Indraj Singh S/O Shri Guljhari Lal vs State Of Rajasthan on 22 February, 2023

[Cites 46, Cited by 0]

Rajasthan High Court - Jaipur

Indraj Singh S/O Shri Guljhari Lal vs State Of Rajasthan on 22 February, 2023

1. All these writ petitions referred above involve common questions of law and fact and therefore, as agreed by learned counsel for parties, they have been heard together and are being decided by this common judgment. However, for the sake of convenience, facts as pleaded in SB Civil Writ Petition No.382/2022 have been noticed.

2. The relevant facts under which the spate of controversy in these writ petitions has arisen are that 197 vacant posts of Motor Vehicle Sub-Inspector (hereinafter for-short "MVSI") to be appointed in the Transport Department of the State of Rajasthan, have been notified vide advertisement No.06/2021 dated 24.11.2021 by the Rajasthan Staff Selection Board (hereinafter (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (7 of 71) [CW-382/2022] for-short "RSSB"). In the advertisement, it has been clearly indicated that such vacant posts are to be filled as per the scheme and procedure, prescribed under the Rajasthan Transport Subordinate Service Rules, 1963 (hereinafter for-short "the Rules of 1963") and as amended time to time. Soon after issuance of advertisement dated 24.11.2021, a corrigendum advertisement dated 09.12.2021 was published by the RSSB just to substitute earlier published qualification of "3 years Mechanical Engineering/ Automobile Engineering diploma or any qualification declared equivalent by the Central Government/ State Government" with the qualification of "diploma in Automobile Engineering (3 years course) Or diploma in Mechanical Engineering awarded by the State Board of Technical Examination (3 years Course) OR any qualification in either of the above disciplines declared equivalent by the Central Government or State Government." Soon after publication of amended advertisement dated 09.12.2021, CWP No.382/2022 came to be filed, but thereafter, an Office Order dated 15.12.2021 was issued by the RSSB and by this Order, it has been declared that candidates having higher educational qualification than the above notified qualification will also be able to apply online application forms for the post of MVSI. Immediately, an application to amend CWP No.382/2022, in order to assail the Office Order dated 15.12.2021 was moved and the same was allowed by the Court and therefore, amended writ petition has been filed, seeking to quash the office order dated 15.12.2021 issued by the RSSB. For ready reference, the impugned Office order dated 15.12.2021 is being reproduced hereunder:

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 [2023/RJJP/000733]                                     (8 of 71)                                         [CW-382/2022]




                                        "राजस्ान करर चारारी चयन ब बोरर

राजय ककषषि प्रब्रबंध स्रबंस्ान प परर सर, दुरार पुरा, जयपुर-302018, फ़ बोन-0141-2552796 क्ररा्रबंक:प.14(98)RSSB/अ्र ना/प परर.षि./र बो.िा.उप.षन./भर्/2021/1467 षदना्रबंक 15-12-2021

-कायार लय आददश:-

र बोटर िाहन उप षनरारीक्षक क की भर् हदरु ब बोरर ्ड दारा षदना्रबंक 24.11.2021 क बो षिजाषाप्ति जारारी क की रई है। राजस्ान परषिहन अधारीनस् सदिा षनयर-1963 य्ा स्रबंश बोषधर र्ा राजस्ान अनु सषू चर क्षदत्र अधारीनस् र्रबंत्रालषयक एि्रबं चरु्र शदर्थ श्रेणारी सदिा (भर् एि्रबं सदिा क की अनय शरश) षनयर, 2014 कद अनररर इ स पद क की शैक्षषर्थ श्रेणक य बोयोगयरा रय यह प्रािधान है षक:-

1. सटदट ब बोरर ऑफ टैकनारीकल एजुकदशन ्ड दारा प्रदत्त ऑट बोर बोबाईल अषभया्रबंषत्रक की (रारीन िषि्य पाठायकर) रय षरपल बोरा या या्रबंषत्रक अषभया्रबंषत्रक की (रारीन िषि्य पाठायक्रर) रय षरपल बोरा या उपयर ुक्त षिषियिषयों रय सद षक सारी एक रय ऐ सारी अहर राए्रबं, ज बो कदनद्र सरकार या राजय सरकार ्ड दारा इनकद सररुलय घ बोषषिर क की रई ह बो ।

उपर बोक्त षनधार पररर शैक्षषर्थ श्रेणक य बोयोगयरा कद स्रबंब्रबंध रय यह सपष्ट षकया जारा है षक उक्त िषर्थ श्रेणरर शैक्षषर्थ श्रेणक य बोयोगयरा सद उ उचचरर शैक्षषर्थ श्रेणक य बोयोगयरा रखनद िालद अवाले अभय्् भारी र बोटर िाहन उप षनरारीक्षक कद पद कद षलयद आिददन कर सकदरय ।"

(Emphasis Supplied)

3. After filing the amended writ petition on 18.02.2022, the Court issued notices and vide order dated 21.03.2022, directed respondents not to issue the appointment orders to selected candidates. Thereafter, candidates, who possess degree in automobile/mechanical engineering and participated in the recruitment process, moved applications for seeking their impleadment in the writ petition. Their applications for impleadment were allowed vide order dated 18.04.2022. During course of writ petition, the Court vide order dated 03.08.2022 directed the RSSB to refer the matter to the Department of Personnel (DOP) under Rule 36 of the Rules 1963 seeking the opinion on the point as to whether persons having higher educational qualification i.e. degree in mechanical engineering are eligible to apply for the post of Motor Vehicle Sub-Inspector under the Rules of 1963 and vide same order dated 03.08.2022, the Court impleaded the Department of Personnel as party respondent (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (9 of 71) [CW-382/2022] in the writ petition. In compliance thereof, issue was placed before DOP and, Joint Secretary, DOP, Government of Rajasthan vide letter dated 30.08.2022 opined that the higher qualified candidates would be treated as eligible to participate in the recruitment process on the post of MVSI. Since the opinion of DOP vide letter dated 30.08.2022, travels against the petitioners, again, in SBCWP No.382/2022, amendment was prayed for to assail the letter of DOP dated 30.08.2022. The amendment was allowed and second amended writ petition has been filed on 20.09.2022. Reliefs sought in the amended writ petition are reproduced hereunder:-

"It is therefore, humbly prayed that this Hon'ble Court be pleased to accept and allow this writ petition and issue following writ, order or direction:

(i) Quash and set aside the order dated 15.12.2021 issued by respondent No.2, to the extent by which candidates who are having higher academic qualification, than three year mechanical engineering/automobile engineering diploma may be declared illegal, and the said candidates may be declared ineligible;

(ii) Quash and set aside the letter dated 30.08.2022 issued by respondent no.15.

(iii) Issue direction to the respondents not to treat the degree of automobile/mechanical engineering course equivalent to the diploma in automobile/mechanical engineering recognized by the State Government or Central Government and further issue direction to the respondents to fill the posts as per the law and consider the candidature of the petitioners who are having the diploma in mechanical/automobile engineering three years and give appointment as per their merit;

(iv) Any other relief as this Hon'ble court may deem fit and proper be also passed in favour of the petitioners."

4. It is important to notice one fact that CWP No.382/2022 has been filed by petitioners, prior to participate in the examination, pursuant to the advertisement dated 24.11.2021, wherein challenge has been made to the Office Order dated 15.12.2021 issued by the RSSB as also the letter dated 30.08.2022 issued by (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (10 of 71) [CW-382/2022] the Department of Personnel and in this writ petition, in the array of respondents apart from the Transport Department, the RSSB, the Department of Personnel and private respondents, who are the degree holders in automobile/mechanical engineering have also been added as parties. Other writ petitions have been filed by petitioners at the later stage of recruitment process. Petitioners in all these writ petitions are possessing the qualification of diploma in automobile/mechanical engineering and their common grievance is that the RSSB by issuing the Office Order dated 15.12.2021 has allowed to participate the degree holders in automobile/mechanical engineering, in the guise of allowing higher qualified candidates, which is not the prescribed qualification under Rule 11 of the Rules of 1963, whereunder recruitment process has been initiated. According to petitioners, requisite qualification under Rule 11 is only diploma in automobile/ mechanical engineering of 3 years' course, therefore, degree holders in automobile/mechanical engineering may not be held eligible and cannot be allowed to compete for the post of MVSI along with diploma holders and further, after initiation of recruitment process vide advertisement dated 24.11.2021 by issuing Office Order dated 15.12.2021, in the midway of recruitment process, the rules of game can not be changed and thus office order dated 15.12.2021 is against law as also violative to Rule 11 of the Rules of 1963 and is arbitrary, being violative to Article 14 of the Constitution of India, as such be quashed.

5. In sum and substance, contentions of petitioners who are having the qualification of diploma in automobile/mechanical engineering are that:

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 [2023/RJJP/000733]                  (11 of 71)                               [CW-382/2022]



(I)    The office order dated 15.12.2021, issued by the RSSB,

allowing candidates of higher education qualification stands violative to the prescribed qualification under the Rule 11 of the Rules of 1963 because when the State Government has not prescribed any higher education than the diploma in automobile/mechanical engineering under Rule 11 of the Rules of 1963, the RSSB has no power or jurisdiction to prescribe higher qualification, allowing candidates having higher education to participate for the post of MVSI in the present recruitment process-2021.

(II) The qualification as prescribed under Rule 11 of the Rules of 1963 for MVSI is essential and requisite qualification which stands clear by issuance of the notification dated 08 th March, 2019 issued by the Ministry of Road Transport and Highways in exercise of powers under Section 213(4) of the Motor Vehicles Act, 1988 (hereinafter for-short "MV Act of 1988") and as such qualification under Rule 11 may not be misconstrued as "minimum qualification", but same be treated as "only qualification". (III) By issuing Office order dated 15.12.2021 virtually the degree in automobile/mechanical engineering has been treated as equivalent to the diploma in automobile/mechanical engineering and therefore, allowing degree holders in automobile/mechanical engineering to the direct recruitment process of MVSI is injustice with petitioners as well as violative to Articles 14 and 16 of the Constitution of India.

(IV) The issuance of office order dated 15.12.2021 virtually tantamount to changing the rules of game after initiation of the recruitment process for the post of MVSI, vide advertisement (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (12 of 71) [CW-382/2022] dated 24.11.2021 and therefore, allowing candidates of higher educational qualification to participate for the post of MVSI by way of subsequent order is illegal and impermissible in law. (V) Petitioners have prayed to set aside the office order dated 15.12.2021 and to direct respondents to fill the advertised posts of MVSI only from candidates possessing the diploma in automobile/mechanical engineering, by excluding candidates holding degree in automobile and mechanical engineering.

6. Respondents, in one and similar tone, have repelled contentions of petitioners by following submissions:-

(I) Allowing higher qualified candidates other than the persons possessing diploma in automobile/mechanical engineering, to participate in the direct recruitment for the post of MVSI is not contrary to the prescribed qualifications under Rule 11 of the amended Rules of 1963 because the prescribed qualification under Rule 11 is the "minimum qualification" and further, apart from qualification of diploma in automobile/mechanical engineering awarded by the State Board of Technical, "any qualification in either of the above disciplines declared equivalent by the Central Government or State Government" is also prescribed under Rule 11, therefore, the State Government is empowered to allow candidates of any qualification equivalent to the diploma in automobile/mechanical engineering.

(II) Section 213(4) of the MV Act of 1988 empowers the Central Government to prescribe the minimum qualification and therefore, the qualification prescribed vide notification dated 08 th March, 2019 of the Central Government, be understood as minimum qualification. Since the Section 213(1) of the MV Act of 1988 (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (13 of 71) [CW-382/2022] preserves the power of State Government to appoint such officers as it thinks fit and in the amended Rule 11 of the Rules of 1963, after prescribing the minimum qualification of diploma in automobile/mechanical engineering awarded by the State Board of Technical, any other qualification in either of the above disciplines declared equivalent by the Central Government or the State Government is also prescribed, which has not been challenged in these writ petitions, hence the State Government is within its competence and jurisdiction to allow candidates holding higher qualification, treating them equivalent to candidates holding diploma in automobile and mechanical engineering, in the same discipline.

(III) The concept of "equivalent qualification" may not be understood as "exact qualification" and on the basis of circular issued by the AICTE, the Board of technical education, Rajasthan, has issued instructions to allow lateral entry of diploma holder directly in the IInd year of degree course, therefore the degree course in automobile/mechanical engineering, is obviously higher qualification than diploma course, but pre-supposes acquisition of lower qualification of diploma and therefore, can not be excluded because same stands, as equivalent qualification at least.

(IV) It is for the employer and the recruitment agency to adjudge the eligibility and qualification of candidates, fit for the appointment. In the present case, the action of RSSB, allowing candidates possessing higher education than candidates holding diploma in automobile/mechanical engineering to be eligible for the post of MVSI, has been approved by the DOP, as well as by the equivalence committee of the State Government. Therefore, the (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (14 of 71) [CW-382/2022] Court must not interfere with the eligibility and qualification criteria as determined by the employer and recruitment agency, while exercising its powers of judicial review under Article 226 of the Constitution of India.

(V) In the previous recruitments of MVSI, prior to the present direct recruitment of 2021, candidates having higher qualification than three years diploma course were considered eligible candidates to participate in the direct recruitment on the post MVSI. The office order dated 15.12.2021 has been issued soon after the advertisement dated 24.11.2021 to make the aforesaid position clear. Since the office order has been issued much prior to the last date of submission of application form, as well as prior to conducting the written examination on 12.02.2022, therefore, this can not amount to change the rules of game.

(VI) The equivalence committee/expert committee in its report dated 14.10.2022 has opined that it is neither rational nor justified to exclude and treat candidates holding higher qualification than the diploma holders in the same discipline as ineligible.

Accordingly, the opinion of the DOP vide Letter dated 30.08.2022 as well as office order of the RSSB dated 15.12.2021 may not be declared invalid or illegal or violative to the Rules of 1963.

7. Taking note of aforestated rival contentions of learned counsel for both parties, this Court deems it just and proper to reproduce the letter dated 30.08.2022, issued by the Joint Secretary, DOP, Government of Rajasthan which is also under challenge in CWP No.382/2022, which reads as under:- (Downloaded on 24/02/2023 at 12:43:34 AM)

 [2023/RJJP/000733]                                     (15 of 71)                                            [CW-382/2022]


                                                   "राजस्ान  सरकार
                                                   काषरर क (क-2) षिभार
                                                                                           जयपुर षदना्रबंक 30/08/2022
    क्ररा्रबंक- प. 17 (14) काषरर क / क-2 /21
     सषचद,
    राजस्ान करर चारारी चयन ब बोरर,
    जयपुर राज० ।

षिषिय:- र बोटर िाहन उप षनरारीक्षक सारीधारी भर् परारीक्षा 2021 रय राजस्ान प पररिहन अधारीनस् सदिा षनयर 1963 कद षनयर 36 कद अनररर र रारर दशर न प्रदान स्रबंब्रबंध रय। स्रबंदभर - आपका पत्र क्ररा्रबंक प. 14(98) RSSB / अ्र ना/प परर०षि०/ र.षि.उप.षन. / भर् /2021 /772 / 23.082022 कद क्रर रय ।

रह बोदय, उपर बोक्त षिषियानररर र एि्रबं स्रबंदषभर र पत्र कद क्रर रय लदख है षक र बोटर िाहन उप षनरारीक्षक सारीधारी भर् परारीक्षा 2021 रय SBCWP NO. 382/2022 रनारीषि कुरार बनार राजस्ान राजय एि्रबं SBCWP NO. 6161/2022 राहुल अ सिाल बनार राजस्ान राजय प्रकरर्थ श्रेण रय राननारीय राजस्ान उ उचच नयायालय, जयपुर ्ड दारा पा पररर आददश षदना्रबंक 03.08.2022 कद स्रबंदभर रय र बोटर िाहन उप षनरारीक्षक सारीधारी भर् परारीक्षा 2021 रय राजस्ान प पररिहन अधारीनस् सदिा षनयर 1963 कद षनयर 36 कद अनररर र ऐ सद अवाले अभय्् षजनह बोनय उ उचच षशक्षा या्रबंषत्रक की अषभया्रबंषत्रक की क की षरत्रिकी की डिगारी प्रााप्ति क की है, कया इ स भर् हदरु आिददन करनद कद पात्र है अ्िा नहव, कद स्रबंब्रबंध रय काषरर क षिभार का अषभरर षनम्नानु सार है:-

राजस्ान प पररिहन अधारीनस् सदिा षनयर, 1963 रय षिषहर प्रािधानिषयों कद अनररर र र बोटर िाहन उप षनरारीक्षक पद क की सारीधारी भर् क की शैक्षषर्थ श्रेणक य बोयोगयरा षनम्नानु सार है-

1. Must have passed Secondary Examination of a recognised Board; and

2. A Diploma in Automobile Engineering (3 years' course) or a diploma in Mechanical Engineering awarded by the State Board of Technical Examination (3 year's course) OR Any qualification in either of the above disciplines declared equivalent by the Central Government or State Government; and

3. Working experience of atleast one year in a reputed Automobile Workshop which undertakes repares of both light (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (16 of 71) [CW-382/2022] motor vehicles, heavey goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engines; and

4. Must hold a driving licence authorising him to drive Motor Cycle, heavy goods vehicles and heavy passenger vehicles.

Nothing contained in this Notification shall apply to persons whose names were under consideration for appointment to the post of Inspector of Motor Vehicles or Assistant Inspector of Motor Vehicles by whatever names called by the State Government prior to first day of July, 1989 or to an officer appointed to such post before the first day of July, 1989 or to an officer appointed to discharge functions of a non- technical nature.

अरः र बोटर िाहन उप षनरारीक्षक पद हदरु स्रबंब्रबंषधर टदर रय षनधार पररर य बोयोगयरा सद उ उचच य बोयोगयराधारारी वयषक्त क बो भारी पद हदरु र्थ श्रेणत्र राना जायदरा । काषरर क षिभार क की अषध सच ू ना षदना्रबंक 08.03.2018 ्ड दारा उक्त षनयरिषयों रय षिषहर प्रािधानिषयों रय स्रबंश बोधन कर र बोटर िाहन उप षनरारीक्षक पद कद सभारी पदिषयों क बो (100 प्रषरशर) सारीधारी भर् सद भरद जानद का प्रािधान षिषहर षकया रया हा।"

(Emphasis Supplied)

8. It is also necessary to take into account the fact available on record that after issuance of the letter dated 30.08.2022 by the Department of Personnel, Government of Rajasthan, when the opinion in this letter traveled against petitioners, reliance was placed by petitioners on a circular dated 18.10.2021 issued by the DOP to the effect that in case of any dispute with regard to the educational qualification and equivalence, the equivalence committee constituted in pursuance to the circular dated 18.10.2021 shall decide the matter. Therefore, on the prayer of petitioners and following the circular of DOP dated 18.10.2021, this Court vide order dated 20.09.2022 directed the Secretary, DOP to place the matter before the equivalence committee to be constituted in pursuance to the circular dated 18.10.2021 for judging the eligibility of candidates, who are having degree in automobile or mechanical engineering for appointment on the post (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (17 of 71) [CW-382/2022] of Motor Vehicle Sub-Inspector pursuant to the original advertisement dated 24.11.2021 and office order dated 15.12.2021. In compliance thereof, a meeting of committee was organized on 14.10.2022 to adjudge the educational eligibility and equivalence and following persons participated in the meeting:

(i). Sh. Kanhaiya Lal Swami, Transport Commissioner

(ii). Sh. Mahendra Kumar Khinchi, Additional Transport Commissioner (Administration)

(iii). Sh. Sanwarmal, Financial Adviser (Transport Headquarter)

(iv). Sh. Arun Kumar Sharma, Deputy Transport Commissioner (Administration)

(v). Sh. Rajiv Tyagi, District Transport Officer (Technical Expert)

(vi). Sh. Yashpal Sharma, Transport Inspector (Technical Expert) The committee in its report dated 14.10.2022, has opined and concluded that it is neither rational nor justified to exclude the degree holders who are higher qualified persons, than diploma holders to participate in the direct recruitment for the post of MVSI. The report of expert and equivalence committee dated 14.10.2022 has been placed on record by the counsel for State along with additional affidavit dated 19.10.2022, which reads as under:

राजस्ान सरकार प पररिहन एि्रबं सड़क सुरक्षा षिभार क्ररा्रबंक एफ 1(95) प परर/र्ा / 2013/94690 जयपुर, षदना्रबंक 14.10.2022 बैठक कायर िाहारी षििरर्थ श्रेण षरर क (क-2 / िादकरर्थ श्रेण) षिभार कद दूओ न बोट रय राननारीय उ उचच नयायालय जयपुर पारीठ कद ए स.बारी. ष सषिल पररट याषचका स्रबंखया 382 / 2022 रनारीषि कुरार आल बो पररया और अनय बनार राजय ि अनय कद स्रबंदभर रय जारारी षदशा- षनददेशिषयों कद क्रर रय आज षदना्रबंक 14.10.2022 क बो अपरानह 4.30 बजद शैषक्षक अहर रा एि्रबं शैषक्षक सरकक्षरा सषरषर क की बैठक आय बोषजर हुई, षज सरय षनम्नषलषखर अषधकारारीरर्थ श्रेण उपषस्र रहद:-

1. शारी कनहैया लाल सिारारी , प पररिहन आयुक्त (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (18 of 71) [CW-382/2022]

2. शारी रहद नद्र कुरार खवचारी, अपर प पररिहन आयुक्त (प्रशा सन)

3. शारी सा्रबंिररल, षित्तारीय सलाहकार, प पररिहन रुखयालय

4. शारी अरुर्थ श्रेण कुरार शरार , उप प पररिहन आयुक्त (प्रशा सन)

5. शारी राजारीि तयारारी, षजला प पररिहन अषधकारारी (रकनारीक की षिशदषिज)

6. शारी यशपाल शरार , प पररिहन षनरारीक्षक (रकनारीक की षिशदषिज) ● बैठक रय र बोटर िाहन उप षनरारीक्षक भर् परारीक्षा 2021 कद अनररर र शैक्षषर्थ श्रेणक य बोयोगयरा कद स्रबंब्रबंध रय रैकदषनकल इ्रबंजारीषनय परर्रबंर और ऑट बोर बोबाईल इ्रबंजारीषनय परर्रबंर कद अवाले अभयष्र यिषयों क की पात्ररा कद स्रबंब्रबंध रय उपषस्र षिषिय पर वयापक षिचार-षिरशर षकया रया ।

● राजस्ान करर चारारी चयन ब बोरर ्ड दारा र बोटर िाहन उप षनरारीक्षक भर् परारीक्षा , 2021 कद षलए षिजषाप्ति क्ररा्रबंक 06/2021 षदना्रबंक 24.11.2021 क बो जारारी क की रई ्ारी, षज सरय शैक्षषर्थ श्रेणक य बोयोगयरा का षििरर्थ श्रेण षनम्नानु सार है:-

1. षक सारी रानयरा प्रााप्ति ब बोरर सद द सिारी परारीक्षा उत्तारीर्थ श्रेणर

2. रारीन िषि्य रैकदषनकल इ्रबंजारीषनय परर्रबंर / ऑट बोर बोबाईल इ्रबंजारीषनय परर्रबंर रय षरपल बोरा या भारर सरकार/ राजय सरकार ्ड दारा घ बोषषिर सरकक्ष य बोयोगयरा ।

● रदननरर षदना्रबंक 15.12.2021 क बो राजस्ान करर चारारी चयन ब बोरर ्ड दारा जारारी स्रबंश बोषधर कायार लय आददश रय शैक्षषर्थ श्रेणक य बोयोगयरा कद स्रबंब्रबंध रय सपष्टारीकरर्थ श्रेण जारारी करकद "उल्लेखित शैक्षखषणिक य योगयत् से उचच्चतर शैक्षखषणिक य योगयत् रिने ने व्ले अे अभयअभ्यर अभ्यर्थी यर्थी भ्यर्थी भी थी भी म योटर ने व्हन उप खनर्यर्थी भीक्षक के पद के खलए आने वेदन कर सकंगे।"

● प्रश्नरर याषचका रय पक्षकार अवाले अभयष्र यिषयों ्ड दारा सड़क प पररिहन एि्रबं राजरारर र्रबंत्रालय, भारर सरकार क की अषध सच ू ना षदना्रबंक 08 राचर 2019 का उललदख कररद हुए रैकदषनकल/ ऑट बोर बोबाइल षरत्रिकी की डिगारीधारक क बो पात्र राननद पर उक्त अषध सच ू ना का उलल्रबं घन षकया जाना बराया है । जबषक रथय यह है क की उक्त अषध सच ू ना कयद्रारीय र बोटरयान अषधषनयर क की धारा कद अ्रबंररर र नयन ू रर शैक्षषर्थ श्रेणक य बोयोगयरा का षनधार रर्थ श्रेण कररारी है। ● उक्त अषध सच ू ना राजय सरकार क बो र बोटर िाहन उप षनरारीक्षक पद क की नय न ू रर शैक्षषर्थ श्रेणक य बोयोगयरा सद उचसरर य बोयोगयरा षनधार परर करनद सद प्रषरब्रबंषधर नहव कररारी है। इ सारी प पररपद परिपेकय रय राजस्ान करर चारारी चयन ब बोरर ्ड दारा शैक्षषर्थ श्रेणक य बोयोगयरा का षनधार रर्थ श्रेण षकया रया है, ज बो क की उषचर है।

● प्राककषरक नयाय कद ष सिदानर एि्रबं वयािहा पररक दृषष्टक बोर्थ श्रेण सद ददखा जाए र बो षक सारी भारी शैक्षषर्थ श्रेणक य बोयोगयरा का षिचार कररद सरय नयन ू रर का हारी षनधार रर्थ श्रेण षकया जारा रहा है। षक सारी भारी पद कद षलए अहर रा कद नयन ू रर रापदणर हारी षनधार पररर षकया जाना उषचर है। षनधार पररर सद उ उचचरर य बोयोगयरा धारक अवाले अभयष्र यिषयों क बो अपात्र रानना न र बो रकर स्रबंरर है और न हारी नयाय स्रबंरर । ● जहा रक र बोटर िाहन उप षनरारीक्षक पद पर भर् हद रु शैक्षषर्थ श्रेणक य बोयोगयरा का प्रश्न है, पि ू र क की भर् प पररक्षाओ्रबं रय भारी षनधार पररर शैक्षषर्थ श्रेणक य बोयोगयरा क बो नयन ू रर रानरद हुए उ उचचरर य बोयोगयरा धारक अवाले अभयष्र यिषयों क बो पात्र राना जारा रहा है।

अतः प्रसतत स प्रकरण मक समग्रतं समग्रतापसरगक सूर्वक सभपूर्वक सभी पक सभी पकवक सभी पक्षों पर पक्षों पर वर्षों पर विचं समग्रतार-पक्षों पर वरमरग कक उपरं समग्रतानत सपक्षों पर वमपक्षों पर वत कं समग्रता पक्षों पर विषकरग ह पक्षों पर वक म मोटर रं समग्रताहि उप पक्षों पर विरपूर्वक सभीक सभी पकक पद हकतस पक्षों पर विनिरं समग्रताग्धाररत रक सभी पकपक्षों पर वणक षणिक य मोिक योगषणिक यतं समग्रता कक सयता के सं के संबयता के संनिर मक कं समग्रतापक्षों पर वमगक पक्षों पर वरूर्वक सभं समग्रताग दं समग्रतारं समग्रता सपक्षों पर व्षों पर विचर, रं समग्रताजसथं समग्रताि कमग्षों पर विचं समग्रतारपूर्वक सभी ्षों पर विचषणिक यि के संब मोरग क मो पत्र क्रमं समग्रतायता के संक प.17 (14) कं समग्रतापक्षों पर वमगक / क-2/21 पक्षों पर वदिं समग्रतायता के संक 30.08.2022 दं समग्रतारं समग्रता प्रदत्त अपक्षों पर वूर्वक सभमत समसपक्षों पर व्षों पर विचत ह ।

9. The report of expert/equivalence committee dated 14.10.2022, as extracted hereinabove, was placed on record by the State along with additional affidavit dated 19.10.2022, has not been accepted by petitioners in SBCWP No.382/2022, and one of the petitioner Manish Kumar Aloria has submitted additional affidavit alleging the report of equivalence committee as arbitrary, (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (19 of 71) [CW-382/2022] discriminatory and beyond the statutory Rules. Learned counsel for petitioners have argued that in fact the report of equivalence committee nowhere whispers that the degree in automobile/mechanical engineering is equivalent qualification with the diploma in automobile/mechanical engineering and such report is just an eyewash which does not throw any light on the clinching issue and as such liable to be discarded.

10. Having heard learned counsel for concerned parties and from perusal of the record, the question falls for consideration and requires to be answered by this Court, is that "as to whether by issuing impugned office order dated 15.12.2021 by the RSSB, in the midway of recruitment process for the post of MVSI started vide advertisement dated 24.11.2021, candidates of higher educational qualification, the degree holders in automobile/mechanical engineering have been allowed to compete along with diploma holders in automobile/mechanical engineering for the post of MVSI, such action is arbitrary, illegal and without jurisdiction on the part of the RSSB as much as against the prescribed qualification under Rule 11 of the Rules of 1963 as also violative to Articles 14 & 16 of the Constitution of India?"

11. In order to adjudicate and answer the question referred hereinabove, this Court deems it just and proper to formulate following issues:-

(I) Whether candidates possessing degree in automobile/mechanical engineering can be allowed to participate for the post of MVSI in the present direct recruitment-2021, in addition to the qualification prescribed in the advertisement dated 24.11.2021 and issuance of office order dated 15.12.2021 by (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (20 of 71) [CW-382/2022] RSSB after advertisement dated 24.11.2021, for the purpose of addition of higher educational qualification for the post of MVSI, other than diploma in automobile/mechanical engineering can be held to be in consonance with the prescribed qualification under Rule 11, Schedule-I of the Rules of 1963?

(II) If issue No.(I) is answered in favour of petitioners, what is the scope of judicial review to intervene in the present dispute, when the impugned office order dated 15.12.2021 has been concurred by the DOP vide letter dated 30.08.2022 and the decision of DOP has been affirmed by the Equivalence Committee through its report dated 14.10.2022, and whether within the scope of judicial review, the action of respondents to allow candidates possessing degree in automobile and mechanical engineering to participate for the post of MVSI can be declared as arbitrary, illegal and violative to Articles 14 & 16 of the Constitution of India?

12. These issues are not novel and previously have been considered in catena of judgments by the Hon'ble Apex Court as well as by various High Courts in myriad and diverse context. Plethora of judgments have been referred by counsel for both sides. Each judgment would be considered and discussed in the light of real ratio decidendi, in the later part of the judgment at an appropriate place wheresoever, reference is required. At this juncture, in order to understand the principles of ratio decidendi and stare decisis, reference of two celebrated judgments of Hon'ble Apex Court would be apposite.

In case of Krishena Kumar Vs. Union of India [(1990) 4 SCC 207], the Apex Court opined that the ratio decidendi has to (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (21 of 71) [CW-382/2022] be ascertained by analyzing all facts of the case and the process of reasoning involving the major premise consisting of pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of material facts of the case under immediate consideration. It has been expounded that the enunciation of reason or principle upon which question before the Court has been decided is alone binding as a precedent. The relevant portion is extracted as under:

"The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi."

The principle of stare decisis has been explained to adhere to precedent and not to unsettle things which are settled. Apart from Article 14 of the Constitution of India, the policy of Courts is to stand by the precedent and not to disturb settled point. When Court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same.

In case of Union of India Vs. Dhanwanti Devi [(1996) 6 SCC 44], the Hon'ble Apex Court opined that what is of the essence of the decision is its ratio and not every observation find therein in order to what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (22 of 71) [CW-382/2022] governed and qualified by the particular facts in which such expressions to be found.

Therefore, in order to understand and appreciate the binding force of a decision, it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot be afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents.

13. Coming to facts of the present case, at the outset, it may be noticed that factual matrix is not disputed to the extent that in the advertisement No.06/2021 dated 24.11.2021 and as per the corrigendum advertisement dated 09.12.2021, the prescribed eligibility and educational qualification to fill up 197 vacant posts of MVSI are in congruity and similar as mentioned under Rule 11 of the Rules of 1963. It is not in dispute that the Rules of 1963 were framed by the Governor of Rajasthan, in exercise of powers conferred by the proviso of Article 309 of the Constitution of India and the Rules have statutory force. Under the Rules of 1963, the post of MVSI is an encadred post, indicated at serial No.2 in Schedule-I appended to the Rules. Under Rule 11, academic and technical qualification for the post of MVSI is prescribed. It may also be noticed that earlier 25% posts required to be filled by promotion and 75% posts required to be filled by direct recruitment, but after issuance of notification date 08.03.2019 by the DOP, Government of Rajasthan, 100% posts of MVSI required (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (23 of 71) [CW-382/2022] to be filled by Direct Recruitment. In Schedule-I of the Rules of 1963, for the post of MVSI following qualifications are prescribed:-

SCHEDULE Post from Minimum Name of Post Source of Qualification for which experience Recruitment direct recruitment appointment and with percentage by promotion qualifications is to be made required for promotion 1 2 3 4 5

1. Motor Vehicle 100% by Motor Vehicle 5 years' Inspector promotion Sub-Inspector experience on the post of mentioned in Column No.4

2. Motor Vehicle 25% by 1. Must have Lower Confirmed Sub-Inspector promotion passed Secondary Division LDC 75% by Examination of a Clerks of possessing direct recognised Board; Transport Diploma or recruitment and Deparment certificate in

2. A Diploma in Automobile Automobile Engg.

                     Deleted         Engineering (3           Deleted          recognised by
                                     years' course) or a                       the Govt. of
                     100% by         diploma in                                Rajasthan
                     direct          Mechanical                                    Or
                     recruitment     Engineering                               Who have
                                     awarded by the                            passed a
                                     State Board of                            Departmental
                                     Technical                                 Examination in
                                     Examination (3                            Automobile
                                     years' course)                            Engineering
                                     Or                                        prescribed by
                                     Any qualification                         the Transport
                                     in either of the                          Department of
                                     above disciplines                         the
                                     declared equivalent                       Government of
                                     by the Central                            Rajasthan
                                     Government or
                                     State Government:
                                     and ...............
                                                                               Deleted

NOTE- It is indicated in the letter of DOP dated 30.08.2022 that the Rules of 1963 have been amended vide notification dated 08.03.2018 and after amendment, the direct recruitment on the post of Motor Vehicle Sub Inspector is 100% , instead of 75%. Thus consequently, columns No.2, 4 & 5 have been accordingly amended/deleted.

(Downloaded on 24/02/2023 at 12:43:34 AM)

[2023/RJJP/000733] (24 of 71) [CW-382/2022]

14. It has been noticed that prior to coming into force of the MV Act of 1988, the State Government alone was empowered to prescribe the qualification for MVSI, however, after coming into force of the MV Act of 1988, power to prescribe the qualification has also been entrusted to the Central Government under Section 213(4) of the MV Act of 1988. Section 213 of the MV Act of 1988 deals with the appointment of Motor Vehicles Officers. Sub-section (1) of Section 213 envisages that the State Government may, for the purpose of carrying into effect the provisions of the Act, establish a Motor Vehicles Department and appoint as officers thereof such persons as it think fit. Sub-section (2) of Section 213 envisages that every such officer shall be deemed to be a public servant. Sub-section (3) of Section 213 envisages that the State Government may make rules to regulate the discharge of officers of the Motor Vehicle Department of their functions. Sub-section (4) of Section 213 prescribes the powers of the Central Government that "the Central Government may, taking regard to objects of the Act, by notification in the Official Gazette prescribe the minimum qualification which the said officers or any class thereof, shall posses for being appointed as such. Sub-sections 5 & 6 of Section 213 envisage powers and functions of the officers of the Motor Vehicles Department. From perusal of aforesaid provisions, it stands clear that where the central government is empowered to prescribe the minimum qualification for the officers to be appointed in the Motor Vehicles Department, the State Government is also authorized and possesses powers to appoint such officers in the Department as it think fit. Thus, the State (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (25 of 71) [CW-382/2022] Government is not denuded from its powers to prescribe qualifications in respect of appointment of the MVSI under the Statutory Rules of 1963, but the only clog on the powers of State Government, after promulgation of the MV Act of 1988 is that the State Government cannot prescribe lower qualification than the minimum qualification as prescribed by the Central Government under Section 213(4) of the MV Act of 1988. Needless to observe here that in case, the State Government prescribed any below qualification than the minimum qualification prescribed by the Central Government, the same would be repugnant to the central law and as such would be void and unconstitutional by virtue of Article 254(1) of the Constitution of India.

15. The Central Government, in exercise of powers to prescribe minimum qualification for appointment of Motor Vehicles Officers under Section 213(4) of the MV Act of 1988, issued a notification dated 12.06.1989 which was duly published in the Gazette and came into force w.e.f. 01.07.1989. Thereafter, the notification dated 12.06.1989 has been amended vide notification dated 08.03.2019 and under the heading "Qualfication" for Serial No.1 to 4 and the entries relating thereto have been substituted. For ready reference, the notification dated 08.03.2019, on which petitioners have placed extensive reliance is being extracted hereunder:

MINISTRY OF ROAD TRANSPORT AND HIGHWAYS NOTIFICATION New Delhi, the 8th March, 2019 S.O. 1215(E).-In exercise of the powers conferred by sub-section (4) of section 213 of the Motor Vehicles Act, 1988 (59 of 1988), the Central Government hereby makes the following amendments in the notification of the Government of India in the Ministry of Road Transport (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (26 of 71) [CW-382/2022] and Highways published in the official Gazette vide number S.Ó. 443(E), dated the 12" June, 1989, namely:-

In the said notification, under the heading 'Qualification', for serial numbers 1 to 4 and the entries realting thereto, the following serial numbers and entries shall respectively, be substituted, namely:

"(i) 10th standard pass from any recognised Board; and

(ii) a diploma in Automobile Engineering (three year course).

or a diploma in Mechanical Engineering (three year course), awarded by any institution recognised by the Central Government or State Government; and

(iii) holding a driving license authorising to drive motor cycle with gear and light motor vehicles."

[F. No. RT-11036/62/2018-MVL] PRIYANK BHARTI, Jt. Secy Note: The principal notification was published in the Gazette of India, Extraordinary, Part II Section 3, Sub-Section (ii) vide S.O. 443(E), dated the 12th June, 1989."

16. The State Government has revised the earlier prescribed qualification by issuing notification dated 03.04.1992 and which was further amended vide notification dated 20.08.1993 and presently the prescribed academic and technical qualification for the post of MVSI by the State Government which are in force, have already been extracted hereinabove in Para-13, while reproducing the Schedule-I of Rule 11 of the Rules of 1963.

17. Since, in these writ petitions, the controversy is confined to higher education to the degree of automobile/mechanical engineering, therefore, this Court is focusing in the differentia between the qualification prescribed by the Central Government vide notification dated 08.03.2019 and the qualification prescribed by the State Government under Rule 11, Schedule-I of the Rules of 1963 as amended and the only difference may be noticed as under:

"A Diploma in Automobile Engineering (3 years' course) or a diploma in Mechanical Engineering awarded by the State Board of Technical Examination (3 year's course) OR (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (27 of 71) [CW-382/2022] Any qualification in either of the above disciplines declared equivalent by the Central Government or State Government; and......"

So it stands clear that the State Government has added following additional qualification:-

"Any qualification in either of the above disciplines declared equivalent by the Central Government or State Government..."

Issue No.(I):-

18. The bone of contentions of learned counsel for petitioners is that the qualification of 3 years' course of diploma in automobile/mechanical engineering is essential and requisite for the post of MVSI and any other qualification in addition to or any higher qualification like the degree in automobile/mechanical engineering travels beyond the qualification prescribed by the Central Government vide notification dated 08.03.2019 and cannot be said to be in consonance with the qualification prescribed under Rule 11 of the Rules of 1963. Therefore, their prayer is that allowing candidates having degree in automobile/mechanical engineering to participate in the direct recruitment-2021 for the post of MVSI, in the guise of allowing candidates having higher education, by way of issuing office order dated 15.12.2021, is arbitrary & illegal and therefore, the degree holders be excluded from participation in the present recruitment process which had been started with the issuance of advertisement dated 24.11.2021.

19. Per contra, learned counsel appearing for the State, the RSSB as also the private respondents i.e. degree holders (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (28 of 71) [CW-382/2022] contended that the degree in automobile/mechanical engineering, being higher educational qualification than the diploma in automobile/mechanical engineering, pre-supposes the prescribed qualification as delineated in the notification dated 08.03.2019 of the Central Government and further in Schedule-1 of Rule 11 of the Rules of 1963, the State Government has prescribed "OR Any qualification in either of the above disciplines declared equivalent by the Central Government or State Government", therefore, the degree at least may be categorized as the equivalent qualification as declared by the State Government because the degree is in the same discipline of the automobile/mechanical engineering. Thus, according to respondents, the higher qualification of degree in automobile/mechanical engineering, pre-supposes the acquisition of minimum qualification of diploma in automobile/mechanical engineering, and the State Government and the RSSB are within their powers and jurisdiction to allow candidates, having higher qualification than the prescribed qualification of diploma in automobile/mechanical engineering, to participate in the present recruitment process. In the recruitment of previous years, the degree holders were permitted to participate, therefore, by way of issuance of office order dated 15.12.2021 by the RSSB, only clarification has been made that the candidates having higher qualification in the same discipline of the diploma in automobile/mechanical engineering will also be eligible to apply for the post of MVSI. Thus, the same is neither derogatory to the minimum qualification prescribed in the notification dated 08.03.2019 nor can be assumed to be contrary or in excess to the (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (29 of 71) [CW-382/2022] prescribed qualification under the Schedule-I of Rule 11 of the Rules of 1963.

20. On facts of present case, because the spate of controversy has arisen due to issuance of office order dated 15.12.2021 by the RSSB, impugned herein, and State has supported the order, therefore, the burden lies on respondents to justify the action of RSSB. Hence by priority it would be apposite to consider and discuss judgments referred and relied upon by the respondents to support their stand.

21. Learned counsel for respondents jointly and extensively have placed reliance on the dictum of the Hon'ble Apex Court expounded in case of S. Satyapal Reddy Vs. Government of A.P. [(1994) 4 SCC 391] and on the strength of the principle of stare decisis would contend that the issue as to whether the State Government can prescribe for equivalent qualification or higher qualification to be the eligibility qualification considering notification prescribed by the Central Government under Section 213(4) of the MV Act of 1988, is no more res integra. In that case, candidates who possessed only the qualification of diploma in mechanical engineering and had applied for the recruitment to the post of Assistant Motor Vehicle Sub Inspector in the Andhra Pradesh Transport Subordinate Services, questioned the competence of degree in automobile and mechanical engineering or diploma in automobile and mechanical engineering or any equivalent qualification as conditions for recruitment and contended that it was the Central Government which had been conferred with powers under Section 213(4) of the MV Act of 1988 (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (30 of 71) [CW-382/2022] that prescribing the qualification for appointment as officers or class of officers under the MV Act of 1988. The State of Andhra Pradesh, also allowed candidates possessing degree in automobile and mechanical engineering to participate in the recruitment process. The question arose as to whether the qualification prescribed by the State Government under powers of Section 213(1) of the MV Act of 1988, is in conflict with the qualification prescribed by the Central Government under Section 213(4) of the MV Act of 1988. Hon'ble Apex Court discussed the issue in detail and observed that the State Government may accept the qualifications as prescribed by the Central Government or may also prescribe higher qualifications, but in no case prescribe any qualification lesser than the qualification prescribed by the Central Government under sub-section (4) of Section 213 of the MV Act of 1988. Prescribing lesser qualification by the State Government, would be in collusion to the minimum qualification prescribed by the Central Government as such same would not be sustainable. The Apex Court held that when the Rules made by the Central Government under Section 213(4) and the Statutory Rules made under proviso to Article 309 of the Constitution of India are construed harmoniously, there is no incompatibility or inconsistency in the operation of both rules to appoint eligible persons to posts or class of officer of the State Government, vis a vis as per qualification prescribed by the Central Government under sub-section (4) of Section 213 of the MV Act of 1988. For ready reference, relevant paragraphs No.5, 6, 7 & 8 of the judgment are being reproduced hereunder:

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[2023/RJJP/000733] (31 of 71) [CW-382/2022] "5. Having given our anxious consideration to the respective contentions, we find that the State's contention merits acceptance. It is seen that marginal note in Section 213 for "appointment of Motor Vehicles Officers" indicates the subject-matter of the section. Sub-section (1) says that the State Government may, for the purpose of carrying into effect the provisions of this Act, establish Motor Vehicles Department and "appoint as officers thereof such persons as it thinks fit". The power of appointment includes the power to select a fit and competent person who it thinks fit to hold the post and would discharge efficiently the functions assigned under the Act. It includes the power to prescribe qualifications to select suitable officers. The Parliament preserved that power to the State Government under Section 213(1) itself by allowing it to appoint the officers whom it finds fit to carry into effect the provisions of the Act. Sub- section (4) gives power to the Central Government, having regard to the object of the Act, by a notification in the Official Gazette "to prescribe minimum qualification" which the officers or class of officers thereof shall possess for being appointed as such officer or to the cadre belonging to the State Government. Under Entry 41 of List 11 (State List) of VIIth Schedule to the Constitution, the public service includes the services of the officers to be appointed under sub-section (1) of Section 213 of the Act. No doubt, as contended by the learned counsel for the appellants that the Act receives paramountcy, since under Entry 35, the subject under the Act covers the concurrent field. Sub-section (4) of Section 213 also preserves the power to prescribe qualifications higher than that"minimum qualification" prescribed by the Central Government to appoint the "said officers or any class thereof shall possess for being appointed as such".

6. In Union of India v. H.S. Dhillon [(1971) 2 SCC 779] considering the scope of Article 246 of the Constitution, a Bench of seven Judges of this Court held thus:

"Reading Article 246 with the three lists in the VIIth Schedule, it is quite clear that Parliament has exclusive power to make laws with respect to all the matters enumerated in List I and this notwithstanding anything in clauses (2) and (3) of Article 246. The State Legislatures have exclusive powers to make laws with respect to any of the matters enumerated in List II, but this is subject to clauses (1) and (2) of Article 246. The object of this subjection is to make parliamentary legislation on matters in Lists I and III paramount. Under clause (4) of Article 246 Parliament is competent also to legislate on a matter enumerated in State List for any part of the territory of India not included in a State. Article 248 gives the residuary powers of legislation to the Union Parliament."

7. It is thus settled law that Parliament has exclusive power to make law with respect to any of the matters enumerated in List I or concurrent power with the State Legislature in List III of the VIIth Schedule to the Constitution which shall prevail over the State law made by the State Legislature exercising the power on any of the entries in List 111. If the (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (32 of 71) [CW-382/2022] said law is inconsistent with or incompatible to occupy the same field, to that extent the State law stands superseded or becomes void. It is settled law that when Parliament and the Legislature derive that power under Article 246(2) and the entry in the Concurrent List, whether prior or later to the law made by the State Legislature, Article 246(2) gives power, to legislate upon any subject enumerated in the Concurrent List, the law made by Parliament gets paramountcy over the law made by the State Legislature unless the State law is reserved for consideration of the President and receives his assent. Whether there is an apparent repugnance or conflict between Central and State laws occupying the same field and cannot operate harmoniously in each case the court has to examine whether the provisions occupy the same field with respect to one of the matters enumerated in the Concurrent List and whether there exists repugnancy between the two laws. Article 254 lays emphasis on the words "with respect to that matter". Repugnancy arises when both the laws are fully inconsistent or are absolutely irreconcilable and when it is impossible to obey one without disobeying the other. The repugnancy would arise when conflicting results are produced when both the statutes covering the same field are applied to a given set of facts. But the court has to make every attempt to reconcile the provisions of the apparently conflicting laws and court would endeavour to give harmonious construction. The purpose to determine inconsistency is to ascertain the intention of Parliament which would be gathered from a consideration of the entire field occupied by the law. The proper test would be whether effect can be given to the provisions of both the laws or whether both the laws can stand together. Section 213 itself made the distinction of the powers exercisable by the State Government and the Central Government in working the provisions of the Act. It is the State Government that operates the provisions of the Act through its officers. Therefore, sub-section (1) of Section 213 gives power to the State Government to create Transport Department and to appoint officers, as it thinks fit. Sub- section (4) thereof also preserves the power. By necessary implication, it also preserves the power to prescribe higher qualification for appointment of officers of the State Government to man the Motor Vehicles Department. What was done by the Central Government was only the prescription of minimum qualifications, leaving the field open to the State Government concerned to prescribe if it finds necessary, higher qualifications. The Governor has been given power under proviso to Article 309 of the Constitution, subject to any law made by the State Legislature, to make rules regulating the recruitment which includes prescription of qualifications for appointment to an office or post under the State. Since the Transport Department under the Act is constituted by the State Government and the officers appointed to those posts belong to the State service, while appointing its own officers, the State Government as a necessary adjunct is entitled to prescribe qualifications for recruitment or conditions of service. But while so prescribing, the State Government may accept the qualifications or prescribe higher qualification but in no case prescribe any qualification less than the qualifications prescribed by the (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (33 of 71) [CW-382/2022] Central Government under sub-section (4) of Section 213 of the Act. In the latter event, i.e., prescribing lesser qualifications, both the rules cannot operate without colliding with each other. When the rules made by the Central Government under Section 213(4) and the statutory rules made under proviso to Article 309 of the Constitution are construed harmoniously, there is no incompatibility or inconsistency in the operation of both the rules to appoint fit persons to the posts or class of officers of the State Government vis-a-vis the qualifications prescribed by the Central Government under subsection (4) of Section 213 of the Act.

8. It is seen that A.P. Transport Subordinate Service Rules have been made by the Governor exercising the power under proviso to Article 309 of the Constitution and Rule 6 thereof prescribes the qualifications as enumerated above. Graduation in Mechanical Engineering is one of the higher qualifications than Diploma. Since Section 213(4) gives such power to the State Government by operation of Section 217 of the Act, the statutory rules remain valid and operate in the field without colliding with the Central rules. Both the rules would operate harmoniously and effect can be given to both the rules. Thus the question of inconsistency or repugnancy under Article 254 of the Constitution does not arise. Therefore, we do not find that there is any conflict in the exercise of power by both Central and State Governments or inconsistency in operation of the provisions of the statutory rules made by the Governor under proviso to Article 309 and the rules made by the Central Government under Section 213(4) of the Act. The recruitment as per State rules is valid and legal."

After going through the entire judgment and the ratio decidendi, this Court has noted that in case of S. Satyapal Reddy (Supra), the State of Andhra Pradesh itself prescribed the qualification of degree in mechanical engineering or degree in automobile engineering as competent and eligibility to apply for the post of Assistant Motor Vehicle Inspector in Andhra Pradesh and in that context, powers of State Government to prescribe the additional or higher qualification vis-a-vis powers of Central Government to prescribe the minimum qualification were the focus of adherence by the Hon'ble Apex Court. But in the case at hand, the Government of Rajasthan has not prescribed the qualification of degree in automobile/mechanical engineering as an eligible (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (34 of 71) [CW-382/2022] qualification for the post of MVSI along with qualification of diploma in automobile/mechanical engineering. As a matter of fact, it is the RSSB, the Recruitment Agency only, by way of issuance of office order dated 15.12.2021, has inserted the qualification of higher education than the diploma in automobile/mechanical engineering in addition to qualifications as prescribed in the advertisement dated 24.11.2021. And when the action of the RSSB has been put to challenge, then in the reply to writ petitions, the State of Rajasthan has supported the office order dated 15.12.2021.

The DOP has issued letter dated 30.08.2022 during the course of writ petition and Equivalence Committee has given its report dated 14.10.2022 in compliance of directions of this Court vide order dated 20.09.2022. Thus the State Government which is appointing authority did not prescribe the qualification of degree in automobile/mechanical engineering as eligible qualification, neither in the advertisement dated 24.11.2021 nor in the Rules of 1963. The issuance of letter of DOP dated 30.08.2022 subsequently and in midway of selection process, during the course of writ petition. The ratio decendidi of this judgment would have been squarely applicable to the present case, if the State Government itself would have been prescribed the qualification of degree in automobile/mechanical engineering being higher qualification, as an eligibility along with diploma in automobile/mechanical engineering, either in the advertisement dated 24.11.2021 itself, while initiating the recruitment process or in the statutory Rules, by way of passing separate notification. (Downloaded on 24/02/2023 at 12:43:34 AM)

[2023/RJJP/000733] (35 of 71) [CW-382/2022] Therefore, in absence of any such prescribed eligibility in the advertisement dated 24.11.2021 or any such notification by the State Government, to make the higher qualification of degree in automobile/mechanical engineering to be eligible to apply for the post of MVSI, in the present recruitment-2021, the ratio of judgment in case of S. Satyapal Reddy (Supra) is not applicable to the present case.

22. In case of Jyoti K.K. Vs. Kerala Public Service Commission [(2010) 15 SCC 596], which has been discussed in several subsequent judgments, the appellants were holders of B.Tech degree in electrical engineering or bachelor's degree in electrical engineering were not considered by the Commission to be eligible for the post of Sub-engineer (electrical) hence they approached the Apex Court and the Apex Court, while placing reliance upon the Rule 10(a) (ii) of the Kerala State and Subordinate Service Rules 1956 held as under:

"9. It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for that post in order to attract that part of the rule to the effect that such of those higher qualifications which presuppose the acquisition of the lower qualifications prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far. Under the relevant rules, for the post of assistant engineer, degree in electrical engineering of Kerala University or other equivalent qualification recognised or equivalent thereto has been prescribed. For a higher post when a direct recruitment has to be held, the qualification that has to be obtained, obviously gives an indication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of sub-engineer. In that view of the matter the qualification of degree in electrical engineering presupposes the acquisition of the lower (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (36 of 71) [CW-382/2022] qualification of diploma in that subject prescribed for the post, shall be considered to be sufficient for that post. In the event the government is of the view that only diploma holders should have applied to post of sub-engineers but not all those who possess higher qualifications, either this rule should have excluded in respect of candidates who possess higher qualifications or the position should have been made clear that degree holder shall not be eligible to apply for such post."

(Emphasis Supplied) In the judgment delivered in case of Jyoti K.K. (Supra), Rule 10(a) (ii) of the Kerala State and Subordinate Service Rules 1956, specifically provides that the clause of higher qualification would pre-suppose the clause of lower qualification prescribed for the post. Whereas in the case at hand, admittedly there is no such rule available, to treat/presume that the degree in automobile/mechanical engineering presupposes the acquisition of lower qualification of diploma in automobile/mechanical engineering, though the same are in similar disciplines. Rather the ratio decidendi of Jyoti K.K. (Supra) is that when a qualification has been set out under the relevant rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The higher qualification must clearly indicate or pre- supposes the acquisition of the lower qualification prescribed for that post in order to attract that part of the rule to the effect that such of those higher qualifications which pre-suppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post.

23. Learned counsel for respondents have placed reliance upon the judgment in case of Parvaiz Ahmad Parry Vs. State of Jammu and Kashmir [(2015) 17 SCC 709], in that case, the prescribed qualification for the post of J& K Forest Range Officers (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (37 of 71) [CW-382/2022] Grade-I was BSc (Forestry) or its equivalent from any university recognized by the Indian Council for Agricultural Research and since appellants in the said case, had qualification of BSc with Forestry as one of the major subjects and in masters in forestry i.e. MSC (Forestry) then in that situation, the candidate possessing the higher qualification was held to possess the required qualification to apply for the post. More over, Hon'ble Apex Court observed that if there was any ambiguity or vagueness noticed in the prescribed qualification in the advertisement, then it should have been clarified by the authority concerned in the advertisement itself.

This Court is of opinion that the ratio of law as expounded by the Apex Court in case of Parvaiz Ahmad Parry (Supra) has no applicability in the present case as in the present case, the degree of B.Tech engineering has been sought to presupposes the qualification of diploma in engineering, being in similar discipline of automobile and mechanical engineering, but it is well settled in India that the diploma in engineering and B.Tech in engineering are two different courses. In case of diploma holders, short term course of three years, focus & stress is on extensive practical knowledge, whereas in case of degree holders, major emphasis is on academics, thus both cater to different situations.

24. Learned counsel for the RSSB has also placed reliance on the judgment of Jammu & Kashmir High Court in case of S. Gurmeet Singh Vs. State & Ors. [(2008) 1 JKJ 68] delivered on 13th December 2007, where the question came up for consideration before the High Court was, as to whether degree in automobile (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (38 of 71) [CW-382/2022] engineering/ mechanical engineering, possessed by petitioners makes them eligible to compete for the post of Motor Vehicle Inspectors, advertisement in regard whereto prescribes only diploma in automobile engineering/mechanical engineering as minimum qualification. The similar argument as has been argued before this Court was also made before the High Court of Jammu & Kashmir that All India Council for Technical Education has issued various notifications, which would demonstrate that the Council has been treating degree in engineering to be a higher qualification of diploma in engineering and it was precisely for this reason that it had treated those candidates possessing diploma in engineering, to be eligible to have lateral entry in the second year of the degree course of engineering. Placing reliance on notifications issued by the All India Council for Technical Education as also on various statutory rules framed by the State Government for its various services, the High Court concluded that the degree in engineering is a higher qualification to that of diploma in engineering. Thereafter, on the peculiar facts of that case, where in the advertisement, qualification of diploma in automobile/mechanical engineering was prescribed as minimum qualification and by way of corrigendum notification, 10 additional points were provided to candidates, possessing degree (B.E.) in addition, to having successfully undergone diploma in engineering course. The Court declared the action of the Board in treating the degree holders as ineligible to compete for the post of Motor Vehicle Inspectors, to be bad in law.

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[2023/RJJP/000733] (39 of 71) [CW-382/2022] As far as present case is concerned, to this extent there is no quarrel that the degree in automobile/mechanical engineering is higher qualification to that of diploma, but there is no material on record to hold that the degree in automobile/mechanical engineering pre-supposes acquisition of the qualification of diploma of same discipline nor treat the degree as equivalent qualification to diploma for the purpose of eligibility for the post of MVSI in the present recruitment process. If the logic of lateral entry is made basis, then it is also the provision that who have completed their B.SC can obtain lateral entry to degree course, but that would not mean that every degree holder, pre-supposes to the B.SC course. If the State Government was intended to allow degree holders in automobile/mechanical engineering to be eligible and compete for the post of MVSI in the present recruitment-2021, in the advertisement dated 24.11.2021 itself such eligibility would have been indicated. Mere issuance of the Office order dated 15.12.2021 by the RSSB may not be put at the same pedestal.

25. Learned counsels for respondents, have placed reliance on next judgment in case of Puneet Sharma VS. Himachal Pradesh State Electricity Board Ltd. [(2021) SCC OnLine SC 291]. In that case, the Apex Court adverted over two questions, whether a degree in electrical engineering/electrical and electronics engineering is technically higher qualification than a diploma in that discipline? And, whether degree holders are eligible for appointment to the post of Junior Engineer (Electrical) under the relevant recruitment rules? The Apex Court has noted (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (40 of 71) [CW-382/2022] that the relevant rules stipulating essential qualifications for the post of JE prescribes essential qualification to be minimum matriculates with diploma in electrical/electronics and communication/Computer Science from the recognized institution/Board/University/ duly recognized by the Central or State Government and further, method of recruitment is 80% by Direct Recruitment and 20% by promotion. The Apex Court has also noted that AICTE on 12.01.2007 has issued notification that student who acquires a diploma in engineering through a minimum of 3 years of institutional study (after 10+2 Secondary Examination), diploma holders were to be academically equivalent to students, who possessed the first year of 4 year engineering degree programme. It was noted that the recruitment and promotion regulations applicable to HPSEB, were amended on 24.05.2010 and they provided that essential qualification for promotion from the post of Junior Engineer (Electrical) to the post of Assistant Engineer (Electrical). The Apex court clearly opined that the Court is conscious that the issue in question is whether the minimum qualifications of a diploma in electrical or electronic engineering or other prescribed qualifications included a degree in that discipline, however, the rules have to be considered as a whole. So view the two sub-quotas are:

(1). 5% enabling those diploma holders who acquire degree qualifications during service as Junior Engineers; and (2). 5% enabling among those who hold degrees before joining as Junior Engineers.

Further, the Apex Court opined that by the amendment dated 03.06.2020, the HPSEB has clarified beyond doubt that even for (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (41 of 71) [CW-382/2022] the post of Junior Engineer, those individuals holding higher qualifications are eligible to compete. The Apex Court noticed that though the amending Rules brought into force prospectively, nevertheless, being clarificatory, they apply to the recruitment that is the subject matter of present controversy. After having adverted to the previous judgments and distinguishing such judgments, on facts, finally the Apex Court held as under:

"38. The considerations which weighed with this court in the previous decisions i.e. P.M. Latha Vs. State of Kerala [(2003) 3 SCC 541], Yogesh Kumar vs. Government of Ntc Delhi, State of Punjab Vs.Anita [(2015) 2 SCC 170] were quite different from the facts of this case. This court's conclusions that the prescription of a specific qualification, excluding what is generally regarded as a higher qualification can apply to certain categories of posts. Thus, in Latha and Yogesh Kumar as well as Anita (supra) those possessing degrees or post-graduation or B.Ed. degrees, were not considered eligible for the post of primary or junior teacher. In a similar manner, for "Technician- III" or lower post, the equivalent qualification for the post of Junior Engineer i.e. diploma holders were deemed to have been excluded, in Zahoor Ahmed Rather (supra). This court is cognizant of the fact that in Anita as well as Zahoor (supra) the stipulation in Jyoti (supra) which enabled consideration of candidates with higher qualifications was deemed to be a distinguishing ground. No such stipulation exists in the HPSEB Rules. Yet, of material significance is the fact that the higher post of Assistant Engineer (next in hierarchy to Junior Engineer) has nearly 2/3rds (64%) promotional quota. Amongst these individuals, those who held degrees before appointment as a Junior Engineers are entitled for consideration in a separate and distinct sub-quota, provided they function as a Junior Engineer continuously for a prescribed period. This salient aspect cannot be overlooked; it only shows the intent of the rule makers not to exclude degree holders from consideration for the lower post of Junior Engineers.

39. As noticed previously, in addition to the above considerations, an amendment to the rules was made on 03.06.2020 declaring that those with higher qualifications are also entitled to apply or be considered for appointment. This amendment was brought in to clear all doubts and controversies and, in that sense, the amending provisions should be deemed to have been inserted from inception."

Thus it clearly appears that in facts of that case, the Apex Court permitted degree holders to be eligible for the post of Junior Engineers (Electrical) along with diploma holders. In the present (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (42 of 71) [CW-382/2022] case, on facts as as well as from perusal of the Statutory Rules, the intention of the State Government to include degree holders along with diploma holders in automobile/mechanical engineering to be eligible for the post of MVSI in present recruitment-2021 nowhere reflects. The State Government neither expressed its intention in the advertisement dated 24.11.2021 nor there is any basis or rule or rational logic to treat the degree in automobile/mechanical engineering as equivalent qualification to the diploma in automobile/mechanical engineering merely on account of being higher educational qualification. No different quotas on promotional post have been pointed out. Therefore, the ratio decidendi delivered in case of Puneet Sharma (Supra) is not applicable to facts of the present case.

26. Per Contra, judgments referred and relied upon by learned counsels for petitioners are as follows:

27. Learned counsel for petitioners have heavily placed reliance upon the judgment of full bench of Allahabad High Court delivered in case of Deepak Singh Vs. State of U.P. [(2020) 1 ALJ 596] and placing reliance on the ratio decidendi of Depaak Singh, on another judgment of Allahabad High Court in case of Abhishek Sharma Vs. State of UP [(2022) 3 ALL WC 3030].

In case of Deepak Singh (Supra), following four questions were referred to the larger Bench:

"A. Whether a Degree in the field in question is entitled to be viewed as a higher qualification when compared to a Diploma in that field?

B. Whether the decisions in Alok Kumar Mishra and Kartikey lay down the correct position in law when they hold that a Degree holder is excluded from the zone of consideration for appointment as a Junior Engineer?

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[2023/RJJP/000733] (43 of 71) [CW-382/2022] C. Whether a degree holder can be held to be ineligible to participate in a selection process for Junior Engineer in light of the relevant statutory rules?

D. Whether the exclusion of degree holders from the zone of consideration would meet the tests as propounded by the Supreme Court in State of Uttarakhand v. Deep Chandra Tewari?"

The full Bench noted that advertisement for Junior Engineer Sanganak and Foreman (General Recruitment) Competitive Examination-2018 issued by the UP Subordinate Services Selection Commission, itself specifically provided eligibility to candidates having diploma in Civil/Electrical/Mechanical Engineering alone. Petitioners were possessing graduate degree in Civil/Electrical/Mechanical Engineering and were aggrieved due to their exclusion for being consideration on the post under the advertisement. From the side of petitioners, it was sought to canvass that the qualification of diploma in engineering is specified as "minimum qualification" and a higher qualification cannot be barred for them being considered for appointment. Per contra from the side of respondents, learned Additional Advocate General argued that graduates in engineering cannot be termed as a qualification in progression of diploma in engineering. As the curriculum for diploma in engineering is very different in relationship to the curriculum for graduation in engineering. The full Bench, having adverted to judgment in case of State of Uttarakhand Vs. Deep Chand Tiwari [2013 (15) SCC 557] observed that the ratio decidendi of that judgment strengthens the proposition that where the qualification is specified, there should be no deviation from the said specified requirement. The Apex Court in case of Deep Chand Tiwari (Supra) itself clarified (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (44 of 71) [CW-382/2022] that as a normal rule, the candidate with higher qualification is deemed to fulfill the lower qualification, prescribed for a post, but the higher qualification has to be in the same channel. The full Bench observed and held that the diploma in engineering and graduate in engineering cannot be held to be in the same channel and also that graduate in engineering cannot be deemed to be fulfilled the qualification which are prescribed for grant of diploma. Thus, the exclusion of degree holders from the zone of consideration was found to meet the test as laid down by the Supreme Court in case of Deep Chand Tiwari (Supra) and accordingly, the question No. D was answered.

In respect of question No. C, the full Bench has held that diploma in engineering is not the same as bachelor in engineering, however, it was clarified that if a candidate possesses both qualifications it means suppose a candidate after acquiring diploma in engineering, also possess graduation in engineering, obviously he would be ineligible in view of the fact that he has acquired diploma in engineering which is required for the post and in that situation, he cannot be denied to participate, only because he had additional qualification of degree, with diploma. However, the degree holders, have not undertaken the diploma in engineering were held ineligible to participate in the selection process for Junior Engineer in the light of relevant statutory Rules and accordingly question No. C was answered.

In respect of questions No. A & B, the full Bench after considering the various judgments of Hon'ble Supreme Court, observed that there is no binding judgment of the Apex Court (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (45 of 71) [CW-382/2022] laying down the law that degree in engineering is in the same line of progression as diploma in engineering. For this principle, the ratio decidendi of the judgment in case of Zahoor Ahmad Rather Vs. Sheikh Imtiyaz Ahmad [(2019) 2 SCC 404] was taken note of and the judgment in case of Jyoti K.K. (Supra), was observed to be distinguished on the ground that the analogy of the judgment in case of Jyoti K.K. (Supra) hinged upon the interpretation of Rule 10(a) (ii) of the Kerala State and Subordinate Service Rules, 1956. The judgment in case of P.M. Latha Vs. State of Kerala [(2003) 3 SCC 541] was also discussed and observed that the ratio decidendi of the said judgment, in fact reinforces the finding that graduates in engineering are not entitled to be considered as it cannot be implied that a graduate in engineering has the qualification of a diploma in engineering. The full Bench has held that the State Government, while prescribing the essential qualifications or desirable qualifications are best suited to decide requirements for selecting a candidate for nature of work required by the State Government and Courts are precluded from laying down conditions of eligibility. If the language in the rules is clear, judicial review cannot be used to decide what is best suited for the employer. The Judgment of full Bench in case of Deepak Singh (Supra) has been affirmed by the Apex Court in Special Leave to Appeal (Civil) No.27250/2019.

28. This Court has noticed that in case of S. Satyapal Reddy (Supra), the Apex Court held that the degree in automobile/mechanical engineering is higher qualification than the (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (46 of 71) [CW-382/2022] diploma in the same discipline and the State Government possesses powers to prescribe the higher qualification as well, therefore, in that case the stand of the State Government to prescribe the higher qualification of graduate in engineering to be eligible to apply for the post of MVSI, has sustained by the Supreme Court. In the full Bench judgment in case of Deepak Singh (Supra), the full Bench has opined that since there is no judgment of the Apex Court or any rule to hold that the degree in engineering, pre-supposes the qualification of diploma in engineering and therefore, in that sense, a degree in engineering cannot be viewed as a higher qualification compared to diploma in engineering of that field. Therefore, this Court does not find any quarrel between the two judgments. The similar view was adopted and expressed by the Single Bench of Allahabad High Court in case of Abhishek Sharma (Supra) and taking note of the fact that the State Government has not prescribed the qualification of degree in mechanical engineering/mechanical automobile engineering for the post of Regional Inspector (Technical) under the Rules of 1980 and rules prescribed the essential qualification to be diploma in automobile engineering or diploma in mechanical engineering, then in that situation, degree holders were excluded from consideration for the post of Regional Inspector (Technical). This Court is in full concurrence of the same view in the present case.

29. This Court further finds force in the submission of learned counsel for petitioners that the qualification of degree in automobile/mechanical engineering cannot be allowed to be added (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (47 of 71) [CW-382/2022] as eligibility qualification on the basis of office order dated 15.12.2021 issued by the RSSB and this action of the RSSB is beyond the qualification prescribed under the Statutory Rules of 1963, framed by the State Government. Learned counsel for petitioners are correct in contending that powers and jurisdiction lie with the State Government i.e. the Rule Making and Appointing Authority, to allow degree holders in automobile/mechanical engineering to be eligible for the post of MVSI, but in facts of the present case, the State Government has not exercised such powers and neither any such qualification has been added in Rule 11, Schedule-I of the Rules of 1963, nor the State Government prescribed such qualification in the advertisement dated 24.11.2021.

30. This Court finds support to accept such contentions, on the basis of judgment of Hon'ble Apex Court, in case of Dr. Krushna Chandra Sahu Vs. State of Orissa [(1995) 6 SCC 1], wherein it has been held that the suitability criteria is to be laid down by the rule making authority and that the selection criteria cannot be laid down by the Selection Board/Selection Committee, unless specifically authorized. For ready reference Paras No.31, 34, 35 & 36 are being extracted as under:

"31. Now, power to make rules regulating the conditions of service of persons appointed on Govt. Posts is available to the Governor of the State under the Proviso to Article 309and it was in exercise of this power that the present rules were made. If the statutory Rules, in a given case, have not been made, either by the Parliament or the State Legislature, or, for that matter, by the Governor of the State, it would be open to the appropriate Government (the Central Government under Article 73 and the State Government under Article 162) to issue executive instructions. However, if the Rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions.

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[2023/RJJP/000733] (48 of 71) [CW-382/2022]

34. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In P.K. Ramachandra lyer v. Union of India [(1984) 2 SCC 141], it was observed:

By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm.

35. Similarly, in Umesh Chandra Shukla v. Union of India [(1985 2 SCR 367], it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Dugacharan Misra v. State of Orissa [(1987) 4 SCC 646] and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce.

36. It may be pointed out that rule making function under Article 309 is legislative and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana [AIR (1981) SC 561].

For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection.

(Emphasis Supplied)

31. In the present case, it is not in dispute that the State Government has not prescribed the qualification of degree in automobile/mechanical engineering being higher educational qualification as eligible education treating the same as equivalent qualification to the diploma in automobile/mechanical engineering, in the advertisement dated 24.11.2021 issued to initiate the present process of direct recruitment-2021 to fill vacant posts of MVSI. It is also true and cannot be disputed that the qualification of degree in automobile/mechanical engineering despite being higher qualification to that of diploma, is not prescribed under Rule 11, Schedule-I of the Rules of 1963 for the post of MVSI. However, the State Government has supported the office order (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (49 of 71) [CW-382/2022] dated 15.12.2021 issued by the RSSB and has taken a stand in the reply to contest writ petitions that in the previous recruitment process of MVSI i.e. Motor Vehicle Sub Inspector Recruitment- 2013, the Rajasthan Public Service Commission seeks guidance from the Department for higher qualification and it was informed by the Department on 04.09.2015 that the candidates having higher qualification than 3 years' diploma for the above post may be considered eligible to apply. The RSSB has also trying to justify the issuance of office order dated 15.12.2021 contending that this office order is merely a clarification, and previously in the past recruitment, degree holders were allowed to participate and also got selected.

32. In this respect, learned counsel for petitioners have strenuously urged that there cannot be any estoppel or waiver against the law. When the action of the RSSB, allowing degree holder in automobile/mechanical engineering to participate in the present recruitment process of MVSI is not supported by the statutory Rules of 1963, the same cannot be held justified by applying the principle of estoppel and waiver. To strengthen the legal submissions, learned counsel for petitioners have placed reliance on a judgment of Apex Court in case of Krishana Rai Vs. Banaras Hindu University [(2022) 8 SCC 713]. In this case, the Apex Court considered the issue whether principle of estoppel and acquiescence will prevail over the statutory service rule prescribing procedure for promotion of Class IV employees to Class III working in the Banaras Hindu University. While replying the said issue, after adhering to the previous several judgments of (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (50 of 71) [CW-382/2022] Supreme Court and more particularly placing reliance on the judgment in case of Tata Chemicals Ltd Vs Commr. Of Customs [(2015) 11 SCC 628], it was held that there can be no estoppel against the law. If the law requires something to be done in a particular manner, then it must be done in that manner, and if it is not done in that manner, then it would have no existence in the eye of law.

33. Therefore, this Court fully agrees with contentions of learned counsel for petitioners and is of the considered opinion that in absence of any qualification of degree in automobile/mechanical engineering to be eligible for the post of MVSI either in the Statutory Rules of 1963 or in the advertisement dated 24.11.2021 or any notification by the State Government to this effect, such qualification cannot be additionally prescribed by the RSSB by issuing office order dated 15.12.2021 in the guise of clarification.

34. The next judgment of the Hon'ble Apex Court, on which learned counsel for petitioners have placed their reliance, is delivered in case of Prakash Chand Meena Vs State of Rajasthan [(2015) 8 SCC 484]. In that case, the RPSC issued advertisement on 03.09.2008 inviting applications for recruitment to the post of PTI Gr.II and PTI Gr.III. A combined competitive examination for both posts was conducted on 04.10.2009. Thereafter, a news item published in newspaper on 18.12.2009 that the State Government had directed the Commission, to treat candidates, who possess DPEd and/Or BPEd also eligible for the post of PTI Gr. III, on the premise that these qualifications should be treated as higher than or equal to CPEd. Therefore, the (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (51 of 71) [CW-382/2022] applicants for the post of PTI Gr. III having qualification of CPEd were aggrieved with the clarification issued by the State Government and hence, they preferred writ petitions. Learned single Judge allowed writ petitions, but the judgment was set aside by the Division Bench, therefore, the matter came up before the Supreme Court. The Supreme Court set aside the judgment of Division Bench and restored the judgment of learned Single Judge and held that "in order to consider view, the issue noticed at the outset must be decided on the basis of settled law noticed by the learned Single Judge that recruitment process must be completed as per terms and conditions in the advertisement and as per rules existing when the recruitment process begun." It was held that in the matter of eligibility qualification, the equivalent qualification must be recognized as such in the recruitment rules or Government order existing that or before the initiation of recruitment process. Since in that case, the process initiated through advertisement dated 03.09.2008 inviting applications did not indicate that the equivalent or higher qualification holders were eligible to apply nor the equivalent qualifications were reflected in the recruitment rules or Government orders of the relevant time, therefore, candidates possessing qualification of BPEd and DPEd were not held eligible to participate in the recruitment process.

(Emphasis Supplied)

35. Applying the ratio decidendi of the judgment in case of Prakash Chand Meena (Supra) to facts of the present case, the present recruitment process-2021 for the post of MVSI has begun (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (52 of 71) [CW-382/2022] with issuance of advertisement dated 24.11.2021 and neither any advertisement nor in the recruitment Rules of 1963, the higher qualification of degree in automobile/mechanical engineering has been prescribed as eligible or equivalent qualification for the post and eligible prescribed qualification is diploma in automobile/mechanical engineering. The concept of equivalency, sought to be argued by learned counsel for respondents that equivalent qualification does not mean exact qualification, may not be accepted in the given facts of present writ petitions as the State Government should have indicated in the recruitment rules of the advertisement dated 24.11.2021 that the higher qualification of degree in automobile/mechanical engineering is treated as equivalent to the qualification of diploma in automobile/mechanical engineering for the purpose of eligible to the post of MVSI. Therefore, allowing degree holders to apply for the post of MVSI, in the guise of issuance of a clarificatory office order dated 15.12.2021 and in the reply of writ petitions, to contend that the qualification of degree at least be treated as equivalent to diploma, being in the same discipline, is not liable to be countenanced and such stand of respondents is against the settled principles of law.

36. In case of Alka Ojha Vs. Rajasthan Public Service Commission [(2011) 9 SCC 438], the question came up for consideration before the Supreme Court as to whether qualifications prescribed in Rajasthan Transport Subordinate Service Rules 1963 for the post of Motor Vehicle Sub Inspector are mandatory and whether petitioners, who were appointed as MVSI (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (53 of 71) [CW-382/2022] in pursuance of the directions given by the learned Single Judge of the High Court are entitled to continue in service despite reversal of the order of learned single Judge by the Division Bench. The Apex Court, after pondering over the qualifications for direct recruitment for the post of MVSI, as prescribed under Rule 11 Schedule-I of the Rules of 1963 held as under-

"14. The use of word "shall" in Rule 11 makes it clear that the qualifications specified in the Schedule are mandatory and a candidate aspiring for appointment as Motor Vehicle Sub- Inspector by direct recruitment must possess those qualifications and must have working knowledge of Hindi written in Devnagri script and knowledge of Rajasthani culture. A conjoint reading of Rule 11, the relevant entries of the Schedule and paragraph 13 of the advertisement shows that a person who does not possess the prescribed educational and technical qualifications, working experience and a driving licence authorizing him to drive motor cycle, heavy goods vehicles and heavy passenger vehicles cannot compete for the post of Motor Vehicle Sub-Inspector."

Although on facts in that case, petitioners were lacking the prescribed qualification i.e. driving licence authorizing them to drive motor cycle, heavy goods vehicles and heavy passenger vehicles, however they were provisionally allowed to participate in the selection process by the Commission and even were given appointment under the orders of the learned Single Judge, but the order of learned single judge was reversed by the Division Bench, then the Supreme Court upheld the judgment of Division Bench and in exercise of powers under Article 142, as also as per the observations of Division Bench, petitioners were allowed to continue in service, until the completion of process of selection for fresh recruitment of Motor Vehicle Sub-Inspector.

37. Learned counsel for petitioners have also referred and relied upon the judgment of Coordinate Bench in case of Dolly Sharma (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (54 of 71) [CW-382/2022] Vs. State of Rajasthan in SB Civil Writ Petition No.5283/2019, where the Court was confronted with the question as to whether, petitioners obtained degree in MA (English) are eligible for the post of Teacher Gr. III (Level II) (English) for which the eligibility under Rule 266(3)of the Rules, 1996 was graduation with subject English as an optional subject. The Court held that though the petitioners have passed M.A. in English and claim that they possess higher qualification hence be declared eligible, but the Court observed that since petitioners have studied subject English as compulsory language and not as optional subject in graduation, therefore, they do not fulfill the required and statutory academic qualification under Rule 266(3) of the Rules of 1996 and consequently, petitioners were not declared eligible for the post of Teacher Gr. III Level II. The Coordinate Bench, placed reliance on the judgment of the Apex Court in case of Zahoor Ahmad (Supra), wherein the qualification prescribed was matriculation with ITI in Electrical trade and the appellants were not possessing ITI certificate who were diploma holders in electrical engineering/electronics & communication, therefore, the Hon'ble Apex Court while distinguishing the judgment in case of Jyoti K.K (Supra), inter alia observed as under:

"26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti K.K. Vs. Kerala Public Service Commission[(2010) 15 SCC 596] in the subsequent decision in State of Punjab Vs. Anita[(2015) 2 SCC 170]. The decision in Jyoti KK turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily pre-supposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The state as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications.

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[2023/RJJP/000733] (55 of 71) [CW-382/2022] Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the state, as the recruiting authority, to determine. The decision in Jyoti KK turned on a specific statutory rule under which the holding of a higher qualification could pre- suppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench of the High Court was justified in reversing the judgment of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision of the Division Bench.

(Emphasis Supplied) Thus, judgments in cases of Alka Ojha (Supra) & Dolly Sharma (Supra) extend support to the case of petitioners.

38. Having considered and discussed judgments of Honb'ble Apex Court as also of various High Courts, the issue No.(I) stands decided in favour of petitioners and against respondents and it is held that candidates possessing degree in automobile/mechanical engineering cannot be allowed to participate in the present direct recruitment-2021 for the post of MVSI on the basis of office order dated 15.12.2021 issued by the RSSB. However, it is made clear that if candidates possessing degree in automobile/mechanical engineering, have also undergone to the course of diploma in automobile/mechanical engineering, obviously they would be eligible and would be considered for recruitment on the post of MVSI on merits in the present recruitment.

Issue NO.(II):-

39. The scope of Judicial review in respect of matters relating to equivalence of academic and technical qualification as also in respect of the issue that higher qualification pre-supposes the acquisition of lower qualification is no more res integra and it can (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (56 of 71) [CW-382/2022] safely be held that as per principle of stare decisis, it is well settled that Courts must tread wearily. It is for the employer to consider as to what type of study and contents of course of studies would lead to the acquisition of eligible qualification and such matters must be left to be at the decision of the educationalists, who are experts in that field and it is not the function of Court to sit as an expert body over the decision of experts. In order to fortify such view, reference of judgments of Hon'ble Supreme Court in cases of Zahoor Ahmad Rather Vs. Sheikh Imtiyaz Ahmad [(2019) 2 SCC 404], The Maharashtra Public Service Commission vs. Sandeep Shriram Warade [(2019) 6 SCC 362] & Chief Manager, Punjab National Bank Vs. Anit Kumar [(2021) 12 SCC 80] would be apposite.

In case of Zahoor Ahmad (Supra), the Hon'ble Apex court held as under:

"26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti KK in the subsequent decision in State of Punjab Vs.Anita [(2015) 2 SCC 170]. The decision in Jyoti KK turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily pre- supposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The state as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the state, as the recruiting authority, to determine. The decision in Jyoti KK turned on a specific statutory rule under which the holding of a higher qualification could pre- suppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench of the High Court was justified in reversing the judgment of the learned Single Judge and in coming to the 10 id at page 177 (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (57 of 71) [CW-382/2022] conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision of the Division Bench.

27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The state is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision making. The state as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti KK must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti KK turned."

In case of The Maharashtra Public Service Commission (Supra), the Hon'ble Apex Court held as under:

"9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive rewriting of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same."

In case of Chief Manager, Punjab National Bank (Supra), the Hon'ble Apex Court held as under:

"21.Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (58 of 71) [CW-382/2022] suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts....."

40. It would not be out of place to take note of the fact that on the judgment of Zahoor Ahmad (Supra), learned counsel for both parties have placed reliance. Learned counsel for petitioners have placed reliance on the ratio of the said judgment which stipulates that candidates to be eligible for the post, must confirm to the eligibility as required under the statutory Rules. Similarly, the ratio of law as prescribed in this judgment is that it would not be permissible to the Court to draw an inference that higher qualification necessarily pre-supposes the acquisition of another, albeit lower qualification. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualification. Similarly, equivalence of a qualification is also not a matter which can be determined by the Court in exercise of the power of judicial review. At the same time, learned counsel for respondents too have placed reliance on the judgment of Zahoor Ahmad (Supra) to buttress their contentions that as per the AICTE circular and NCTE guidelines, there is a provision for lateral entry to diploma holders directly in the second year of degree course in the same discipline and further when the RSSB, by issuing office order dated 15.12.2021, has allowed candidates possessing higher educational qualification than the diploma in (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (59 of 71) [CW-382/2022] discipline of automobile/mechanical engineering and thereby, degree holders having higher qualification are eligible. More so, the Department of Personnel vide its letter dated 30.08.2022 has concurred to allow degree holders to be eligible and able to apply for the post of MVSI in the present recruitment as much as the report of equivalence committee dated 14.10.2022 has affirmed the opinion of the DOP, therefore, there is no scope of judicial review for this Court to disallow and declare degree holders in automobile/mechanical engineering to be ineligible for the post of MVSI in the present recruitment-2021.

41. This Court is of opinion that the ratio decidendi of judgment in case of Zahoor Ahmad (Supra), stands in favour of petitioners in the given facts of the present case. Because the Court has noticed that in the letter of the DOP dated 30.08.2022 as well as in the report of equivalence committee dated 14.10.2022, there is no findings/observations to the effect that the degree in automobile/mechanical engineering, necessarily pre-supposes the acquisition of the qualification of diploma in the same discipline. Further, there is no finding that degree can be and should be treated as equivalent qualification to the diploma in the discipline of automobile/mechanical engineering for the purpose of eligibility and participation for the post of MVSI in the present recruitment- 2021.

42. This Court is conscious about its jurisdiction and scope of judicial review, however, before placing its decision on the basis of letter of DOP dated 30.08.2022 and report of equivalence committee dated 14.10.2022, it is necessary to look into contents (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (60 of 71) [CW-382/2022] of the letter and report of equivalence committee as to whether, the same have expressed opinions/views on clinching issues.

43. The background of facts under which, letter of DOP dated 30.08.2022 came to be issued is that the candidates, who possess degree in automobile/mechanical engineering and participated in the present recruitment process-2021 for the post of MVSI, when the office order dated 15.12.2021 by the RSSB was impugned, sought their impleadment in CWP No.382/2022 and their application was allowed by this Court vide order dated 18.04.2022. Thereafter, their counsel reiterated Rule 36 of the Rules of 1963 which provides that in case any doubt arises relating to the application and scope of these rules, it shall be referred to the government i.e. Department of Personnel whose decision thereon shall be final. This Court vide order dated 03.08.2022 directed the counsel for the RSSB to refer the matter to the Department of Personnel, seeking their opinion on the point as to whether the persons having higher educational qualification i.e. degree in mechanical engineering are eligible for the post of MVSI under the Rules of 1963. In pursuance to such directions of this Court, it appears that the RSSB sought opinion from the Department of Personnel and in response, the letter dated 30.08.2022 has been issued by the Joint Secretary, DOP, Government of Rajasthan. Perusal of this letter, which has been extracted in Para-7 of the judgment, clearly indicates that the decision at the behest of DOP has been taken vide this letter dated 30.08.2022 that candidates having higher educational qualification in the same trade shall be eligible for the post of (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (61 of 71) [CW-382/2022] MVSI. The whole letter indicates the decision only in one line i.e. "अरः र बोटर िाहन उप षनरारीक्षक पद हद रु स्रबंब्रबंषधर टदर रय षनधार पररर य बोयोगयरा सद उ उचच य बोयोगयराधारारी वयषक्त क बो भारी पद हद रु र्थ श्रेणत्र राना जायदरा।".

44. This letter dated 30.08.2022 nowhere reflects that the issue was given a thoughtful consideration by the Government. There is no reference of any meeting of mind or any material taken into consideration by the Department of Personnel, before taking such decision. This letter nowhere whispers that candidates possessing higher educational qualification in the trade of automobile/mechanical engineering, are treated as possessing equivalent qualification to diploma in automobile/mechanical engineering for the purpose of recruitment on the post of MVSI. Further, this letter itself reflects that at the behest of Government of Rajasthan, DOP, the decision has been taken on 30.08.2022 and prior to that, there is no document on record to show such stand of State Government. There is no reference in this letter that in the recruitment for the post of MVSI in previous years, the government has issued any clarification or letter allowing candidates possessing the higher educational qualification of degree in automobile/mechanical engineering being eligible to participate for the recruitment on the post of MVSI, along with diploma holders in automobile/mechanical engineering. Even if the letter dated 30.8.2022 is taken in its entirety, as it is, at the most, the decision of the DOP is indicated in this letter which is post- dated decision, taken in the midway of selection process. It cannot be held clearly on the basis of this letter that candidates possessing higher educational qualification of degree in (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (62 of 71) [CW-382/2022] automobile/mechanical engineering were eligible and entitled to apply for the post of MVSI at the time of issuance of advertisement dated 24.11.2021. Needless to reiterate that in the advertisement dated 24.11.2021, there is no such declaration by the State Government, Department of Personnel that candidates having higher educational qualification in the trade of automobile/mechanical engineering than diploma holders, would be eligible and entitled to apply and participate in the present recruitment process for the post of MVSI. The subsequent change of criteria of eligibility is impermissible in law.

45. Although the letter dated 30.08.2022 has been impugned and sought to be quashed in CWP No.382/2022 but even if this letter is not declared to be quashed or set aside, nevertheless, on the basis of this letter dated 30.08.2022, degree holders in automobile/mechanical engineering cannot be held eligible and entitled to participate in the recruitment process for the post of MVSI initiated with the publication of advertisement dated 24.11.2021. This Court finds support of law and judicial precedents as discussed in judgments referred in foregoing paragraphs of this judgment, while considering the Issue No.(I). The rule of game cannot be changed in the midway of selection process, once it is started. Thus this Court is of the considered opinion that the letter dated 30.08.2022 issued by the Department of Personal, Government of Rajasthan, does not support the case of degree holders to be eligible and entitled to participate for the post of MVSI, as far as the present recruitment process-2021 is concerned. The above decision of DOP taken in (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (63 of 71) [CW-382/2022] the midway after initiating of the recruitment process, cannot be made applicable to the present process of recruitment of MVSI.

46. Coming to the report of Equivalence Committee dated 14.10.20122, it has already been noticed in foregoing paragraphs of this judgment that when the letter dated 30.08.2022 issued by the Joint Secretary of DOP was placed on record, counsel for petitioners raised an objection that there is a circular of DOP dated 18.10.2021 to the effect that in case of any dispute with regard to educational qualification and equivalence, the Committee will decide the matter as constituted in pursuant to the circular dated 18.10.2021. Accordingly this Court vide order dated 20.09.2022, directed the Secretary, DOP to place the matter before the Equivalence Committee constituted in pursuance to the circular dated 18.10.2021. The Equivalence Committee was required to decide the issue that higher educational qualification of degree in automobile/mechanical engineering is equivalent to qualification of diploma in automobile/mechanical engineering for the purpose of treating an eligible qualification for the post of MVSI. Further, it was also required for the Equivalence Committee to consider the issue as to whether the higher educational qualification of degree in automobile/mechanical engineering, pre-supposes the acquisition of diploma course in automobile/mechanical engineering.

47. The report of Experts/Equivalence Committee dated 14.10.2022 as placed on record by the counsel for State along with additional affidavit dated 19.10.2022, has been extracted in Para-8 of this judgment. In the report, narration of factual Matrix (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (64 of 71) [CW-382/2022] has been incorporated and this is full of contents of general discussion. It has been observed that notification dated 8th March 2019 of the Central Government prescribes minimum educational qualification and this notification does not put an embargo on the powers of State Government to allow the higher educational qualification to make eligible for the post of MVSI. Further, this report incorporates an opinion of the committee on the basis of principles of natural justice and as per practical approach, that it is neither justified nor rational to hold the higher qualified candidates as ineligible. This report further incorporates that in the previous recruitment examination for MVSI, directions that candidates possessing higher educational qualification than the prescribed educational qualifications were treated as eligible to apply for the post of MVSI. With such findings/observations the conclusion of the Expert Committee has been expressed to the effect that the opinion of the DOP in the letter dated 30.08.2022 declaring the higher educational qualification to be eligible for the post of MVSI is appropriate.

48. From perusal of the report of Equivalence Committee, this Court finds that the report is silent on the clinching issues. In the report, there is no opinion that how the degree in automobile/mechanical engineering pre-supposes the acquisition of the qualification of diploma in automobiles/mechanical Engineering, and further the report is silent on the issue of equivalence to treat the degree to be equal as diploma being in the same discipline for the purpose of appointment on the post of MVSI. The report of Expert Committee does not reveal any (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (65 of 71) [CW-382/2022] consideration and comparative study in the syllabus of the degree course and diploma course in automobile/mechanical engineering. The report does not reflect application of mind and adherence on the distinguishing factors in the degree and diploma course. There is no consideration of the fact that the diploma holders can obtain lateral entry in the second year of degree course. It is trite that the degree is higher to that of diploma in automobile/mechanical engineering, but it cannot be concluded on the basis of this report of experts that the degree to be always treated necessarily pre- requisite of the diploma course as much as the degree being higher qualification be treated as at least equivalent qualification to the diploma. Thus, the report of experts and Equivalence Committee does not render any support to the case of respondents in that respect.

49. In this respect, the reference of judgment of Hon'ble Supreme Court in case of Ajith K. Vs. Aneesh K. [(2019) 17 SCC 147] where upon counsel for petitioners have placed reliance would be apposite. In this case, persons possessing qualification of diploma in Health Inspector Course (DHIC) were declared ineligible for the post of Junior Health Inspector Gr.III in the municipal common service as in the Rules of 1967, the prescribed qualification was SSLC and sanitary inspector certificate. Although on the basis of provision of Rule 10(a)(ii), it was canvassed that the diploma course should be one which pre-supposes the completion of the certificate course and the letter of Principal Secretary as well as report of experts were have available on record, however, the Supreme Court while affirming the judgment (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (66 of 71) [CW-382/2022] of Division Bench and affirming the correctness of the judgment of Kerala Administrative Tribunal, observed that there was no determination of equivalence by any executive order or standing orders of the State Government. Nor was there any finding that a DHIC, pre-supposes the acquisition of the lower qualification. The RPSC has not carried out any exercise as required by provisions of the Rules.

The ratio decidendi of judgment in case of Ajith K. (Supra) applies to facts of the present case and despite the opinion of DOP in letter dated 30.08.2022 and report of Equivalence Committee dated 14.10.2022, there is no material on record to show that the degree in automobiles/mechanical engineering pre-supposes the acquisition of Diploma and be treated as equivalent to be eligible to apply for the post of MVSI within the prescribed qualifications under the advertisement dated 24.11.2021 as well as statutory Rules of 1963, for the post in question.

50. In counter, learned counsel for respondents have placed reliance on the judgment of Chandrakala Trivedi Vs. State of Rajasthan [(2012) 3 SCC 129]. In this case, word "equivalence" was discussed and the Apex Court observed that the word equivalence must be given reasonable meaning and there are some degrees of flexibility or adjustment which do not lower the stated requirement. It was observed that there has to be some difference between what is "equivalence" and what is "exact". On facts of that case, the requisite educational qualifications for appointment of Teacher Level II, Upper Primary Middle School are Senior Secondary School Certificate or (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (67 of 71) [CW-382/2022] Intermediate or its equivalence and diploma or BEIEd or BEd or equivalence. The appellant had completed her graduation, got BEd degree also acquired M.A. degree. Therefore, on such facts, the Supreme Court in exercise of powers under Article 142 of the Constitution of India, held that the appellant should be considered reasonably and the provisional appointment which had already been given to appellant should not be cancelled.

In the present case, there is no material on record to show/prove that the degree course in automobile/mechanical engineering subsumes diploma course or both are equivalent. It is trite that the there cannot be any pre-suppossing of these issues by the Court in exercise of judicial powers, therefore, this judgment does not support respondents on facts of the present case.

51. Learned counsel for respondents have also placed reliance on the recent judgment delivered in case of Anand Yadav Vs. State of UP [(2020) SCC Online SC 823] wherein, the degree of MEd was treated as equivalent to the degree of MA (Technical) for the post of Assistant Professor in Education. In that case, equivalence was considered between two degree courses, whereas in facts of the present case, equivalence has been sought to be pressed for degree course with the diploma course in automobile/mechanical engineering. The degree course, though is a higher education than diploma, as declared by Hon'ble Supreme Court in case of S. Satyapal Reddy (Supra), but has not been treated as equivalent by the Full Bench of Allahabad High Court in case of Deepak Singh (Supra) and further in case of Abhishek Sharma (Supra). (Downloaded on 24/02/2023 at 12:43:34 AM)

[2023/RJJP/000733] (68 of 71) [CW-382/2022]

52. Having considered the contents of the letter of DOP dated 30.08.2022 and report of Equivalence Committee dated 14.10.2022 as also the scope of judicial review, with the assistance of learned counsel for both parties in the light of judgments referred hereinabove, this Court is of the opinion that the action of the RSSB and the State, to allow candidates possessing degree in automobile/mechanical engineering to participate in the present recruitment-2021 for the post of MVSI is liable to be declared arbitrary, illegal, incongruous to the statutory Rules of 1963 as well as violative to Articles 14 & 16 of the Constitution of India. The decision of DOP in the letter dated 30.08.2022 and the report of Equivalence Committee dated 14.10.2022 concurring with the decision of DOP, are not sufficient to treat degree holders in automobile/mechanical engineering, to be pre-suppossing the acquisition of the course of diploma and to treat the degree as equivalent to diploma, so as to allow degree holders to compete along with diploma holders in the present recruitment-2021. Accordingly, Issue No.(II) stands decided in favour of petitioners and against respondents.

53. For discussions and reasons made hereinabove, this Court reaches to the conclusion that when the degree in automobile/mechanical engineering is not the prescribed qualification in the advertisement dated 24.11.2021, so also in the Statutory Rules of 1963, to be eligible to apply for the post of MVSI in the present recruitment-2021, candidates possessing degree in automobile/mechanical engineering cannot be allowed to apply and participate in the present recruitment process for the (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (69 of 71) [CW-382/2022] post of MVSI, by way of issuance of office order dated 15.12.2021 by the RSSB. Further, the State of Rajasthan, being the appointing and rule making authority, has neither prescribed the degree in automobile/mechanical engineering as eligibility qualification for the post of MVSI in the present recruitment process-2021 and subsequent letter of DOP dated 30.08.2022 as well as report of Equivalence Committee dated 14.10.2022, cannot be taken as substitute of the decision of the State Government, which was never taken in beginning of the present selection process. This Court finds that in the letter of DOP dated 30.08.2022 and report of Equivalence Committee dated 14.10.2022, experts and authorities have not considered the issue of equivalence between degree and diploma in automobile/mechanical engineering nor have considered and opined that degree being higher qualification, pre-supposes the acquisition of diploma course, therefore, the stand of respondents to support the office order dated 15.12.2021 and to allow degree holders in automobile/mechanical engineering to apply and participate in the present recruitment 2021 for the post of MVSI cannot be countenanced, by this Court.

In judgment of S. Satyapal Reddy (Supra), degree in automobile/mechanical engineering was held to be higher qualification than diploma, but since the Government of Andhra Pradesh itself had prescribed qualification of degree in automobile/mechanical engineering as competent and eligibility to apply for the post of Assistant Motor Vehicle Inspector, therefore, the Apex Court allowed degree holders holding that it is within the power and jurisdiction of the State Government to prescribe any (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (70 of 71) [CW-382/2022] additional or higher qualification than the qualification prescribed by the Central Government under Section 213(4) of the Act of 1988. In the present case, the State Government has not prescribed qualification of degree in automobile/mechanical engineering to be eligible for the post in question in the present recruitment. There is no rule in the Rules of 1963, or any other judicial pronouncements to declare that the degree pre-supposes the acquisition of qualification of diploma being higher qualification. Mere by issuance of office order dated 15.12.2021 by the RSSB, such eligibility cannot be permitted to prescribe any qualification.

In judgment delivered in case of Zahoor Ahmad (Supra) on which learned counsel for both parties have placed reliance, the Apex Court has clearly laid down that in absence of any Rule, it would not be permissible for the Court to draw an inference that a higher qualification, necessarily pre-supposes the acquisition of any other, albeit lower qualification. It is no part of the role or function of judicial review to expand upon the ambit or prescribed qualification. Similarly, the equivalence of a qualification is not a matter which can be determined by the Court in exercise of power of judicial review. It has also been observed that CWP No.382/2022, had been filed even prior to issuance of impugned office order dated 15.12.2021 and thus petitioners in this writ petition have challenged the action of the RSSB and the State Government, to allow degree holders treating them eligible and to compete with the diploma holders in the present recruitment 2021 (Downloaded on 24/02/2023 at 12:43:34 AM) [2023/RJJP/000733] (71 of 71) [CW-382/2022] for the post of MVSI prior to their participation in the examination and recruitment process.

54. As a result, the instant writ petitions are hereby allowed. The impugned office order dated 15.12.2021 issued by the RSSB is quashed. Respondent-RSSB is directed to prepare the final result on merit for the post of Motor Vehicle Sub-Inspector, pursuant to advertisement dated 24.11.2021, excluding degree holders in automobile/mechanical engineering and the appointment be given by the State as per merit list in accordance with law.

It is made clear that candidate(s) participated in the present recruitment process, possessing degree in automobile/mechanical engineering, if has/have already undergone to the diploma course and had acquired qualification of diploma in automobile/mechanical engineering, as per the prescribed norms of qualification in the advertisement dated 24.11.2021, shall be considered on merits. No costs.

55. All pending application(s), if any, stand(s) disposed of.

(SUDESH BANSAL),J SACHIN (Downloaded on 24/02/2023 at 12:43:34 AM) Powered by TCPDF (www.tcpdf.org)

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Rajasthan High Court - Jaipur