Uttarakhand High Court
Hamid Ali vs State Of Uttarakhand Through Secretary on 5 January, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (S/S) No. 1546 of 2015
Hamid Ali ... Petitioner
Vs.
State of Uttarakhand through Secretary
Employment and Training and others ... Respondents
Advocates : Mr. Dinesh Gahatori, Advocate, for the petitioner.
Mr. P.C. Bisht, Addl. CSC, for the State
Hon'ble Sharad Kumar Sharma, J.
In pursuance to the advertisement, being Advertisement No. 1/104/2010, the applications were invited from the probable candidates to be considered for enabling the candidates to participate, for the selection process to be conducted by respondent No. 2, and there were number of categories of posts against which the applications were invited; they were 21 in number, but we would be more concerned with the post at serial number 6 i.e. Mechanic Motor Vehicle & Driving.
2. As against the total number of posts, which were advertised for the post of Mechanic Motor Vehicle and Driving, total 34 posts were shown to be vacant; 17 posts were available to be filled from amongst the general category candidates; for Scheduled Castes, it was 8 posts; for Scheduled Tribes, it was 2 posts and the posts with which we would be more concerned is that which was made available for the OBC category i.e. 7 candidates, who were required to be appointed, as against the aforesaid available vacancy of OBC category candidates.
3. In pursuance to the advertisement which was issued by the respondents it is an admitted case of the petitioner that he has responded to the advertisement and had voluntarily extended his candidature to be considered for recruitment, as against the 2 available post which was advertised at serial number 6 and his candidature which was extended was for availing the benefit of reservation provided to the OBC category candidate. Meaning thereby, the candidature of the petitioner was to be exclusively considered against the total seven vacancies, which were classified to be made available for OBC candidates who had responded to the advertisement.
4. In accordance with the advertisement, the qualification as it has been prescribed wherein, for the post lying from serial number 1 to 5, there are two major category of essential qualifications; one, 'a certificate holder', and second, 'the diploma holder'. It is not disputed that petitioner's candidature, which he had extended in pursuance to the advertisement was by virtue of holding a certificate; which according to him is to be treated as to be an essential qualification for consideration of his appointment as against the post given in clause 6 of the advertisement. Apart from the essential qualification prescribed therein for the post at serial number 1 to 15, there was a preferential qualification also, which has been prescribed under clause 2 of the advertisement. The preferential qualification was related to be extended to those persons, who were the diploma holders and the language used therein for the preferential qualification was that the preferential qualification would relate to the Diplomas; the details of which, had been given in the schedule of the advertisement, which is extracted hereunder:-
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5. In order to bring himself within the ambit and zone of consideration, based on the preferential qualification, which has been taken as to be an embargo for rejecting the candidature of 3 the petitioner, it has been argued by the learned counsel for the petitioner that though the petitioner was the applicant as a certificate holder, for the post of Mechanic Motor Vehicle & Driving, but the preferential qualification, which has been provided as per the schedule, he is trying to bifurcate in its interpretation to the qualification of diploma, provided in the schedule that 'Diploma in Automobile Engineering', he is trying to split the said expression of qualification into two parts. He interprets the use of word 'diploma' to relate to the essential qualification of the Diploma Holders though it is not as such. If the diploma which has been referred to in the schedule of qualification which has been treated as to be a preferential qualification for the other posts as given in the first column, in fact, diploma is a terminology, which has been commonly used in the different discipline of diplomas, which are required to be treated as a preferential qualification for the posts given in column 1 of the schedule of preferential qualification. Hence, as far as the Diploma in Automobile Engineering, relating to the post included in clause 6 of the advertisement, it would be read that "Diploma in Automobile Engineering".
6. This expression of qualification is a composite qualification and the word 'diploma', used herein cannot be permitted to be extracted by the petitioner, to be read as a qualification for the purposes of an applicant, who is diploma holders, because the subsequent part of the expression of qualification given in the preferential qualification, the possession of Diploma in Automobile Engineering, rather it has been made applicable in relation to all the applicants, who were the applicants against the post provided under clause 6, who are and were suppose to have the licence for driving the heavy vehicles. Thus, the exemption, which has been sought to be carved out by the petitioner, is not 4 available to him while giving an interpretation to the preferential qualification given in clause 2 of the advertisement which was inclusive of driving license for light and heavy vehicle. Thus Diploma in Automobile Engineering has to be read along with the valid license for light and heavy vehicle as to be qualification for the post. There was no exception from both the qualifications for the post.
7. The second argument, which has been extended by the learned counsel for the petitioner is that in accordance with the Rules, as made applicable for the post against which the petitioner has responded, the preferential qualification provided under clause 2 of the advertisement, is perhaps not one of the qualifications prescribed under Rules and thus the qualification of Diploma in Automobile Engineering and licence of Heavy Vehicle, may not be construed as to be a preferential qualification, because it runs contrary to the Rules itself.
8. This argument of the learned counsel for the petitioner is not acceptable by this Court, for the reason being that, if at all this was the version which could be accepted, it could have been only when the petitioner before applying, as against the post provided under clause 6 has put a challenge to the preferential qualification clause provided under clause 2 of the advertisement, i.e. before extending his candidature to the advertisement. Once the petitioner has applied against the advertisement, it would be deemed that he was conscious of the eligibility criteria and the qualification, which he was required to possess in order to make him eligible to be considered for appointment and as per the opinion of this Court, preferential qualification would be compositely read with Diploma in Automobile Engineering, as would be made equally applicable for all the applicants, who had 5 applied for category '6' posts, wherein two class of candidates are permitted to participate i.e. 'Certificate Holders' and 'Diploma Holders'.
9. The class of qualification of Certificate Holders and Diploma Holders, is in much contradistinctions as separate to the clause of preferential qualification, provided under clause 2 of the advertisement, which has been mandatory and made applicable that all the candidates, who are applying under clause 6 are supposed to have licences for driving the light and heavy vehicles and the petitioner had been held to be non suited on the culmination of the selection process because he was not having the qualification as prescribed under sub clause (gha) of schedule to clause 2 of the advertisement. In that eventuality, and in the light of the judgement of the Hon'ble Apex Court, as reported in 2008 (4) SCC 171, Dhananjay Malik and others Vs. State of Uttaranchal and others, wherein it has laid down that even if an administrative instruction or an action, which has taken as to be the foundation for the purposes of inviting the applications for recruitment in a selection process, if a person participates and responds to the advertisement and opens and extends his candidature to be considered in the selection process, then non- fulfilment of the educational qualification would be one of the basic criteria, which was to be considered qua the qualification which has been prescribed in the advertisement. A reference may be had to para 7 and 9 of the said judgement, which are extracted hereunder:-
"7. It is not disputed that the writ petitioners- respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the 6 advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
9. In a recent judgment in the case of Marripati Nagaraja vs. The Government of Andhra Pradesh, (2007) 11 SCR 506 at p.516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process."
10. A similar issue was considered by the Hon'ble Apex Court in yet another judgement reported in 2008 (4) SCC 619, Sadananda Halo and others Vs. Momtaz Ali Sheikh and others, which too was dealing with almost similar situation, that where the process of recruitment has been initiated and a person or a candidate voluntarily participates in the process, it would be deemed that he has submitted to the eligibility criteria which was provided in the advertisement and later on, on being an unsuccessful to be appointed on culmination of the selection process, he cannot be permitted to revert back and put a challenge to the advertisement and the conditions contained therein, by putting it to a challenge as a subject matter of judicial review after having being declared as unsuccessful and in these eventualities, the argument as extended by the learned counsel for the petitioner, that rejection of petitioner's candidature because of the implications of sub clause (gha) of sub clause (ka) of clause '2' of the advertisement is not at all arbitrary, because his candidature was rejected since petitioner was not holding the preferential qualification which was in addition to the basic qualification, as it was prescribed in the advertisement for the post provided under clause (gha), thus the petitioner's candidature has been rightly held to be non suited to be considered for appointment as against the post included in clause 6 of the post which were included in the advertisement against which the petitioner had responded.
711. The learned counsel for the petitioner had made reference to a judgement reported in AIR 2011 SC 3547, Alka Ojha, Vs. Rajasthan Public Service Commission and another. What he intends to argue is from the perspective of the observations which has been made in para 7 of the judgement, which was based upon the earlier judgement of the Hon'ble Apex Court as reported in 1994 (2) SCC 723, U.P. Public Service Commission U.P. Vs. Alpana, wherein it has been provided that if the statutory Rules prescribes a qualification the advertisement in itself cannot qualify or add or eliminate a qualification, which has been provided under the statutes, because statutory rules cannot be overridden by the terms and conditions of the advertisement.
12. This contention, based on the aforesaid principle, could had have been made applicable, had the petitioner put the advertisement itself under challenge before responding and applying to it having not done so and after having participated in the process of selection and thereafter having being held to be disqualified, as not holding the qualification as per the terms of the advertisement, now, at this stage, the petitioner cannot contend that the qualification provided under the advertisement was in contravention to the qualification which were prescribed under the Rules.
13. Hence, for the aforesaid reasons, rejection of the candidature of the petitioner for non inclusion of his name in the select list due to not holding the requisite qualification provided under sub clause (gha) of clause 2 of the advertisement, was absolutely justified, because the petitioner was not having the diploma in the discipline of engineering provided under sub clause (gha) of clause '2', he was rightly declared to be non-
8suited for recruitment. Consequently, the writ petition lacks merit and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.) 05.01.2022 Mahinder/