall be given benefit of additional marks on that basis. It was stated at the bar that the appointments are made subject to outcome of the present petition. Accordingly, the consequences would follow.
Petition is allowed accordingly.
(N.V.ANJARIA, J) FURTHER ORDER At this stage, learned advocate for the respondent Mr.Shah requests for stay of the aforesaid order.
In the facts and circumstances of the case and in view of what is held hereinabove, the request is not acceded to and stands rejected.
(N.V.ANJARIA, J) Anup Page 11 of 11