Gujarat High Court
Manan Bharatbhai Gadhiya vs Oil And Natural Gas Corporation Limited on 3 May, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8657 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MANAN BHARATBHAI GADHIYA
Versus
OIL AND NATURAL GAS CORPORATION LIMITED & ANR.
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Appearance:
MR SHALIN MEHTA, SR. ADVOCATE with ADITI S RAOL(8128) for the
Petitioner(s) No. 1
MR DEVANG VYAS, SR. ADVOCATE with MR RITURAJ M MEENA(3224)
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 03/05/2024
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr. Shalin Mehta with learned Advocate Ms. Aditi Raol with learned Advocate Ms. Shikha Panchal for the petitioner and learned Senior Advocate Mr. Devang Vyas with Page 1 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined learned Advocate Mr. Rituraj M. Meena for the respondents.
2. By way of this petition, the petitioner has sought for the following prayers :
"24.(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the action on the part of the respondent authorities in not assigning 5 marks to the petitioner in spite of him possessing the certificate of proficiency issued by the Ministry of HRD as per Clause 6.4 (1) and (3) of the advertisement no. 01/2019 as bad in law, arbitrary, unreasonable, irrational and thus violative of Articles 14, 16 and 21 of the Constitution of India and quashing and setting aside the same;
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent authorities to grant the petitioner 5 additional marks to the petitioner for possessing the certificate of proficiency issued by the Ministry of HRD as per Clause 6.4 (1) and (3) of the advertisement no. 01/2019 and revise the merit list accordingly.
(C) Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondent authorities to keep one post of Assistant Technician (production) vacant;
(D) Your Lordships may be pleased to pass any other and/ or further order, as deemed fit, in the interest of justice.
3. It is the case of the petitioner that the petitioner had applied for the post of Assistant Technician (Mechanical) and Assistant Technician (Production) in a selection process conducted by the Respondent-ONGC, Page 2 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined Western Sector, Gujarat State, pursuant to the advertisement No. 01/2019. It appears that while filling up of details in the online application, against the question whether the candidate possesses Certificate of Proficiency issued by the Ministry of HRD, the petitioner had answered as 'No' and in an alternative question whether the candidate possesses National Apprenticeship Certificate issued by the NCVT, the petitioner had answered as 'Yes'. It is the case of the petitioner that in fact, the same was mistake committed by him since he had a certificate issued by the Ministry of HRD, as against the certificate which the petitioner had claimed that he had the certificate issued by the NCVT. It is the case of the petitioner that while the final score of the petitioner was 72.05%, which was not enough to secure a place in the select list, yet, according to the petitioner, had the certificate issued by the Ministry of HRD been considered, the petitioner would have been entitled for an additional 05 marks which would have resulted in the petitioner getting selected. Therefore, the petitioner has raised a grievance against the respondents for not considering the certificate issued by the Ministry of HRD.
4. Learned Senior Advocate Mr. Shalin Mehta for the petitioner would submit that the issue is in a very narrow compass, inasmuch as, the Page 3 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined selection criteria indicated is, 85 marks for Written Test, 10 marks for Academic Performance and 05 marks for Apprenticeship Certificate. Learned Senior Advocate would submit that the advertisement itself stipulated that a candidate possessing the National Apprenticeship Certificate issued by the NCVT/SCVT or possessing a Certificate of Proficiency issued by the Ministry of HRD, shall be given additional 05 marks for the post in question. It is submitted that in the online application form, the petitioner had stated about the petitioner possessing National Apprenticeship Certificate issued by the NCVT, as against the petitioner having stated that he does not possess Certificate of Proficiency issued by the Ministry of HRD. It is submitted by the learned Senior Advocate that the same was an inadvertent mistake. Learned Senior Advocate would draw the attention of this Court to the date of the National Apprenticeship Certificate mentioned in the application form and would submit that the said certificate was with regard to an Apprenticeship Training undergone by the petitioner with the Indian Oil Corporation, dated 28.03.2018. Learned Senior Advocate would submit that the petitioner was under a reasonable impression that it is this certificate which would be the Apprenticeship Certificate as required by the respondents and whereas the petitioner had mentioned in the application form that he possesses the said certificate. Learned Senior Page 4 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined Advocate would submit that as against the same, for the very training in question, the petitioner had been issued with the Certificate of Proficiency by the Ministry of Human Resource Development. Learned Senior Advocate would submit that since the petitioner had mentioned about possessing the National Apprenticeship Certificate in the application form, while the petitioner had informed the respondents about the petitioner possessing the Certificate of Proficiency issued by the Ministry of HRD and whereas it is in this connection that even in the call letter for documents verification dated 20.11.2020, the petitioner was informed about producing inter alia a Certificate of Proficiency issued by the Ministry of HRD. It is submitted by learned Senior Advocate that the petitioner having produced the said certificate, which otherwise was the required certificate, yet, the respondents did not take into account the said certificate while computing the entitlement of the petitioner, and hence, the petitioner did not get the 05 marks which otherwise the petitioner was entitled for, resulting in the petitioner not being selected for the post in question.
4.1 Learned Senior Advocate Mr. Mehta in this regard would rely upon decision of the Hon'ble Apex Court in case of Vashist Narayan Kumar Vs. The State of Bihar and Others, reported in 2024 (1) Scale 36, Page 5 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined whereby according to the learned Senior Advocate, the Hon'ble Apex Court has inter alia laid down the proposition that a trivial error which would appear to be a genuine and bona fide mistake, should not result in a candidate being penalized. Making the above submissions and relying upon the decision of the Hon'ble Apex Court, the learned Senior Advocate would request this Court to direct the respondents to take into account the Certificate of Proficiency issued by the Ministry of HRD and allot 05 marks to the petitioner and rework the merit position of the petitioner and consequently to appoint the petitioner on the post in question.
5. As against the same, the present petition is being contested by learned Senior Advocate Mr. Devang Vyas with learned Advocate Mr. Rituraj Meena on behalf of the respondents. Learned Senior Advocate Mr. Vyas would submit that the question is not whether the petitioner is penalized on account of a trivial error committed by the petitioner, rather the question is whether the petitioner is right in contending that he had committed a trivial error or whether the present was a case of the present petitioner trying to take disadvantage of a certificate which had been issued in his favour on a later date. Learned Senior Advocate would submit in this regard that there was no ambiguity in the requirement Page 6 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined either the candidate was required to state whether he possessed a Certificate of Proficiency issued by the Ministry of HRD or a National Apprenticeship Certificate issued by the NCVT. Learned Senior Advocate would submit that while filling up the application on 13.02.2019, the petitioner had submitted that he possessed a National Apprenticeship Certificate issued by the NCVT dated 28.03.2018. Learned Senior Advocate would thereafter draw the attention of this Court to the Certificate of Proficiency issued by the Ministry of HRD to the petitioner and would submit that the date of the said certificate was 31.07.2020. It is submitted by learned Senior Advocate that undoubtedly on the date when the petitioner had filled up the application form he did not have the said certificate and he had only the certificate dated 28.03.2018 which was a certificate of completion of Apprenticeship Training. Learned Senior Advocate would submit that with both the certificates may relate to the very apprenticeship programme, but at the same time, the petitioner was well aware on the date when he had filled up the application form that he did not have the Certificate of Proficiency issued by the Ministry of HRD. According to the learned Senior Advocate, the petitioner had at the relevant point of time accurately filled up the form since he had stated about the certificate which he had albeit the said certificate was neither a Certificate of Proficiency issued by the Page 7 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined Ministry of HRD nor it was a National Apprenticeship Certificate. 5.1 Learned Senior Advocate Mr. Vyas would submit that upon the petitioner receiving the certificate issued by the Ministry of HRD, dated 31.07.2020, much after the form had been filled in, that the petitioner had developed a rethink of his qualifications. It is submitted by learned Senior Advocate that chronology would clearly show that the present was not a case of a trivial mistake, rather the entire case is an attempt by the petitioner to take disadvantage of a certificate issued to him on a later date. Learned Senior Advocate would submit that the petitioner having filled up the form consciously and the petitioner at that time not having either of the certificates, and since the respondents were under a strict instruction that only the qualification submitted by the candidate during the online registration process be considered, more particularly the same was to be treated as final and no request for change/addition in qualification be entertained, therefore, the respondents were well justified in not considering the candidature of the present petitioner. Learned Senior Advocate would therefore request this Court not to interfere with the present petition.
5.2 Learned Senior Advocate Mr. Vyas would, as regards the contention of learned Senior Advocate Mr. Mehta about the respondents Page 8 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined having accepted the request of the petitioner at the first instance and having issued call letter for documents verification inter alia calling upon him to submit the Certificate of Proficiency issued by the Ministry of HRD, submit that there is nothing on record to raise such a contention. 5.3 It is submitted by learned Senior Advocate Mr. Vyas that as such, a perusal of the call letter for documents verification would clearly reveal that the same was only a proforma of call letter issued to all candidates and whereas the said call letter does not contain any details which have the petitioner specific except the name of the petitioner. 5.4 Learned Senior Advocate Mr. Vyas would further submit that as such, the petitioner would be facing one more hurdle, inasmuch as, according to the learned Senior Advocate, vide an order dated 28.08.2023, this Court had directed the respondents to file an affidavit as regards the number of candidates who had been given appointment orders after filing of the petition. It is submitted by learned Senior Advocate that a perusal of the affidavit filed by the Deputy General Manager (IE), reveals that the selection panel was operative with effect from 23.04.2021 to 22.04.2022, and whereas the selection panel has already expired on 22.04.2022. It is submitted that while the petitioner was placed on the list of potential candidates for position of Assistant Technician (Production), Page 9 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined yet, since the petitioner had secured a lower ranking in terms of merit, his name could not be included when the offer of appointment was extended to around 132 candidates. It is submitted that of the 132 candidates along with 05 wait listed candidates, who had been consequently offered letters of appointment, 02 candidates had resigned and whereas the said vacancies after expiration of the panel has been carried forward and as of now, there are no vacancies available with the respondents where the petitioner could be accommodated. It is further submitted that since some candidate might be required to be removed to accommodate the present petitioner in case this Court were to hold in favour of the petitioner, yet, since even such candidate whose employment might be disturbed having not been joined as party respondent, would result in the case of the petitioner otherwise not being considered by this Court.
6. As against the same, it is submitted by learned Senior Advocate Mr. Mehta for the petitioner in rejoinder that the petitioner was not attempting to take undue advantage of a certificate received by him on a later date, rather it is submitted that the petitioner himself was not aware that he would be issued a Certificate of Proficiency by the Ministry of HRD. It is submitted that the petitioner having a certificate of completing Apprenticeship Training had stated in the application form that he Page 10 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined possessed the National Apprentice Certificate and whereas later on, when the Certificate of Proficiency was received by him, he realized that there had been a mistake and had sought for the Certificate of Proficiency to be considered. Learned Senior Advocate would submit that as such, since the Certificate of Proficiency related to the very period for which the petitioner had been issued with a apprenticeship completion certificate, the petitioner could also contend that while the petitioner had completed the requisite apprenticeship, it is only the certificate which had been issued at a later date and whereas the respondents ought to have given appropriate weightage to the Certificate of Proficiency issued by the Ministry of HRD. Learned Senior Advocate in this regard would rely upon decision of this Court in case Pradeep Ishwar Patil Vs. Oil and Natural Gas Corporation Limited. [Letters Patent Appeal No. 664 of 2022, dated 09.11.2023].
7. Heard learned Senior Advocates for the respective parties and perused the documents on record.
8. The following questions arise for consideration of this Court, namely :
(i) Whether the aspect of stating that the petitioner had a National Apprenticeship Certificate issued by the NCVT was a trivial Page 11 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined error or whether the petitioner was attempting to take disadvantage of a certificate which came to be issued to the petitioner on a later date?
(ii) Whether the petitioner would be entitled to claim that the petitioner having completed his apprenticeship much before the advertisement, therefore the certificate issued by the Ministry of HRD though on a date later than the date of filling up of the application form, yet, the same ought to have been considered and appropriate weightage should have been given to the said Certificate of Proficiency?
9. In the considered opinion of this Court, for answering the said questions, it would be beneficial to reiterate the chronology of relevant facts which are stated hereinbelow :
(i) On 28.03.2018, the Certificate of completion of Apprenticeship Training issued by the Indian Oil Corporation, (ii) on 13.02.2019, the petitioner had filled in the application form and (iii) on 31.07.2020, the Certificate of Proficiency had been issued by the Ministry of HRD.
10. Insofar as the first question is concerned, to this Court it clearly appears that the petitioner is attempting to take disadvantage of the Certificate of Proficiency issued by the Ministry of HRD, which was Page 12 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined dated 31.07.2020. As noted hereinabove, on the date when the petitioner had filled up the online application form, the Certificate of Proficiency by the Ministry of HRD was not issued to the petitioner and whereas the only certificate which the petitioner possessed at that time was a Certificate of completion of Apprenticeship Training, whereas the petitioner had at that time mentioned that he was having a National Apprenticeship Certificate. In the considered opinion of this Court, the petitioner, not having any Certificate of Proficiency on the date of filling up of the online application from, did not commit any mistake while stating that he did not have a Certificate of Proficiency issued by the Ministry of HRD. As a matter of fact, it would also appear that on the date of filling up of the application, the petitioner did not have either the Certificate of Proficiency issued by the Ministry of HRD or the National Apprenticeship Certificate issued by the NCVT, and whereas the petitioner was not even entitled to state that the certificate dated 28.03.2018 was a National Apprenticeship Certificate. Thus, as noted hereinabove, it would appear that the petitioner for whatever reasons had tried to rely upon an apprenticeship completion certificate issued by the IOC as a National Apprenticeship Certificate issued by the NCVT. Thus, it could not be stated that the fact of the petitioner writing that he had a Certificate of NCVT i.e. the National Apprenticeship Certificate and not a Page 13 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined Certificate of Proficiency issued by the Ministry of HRD, was a mistake. In the considered opinion of this Court, the petitioner stating that he had a National Apprenticeship Certificate issued by the NCVT in the application form, and specifically relying upon a certificate which was not the same, the candidature of the petitioner was liable to be rejected at the stage of documents verification only on that count. 10.1 It would also clearly appear that later on, fortuitously, the Ministry of HRD issuing the Certificate of Proficiency to the petitioner, the petitioner is clearly trying to take disadvantage of the same by claiming that he had committed a trivial mistake while filling up the application form.
11. In this regard, it would be relevant to refer to the case of Vashist Narayan Kumar (supra), where the Hon'ble Apex Court has laid down two principles, firstly that candidature of a candidate who has cleared all stages successfully could be cancelled only after careful scrutiny of the gravity of the lapse and not for trivial omissions or errors, more particularly relying upon the principle that law does not concerned itself with trifles. The said proposition would not be applicable in the present case, since the petitioner has not cleared the selection process. Furthermore, the second principle propounded by the Hon'ble Apex Court Page 14 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined being that a trivial error which appears to be a genuine and bona fide mistake should not result in a candidate being penalized. In the considered opinion of this Court, referring to a certificate issued by the IOC as a National Apprenticeship Certificate issued by the NCVT and later claiming that the petitioner actually meant that he was having the Certificate of Proficiency issued by the Ministry of HRD, could not be treated as a genuine error, rather from the fact it is clear that the certificate of completion of apprenticeship by the IOC was the only certificate available with the petitioner on the date of filling up of the online application form and whereas to this Court it does not appear that the petitioner has committed a bona fide mistake while stating the same. Thus, even the proposition of genuine bona fide mistake would not be applicable in the case of the present petitioner.
12. Insofar as the submission that the petitioner had in fact completed the apprenticeship course with the IOC in the year 2017-2018 and a certificate with regard to the same had been given by the Ministry of HRD only in the month of July,2020 which ought to have been taken into consideration, on this aspect too, it would appear that the petitioner is attempting to wriggle out of a situation of his own creation.
12.1 In the considered opinion of this Court, at the time of filling up of Page 15 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined
the application form since the petitioner neither had the Certificate of Proficiency issued by the Ministry of HRD nor the National Apprenticeship Certificate issued by the NCVT, the application form in that regard ought to have been left blank. If that was the case, at a later date, the petitioner probably had the right to say that though the petitioner had completed the apprenticeship much prior to the advertisement, yet, since he did not have the requisite certificate at the relevant point of time, he did not mention about the same in the application from and since the said certificate was available before the stage of documents verification, the respondents ought to take the same into consideration. The proposition laid down by this Court in case of Pradeep Ishwar Patil (supra), might have helped the case of the petitioner, if that was the case. Unfortunately the petitioner having stated that he had a National Apprenticeship Certificate issued by the NCVT, later on, upon receiving the Certificate of Proficiency issued by the Ministry of HRD, it was not open for the petitioner to contend that though he had completed the apprenticeship much earlier, therefore the Certificate of Proficiency issued after the date of filling up of the application form should be considered by the respondents.
13. Insofar as the submission that the respondents had accepted the Page 16 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined contention of the petitioner as regards the mistake committed by the petitioner, and therefore, the documents verification call letter, had only sought the Certificate of Proficiency issued by the Ministry of HRD, in the considered opinion of this Court, the same is nothing but an afterthought. At the first instance, it requires to be noted that neither the petition reflects such a contention nor consequentially the reply would reflect any defence/justification. From the perusal of the call letter dated 20.11.2020, more particularly at Serial No. 16 would read as thus :
"16. Certificate of Proficiency issued by Ministry of HRD (for Diploma Holder) (if applicable)'."
13.1 The words which are mentioned in the brackets i.e. for Diploma Holder and if applicable, clearly reflect that the said requirement was as per a proforma and the said observation gets fortified when one has a cursory glance at the 19 different documents mentioned in the call letter. It would clearly appear that the said call letter was a consolidated call letter for all the categories advertised (probably) since documents not at all relevant to the post which the petitioner had applied for, like Boiler Attendant Certificate at Serial No.14 and Heavy Vehicle Driving License at Serial No.15 formed part of the documents called for verification. Again, in most of the documents required, it is specified very clearly that Page 17 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024 NEUTRAL CITATION C/SCA/8657/2021 JUDGMENT DATED: 03/05/2024 undefined such requisition is only if applicable. Thus, it would appear that the call letter for documents verification was a consolidated call letter and whereas the said call letter was clearly not specific to the petitioner. Thus, it could not be contended by the petitioner that the respondents had at some point of time agreed that the petitioner had committed a mistake and thereby called him to submit the Certificate of Proficiency issued by the Ministry of HRD.
14. In the considered opinion of this Court, for the reasons stated hereinabove, since no case is made out for interference, this Court deems it appropriate not to enter into the aspect of whether the non-availability of the posts or non-joinder of parties would non-suit the petitioner. This Court having held on the above aspects that the petitioner not having made out any case for interference, the later issues are not required to be dealt with by this Court.
15. For the aforementioned discussion, reasoning and conclusion, the present petitioner not making out a case for interference, the petition fails and is hereby disposed of as rejected.
(NIKHIL S. KARIEL,J) BDSONGARA Page 18 of 18 Downloaded on : Mon May 06 21:00:28 IST 2024