Jharkhand High Court
Amit Kumar vs Jharkhand Urja Vikas Nigam Limited ... on 14 August, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
1 LPA No.234 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
LPA No.234 of 2021
Amit Kumar, aged about 34 years, son of Sri Laljee Prasad Pramanik,
Resident of Village Harinchara, P.O. & P.S. - Borio, District - Sahibganj
(Jharkhand) ..... Appellant
Versus
1. Jharkhand Urja Vikas Nigam Limited through its Chairman-cum-
Managing Director, having its office at Engineering Building, HEC,
P.O. & P.S. Dhurwa, District Ranchi (Jharkhand)
2. Chairman-cum-Managing Director, Jharkham Urja Vikas Nigam
Ltd. having its office at Engineering Building, HEC, P.O. & P.S. -
Dhurwa, District - Ranchi (Jharkhand)
3. General Manager (HR), Jharkhand Urja Vikas Nigam Limited,
having its office at Engineering Building, HEC, P.O. & P.S. -Dhurwa,
District - Ranchi (Jharkhand) .... Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellant : Mr. Rajendra Krishna, Advocate
Ms. Neeta Krishna, Advocate
For the Respondents-State : Mr. Rajiv Ranjan, AG
Mr. Mohan Kr. Dubey, AC to AG
-----
Order No.6: Dated 14th August, 2023 The appeal is under Clause 10 of the letters patent is directed against the order / Judgment dated 08.02.2021 passed by the learned Single Judge of this Court in WP(S) No.6172 of 2017, by which the direction sought for from the respondents to appoint the writ petitioner on the post Junior Line Man in the category of EBC-1 has been negated by dismissing the writ petition by not giving a finding in favour of the writ petitioner to provide additional point at the rate of 1.5 marks for every six months of the working experience. 2 LPA No.234 of 2021
2. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :-
2(i). The Petitioner/Appellant has passed matriculation examination from Jharkhand Secondary Examination Board, Ranchi and has obtained National Trade Certificate from Tribal Industrial Training Centre, Ranchi which is recognized by the Human Resource Development Department, Government of Jharkhand. The Petitioner / Appellant was orally appointed to work as a Switch Board Operator (hereinafter referred to as SBO) on daily wages basis from 01.04.2012 and since then the Petitioner/Appellant has discharged his duty as an SBO in Borio Power Sub-Station under the Electric Supply Division, Sahibganj. Accordingly, an Experience Certificate has been issued by the Electrical Executive Engineer, Electric Supply Division, Sahibganj on 26.12.2016 in which it has categorically been stated that the Petitioner/Appellant is working as an SBO from 01.04.2012 till date. The Petitioner/Appellant was paid wages directly through Electric Supply Division, Sahibganj and to that effect a Certificate for payment to the Petitioner/Appellant has been issued by the Electrical Executive Engineer, Electric Supply Division, Sahibganj. The Petitioner/Appellant comes under the Category of EBC-1 since he belongs to the caste "Nai" and to that effect a Certificate has been issued by the Sub-Divisional Officer, Sahibganj in relation to the 3 LPA No.234 of 2021 appointment under various posts in the State of Jharkhand and said Certificate has been issued on 14.03.2016.
2(ii). The Petitioner/Appellant is working under Jharkhand Bijli Vitran Nigam Limited (Electrical Executive Engineer, Electric Supply Division, Sahibganj) as an SBO on daily wages basis. It is further stated that Jharkhand Urja Vidyut Nigam Limited (hereinafter referred to as JUVNL) has floated Employment Notification No. 03/2016 through its official website for appointment on various posts including the post of SBO Grade-II, Junior Line Man, Fitter Grade-II along with other posts. The total number of posts for SBO Grade-II is 228 and the seats are earmarked in the Advertisement under different categories depending upon the reservation. Similarly, the total number of posts for Junior Line Man is 215 and accordingly the seats have been earmarked under different categories of reservation. The qualification for applying for the post of SBO Grade-II and Junior Line Man as per Advertisement is as follows:
"Should possess Trade Certificate as Electrician from ITI and should have experience of at least 1 year in the job post qualification and should have passed suitable trade course as Electrician/Wire Man from a recognized ITI and possess at least 1 year experience in the job qualification."
2(iii). It is stated that the selection procedure for the post of Technical staff i.e. at Sl. No.7 to 10 has been categorically provided in the Advertisement which is as follows:-
4 LPA No.234 of 2021
Pen and Paper (P&P) Test score shall be computed to scale of 100 percentage marks weightage for each tests shall be conducted for all eligible candidates in major cities of Jharkhand.
Test will be through P&P (Pen and Paper OMR Answer Sheet and Question Paper Booklet) mode. The duration of the examination will be of 2 hours and 30 minutes and total number of questions in the Test will be 125.
The entire test will comprise of two parts, the 1s being Domain Test of 75 questions and 90 minutes and the 2nd part being General Aptitude Test of 50 questions and 60 minutes duration.
Each correctly answered question will be awarded 4 marks. However, there shall be no negative marking for an incorrect answer.
2(iv). Experience preference is also one of the criteria through which the marks can be obtained which is only made for the technical staff from Sl. No. 7 to 10 and the criteria for allotment of marks has been incorporated in the aforesaid advertisement which is being reproduced here-in-below:
Experience Preference: Candidates having prescribed qualification mentioned for the posts at Sl. No. 7 to 10 and who have experience of directly working with any Government Undertaking Gen Co./Trans Co./Dis. Co. in between 01.01.2007 and 01.12.2016 shall be awarded additional marks 5 LPA No.234 of 2021 as preference weightage for their post qualification work experience on the post advertised by providing weightage of 1.5 marks for each 6 months period of service subject to a maximum of 15 marks, i.e. for those having upto and above 60 months' work experience with the organization as above (within the cut off dates i.e. in between 01.01.2007 to 01.12.2016).
2(v). For the sake of computation of number of months of services rendered by the candidate within the organization as above, Certificate issued from the respective Electrical Executive Engineer (DDO) should be obtained and submitted in the proforma enclosed as the Annexure-1 of the Advertisement, indicating details of post qualification experience, post held and attendance records as well as the salary disbursed for the months to the candidates for computation of experience preference weightage score if the candidate has served during the month in the organization as detail above in between 01.01.2007 to 01.12.2016.
2(vi). The Petitioner /Appellant has submitted his application in time for the post of SBO Grade-II and the Petitioner/Appellant has also exercised his option for second preference for the post of Assistant Operator as well as Junior Line Man which is evident from the Application Form filled up by the Petitioner/Appellant. The Petitioner/Appellant has enclosed the copy of Experience Certificate duly granted by the Electrical Executive Engineer, Electric Supply Division, Sahibganj showing the work experience of the Petitioner / 6 LPA No.234 of 2021 Appellant on the post of SBO on Borio PSS (Power Sub-Station) under Electric Supply Division, Sahibganj in between the period 01.04.2012 till the date the Certificate was issued i.e. 26.12.2016. 2(vii). From the Experience Certificate, it is quite evident that the Petitioner / Appellant who has worked for 6 & 1/2 years is entitled to get 13.5 marks, over and above the marks which the Petitioner/ Appellant has obtained in the written test. The petitioner appellant appeared in the written test conducted on 26.02.2017 and after the result of the written test was shortlisted for document verification for the post of Assistant Operator SBO Grade-II and Junior Line Man with ITI in Electrical / Wire Man Trade.
2(viii). In the month of October 2017, the selected list of successful candidates for the post of SBO Grade-II as Junior Line Man has been circulated.
2(ix) From perusal of the select list, the Petitioner / Appellant came to know that he has not been selected for appointment either against the post of SBO Grade-II or against the post of Junior Line Man and also came to know that the he has got total 40 scaled score but in the said scaled score, the marks obtained by the Petitioner/Appellant for rendering his services at the rate of 1.5 marks for every 6 months, has not been included and therefore, the Petitioner / Appellant was not selected.
2(x). The Petitioner / Appellant has rendered his services for 4 years and 6 months, accrued to a total of 13.5 marks under that head. 7 LPA No.234 of 2021 Thus, if the said marks under the head of experience are added, the total scaled score of the Petitioner/Appellant would be 53.5, thereby Petitioner/Appellant would be appointed/selected in the EBC-1 Category of Junior Line Man, since the last selected candidate for Junior Line Man has got 53.6 scaled score.
2(xi). There are 16 vacancies under the category of EBC-1, which is reflected from the advertisement. On the post of Junior Line Man, only 15 people have been appointed. Therefore, the post of Junior Line Man is still vacant and the Petitioner/Appellant can be appointed to the same as there is no cut-off mark fixed by the Respondent Authorities for the selection of the candidate.
2(xii). For the 16 seats under EBC-1 Category for Junior Line Man, the Petitioner/Appellant will be the 16th successful candidate. The Petitioner / Appellant can be appointed only when the marks allotted for experience is added in his scaled score but unfortunately, the same has not been done while preparing the select list for the post of Junior Line Man. The Petitioner/Appellant being aggrieved from not selected has approached this Court in W.P.(S) No.6172 of 2017 before the Single Judge and the learned Single Judge has dismissed the said writ petition, hence, the present appeal has been filed.
3. It is evident from the factual aspect as referred hereinabove as per the pleadings made that one advertisement was issued by respondent JUVNL being employment notification No.03/2016 for inviting online applications from eligible candidates 8 LPA No.234 of 2021 having prescribed qualification to be appointed on various posts. Herein the writ petitioner has made his application for consideration of his candidature for appointment to the technical staff, i.e. SBO Assistant Operator and Junior Line Man etc. for which, seats have been notified to be filled up along with the bifurcation of the same category wise. The writ petitioner claiming to be eligible to be considered for the said post having trade certificate as electrician from an ITI and have experience of at least one year in the job post qualification has made application for consideration of his candidature. The case of the writ petitioner was considered and while counting the experience, the writ petitioner has not been considered to be kept in the panel of the successful candidates. The writ petitioner has questioned the said action of the respondents by filing the writ petition before this court by taking the ground that since he is working under the respondent JUVNL since the year 2012 and as such he is having the experience and hence it is to be counted inclusive of the one year job experience as is required under the prescribed qualification.
4. The learned Single Judge after calling upon the respondent JUVNL and on consideration of the condition stipulated in the advertisement as under "Head" the selection procedure (C) at Serial No.12 wherein the decision has been taken by the appointing authority as has been published in the said advertisement for the purpose of counting experience preference excluding the experience, 9 LPA No.234 of 2021 which is having with one or another candidate for one year under the prescribed qualification. The learned Single Judge on considering the said aspect of the matter and giving a finding that one year job qualification as required to be possessed by one or other candidate under the prescribed qualification not to be counted under the experience preference and accordingly the writ petition has been dismissed, against which the instant appeal.
5. Mr. Rajendra Krishna, learned counsel appearing for the writ Petitioner/Appellant has submitted that not counting of one year experience, which the writ petitioner has possessed while discharging his duty for a period of one year immediately after getting the trade certificate as electrician is highly arbitrary and irrational decision, since, according to him, experience means experience and there cannot be the bifurcation, one or other employee has gathered experience while discharging of the duty having the nature for which the requirement is to be made.
6. The learned counsel has submitted by referring to the condition stipulated under experience preference, according to which, the experience is to be counted of one or other candidate directly worked with government undertaking, generation corporation / transmission corporation / distribution corporation in between 01.01.2007 to 01.12.2016 shall be awarded additional marks as preference weightage for their post qualification working experience. Hence, the period of one year experience, which is to be required by 10 LPA No.234 of 2021 one or the other candidate under the prescribed qualification head has not been segregated, but even the experience obtained by the writ petitioner immediately after getting the ITI in the job, since has not been considered while considering the experience, as such, the writ petitioner has been not enlisted in the list panel made for the successful candidate. Hence patent illegality has been committed by the recruiting authority. But this aspect of the matter has not been appreciated by the learned single judge in the right perspective, as such, the instant appeal.
7. Mr. Rajiv Ranjan, learned AG appearing for the JUVNL assisted by Mr. Mohan Kr. Dubey has submitted that the qualification, which has been referred under the prescribed qualification "Head" that if a candidate should possessed trade certificate as electrician from an ITI and should have experience of at least one year in the job post qualification is the mandatory educational qualification to be possessed by one or the other candidate mandatorily. Otherwise the candidature of such candidate in absence thereof is to be cancelled at the threshold.
8. According to the learned senior counsel, the said qualification, under the prescribed qualification head, has got nothing to do with the experience preference as stipulated under the subsequent part of the advertisement as under condition /serial No. 12(c), wherein the due care has been taken as to how the additional marks is to be allotted on the basis of the experience obtained by one 11 LPA No.234 of 2021 or the other candidate. It would be evident from the bare reading of the said clause as under experience preference that the candidates having the prescribed qualification mentioned at serial No. 7 to 10 and who have experience of directly working with any government undertaking in between 01.01.2007 to 01.12.2016 shall be awarded additional marks as preference weightage for their post qualification working experience.
9. The post qualification working experience cannot be taken into consideration, which has been referred in the prescribed qualification and accordingly the work experience of one year under the prescribed qualification is having no Nexus for the purpose of counting the experience for awarding additional marks.
10. It has been submitted that leaving apart the one year experience, the experience of the writ petitioner has been counted for the purpose of granting experience preference. The writ petitioner, thus, has been granted lower in the list and as such he has not been empaneled in the list of the successful candidates.
11. Learned senior counsel in the aforesaid premises submitted that it is case where the conditions stipulated in the advertisement has been followed in the letters and sprit and there is no irregularity in the process of selection. According to learned senior counsel, the learned single judge after taking into consideration the aforesaid aspect of the matter, since has declined to pass positive 12 LPA No.234 of 2021 direction in favour of the writ petitioner, is not fit to be interfered with.
12. We have heard the learned counsels appearing for the parties, perused the documents available on record as also the findings recorded by the learned single judge in the order impugned.
13. The issue, which requires to be considered herein, is as to whether the stipulation made under the prescribed qualification is to be treated in continuation to the experience preference or the same is in exclusion to the experience preference for the purpose of the giving of the additional marks.
14. This Court in order to answer the aforesaid issue is required to refer herein the condition stipulated to the extent in the advertisement. It appears from the advertisement that two tables have been given, first in the name of the post, category wise, vacancy and pay-scale and the second column is for prescribed qualification, where the post under consideration is the group-technical Staffs, the post assistant operator. The prescribed qualification has been referred herein which reads as under:
Technical Staff, SBO, Grade II, Jr. Line Man and Fitter Grade II are quoted herein below:
Group Technical Staff
7) Asstt. Operator Total 41 seats Should possess trade Certificate as Electrician from an ITI and should have UR EBC-I BC-II SC ST Total experience of at least one year in the 18 03 02 03 15 41 job post qualification.
Candidates with higher qualification Pay scale: Rs.5200-20200 & Grade pay may also apply for this post only.
Rs.3000
13 LPA No.234 of 2021
8) SBO Gr.-II Total 228 seats Should possess trade Certificate as
Electrician from an ITI and should have
UR EBC-I BC-II SC ST Total
experience of at least one year in the
100 16 14 20 78 228 job post qualification.
Pay scale: Rs.5200-20200 & Grade pay
Rs.2700
9) Jr. Line Man Total 215 seats Should have passed suitable trade
course as Electrician/Wireman from a
UR EBC-I BC-II SC ST Total
recognized ITI and possess at least
103 16 12 20 64 215 one year in the job post qualification.
Pay scale: Rs.5200-20200 & Grade pay
Rs.2700
10) Fitter Gr.-II Total 09 seats Should possess Certificate from an ITI
in the trade Fitter and must have at
UR EBC-I BC-II SC ST Total
least six months experience in the job
04 01 00 01 03 09 post qualification.
Pay scale: Rs.5200-20200 & Grade pay
Rs.3000
15. Possessing trade certificate as electrician from an ITI and should have experience in of at least one year job post qualification. Candidates with higher qualification may also apply for this post only. The minimum percentage marks required against prescribed educational qualification required for its post has also been year- marked therein. The selection procedure has been referred under which, the procedure has been mentioned for awarding the additional marks under the experience preference as Head No. 12 (c) is as follows:-
"Experience Preference:- Candidates having prescribed qualification mentioned for posts at Sl (7) to (10) & who have experience of directly working with any Govt. Undertaking GenCo/TransCo/DisCom in-between 01.01.2007 & 01.12.2016, shall be awarded additional marks as preference weightage for their post qualification working experience on the post advertised by providing weightage of 1.5 marks for each 6 months period of services subject to a maximum of 15 marks (i.e. for those having upto and above 60 months service experience with the organization as above (within the cut-off dates i.e. in-between 1.01.2007 to 01.12.2016). For sake of computation of the number of months of services rendered by the candidate with the organisations as above, certificate issued from the respective Electrical Executive Engineers (DDO) should be obtained and submitted in the proforma enclosed as Annexure-I of the advertisement, indicating details of post qualification experience, post held and attendance records as well as the salary disbursed for the months to the candidate for 14 LPA No.234 of 2021 computation of experience preference weightage score if the candidate has served during the months in the organisation as detailed above in between 01.01.07 to 01.12.2016.
Candidates with post qualification experience shall also be entitled for age relaxation & for the purpose of age-relaxation too the period of experience eligible restricted 5 Years (60 months) only shall be applicable within the category in which the candidature is considered.
(Experience certificate is required to be issued by drawing & disbursing offices competent officer/authority not below the rank of Executive Engineer.) For calculation of years/months of experience the period of consideration shall be in between 01.01.2007 to 01.12.2016. Maximum extent of experience weightage of 15 marks & age relaxation of 5 Years (60 months) shall only be applicable.
Final merit list shall be prepared by the summation of scores of PnP test and experience preference weightage score for selection of candidate category wise above advertised posts at SI (7) to (10)."
16. It is evident from the aforesaid stipulation as made under experience preference that the candidates having prescribed qualification mentioned for the post at serial No. 7 to 10 and who have experience of directly working with any government undertaking generation corporation / transmission corporation / distribution corporation in between 01.01.2007 & 01.12.2016 shall be awarded additional marks as preference weightage for the post qualification working experience on the post advertised by providing weightage of 1.5 marks to be six months period of services subject to maximum of 15 marks. The subject matter of dispute is that the writ petitioner claims that the experience which he has got of one year experience after possessing trade certificate as is required to be possessed under the prescribed qualification is also to be counted for the purpose of awarding additional remarks under the stipulation made under the experience preference.
17. The prescribed qualification as referred in the advertisement, according to our considered view will be the minimum 15 LPA No.234 of 2021 qualification to be possessed by one or the other candidate, failing which, the candidature of such candidate is to be rejected at threshold, meaning thereby if a candidate is having an ITI, but having no experience of one year in the job post qualification, he will be treated to have no requisite qualification.
18. As such, the prescribed qualification is the minimum eligibility criteria to be possessed by the one or the other candidate so as to allow such candidate to participate in the process of selection. The experience preference has also been decided to be given and procedure has been referred for awarding the additional marks. It would be evident from the stipulation made in the experience preference that the same is in two parts, first, the candidate having prescribed qualification mentioned for the post at serial No. 7 to 10, the word having prescribed qualification, which is of paramount importance, that suggests that if candidate is having no prescribed qualification, there is no requirement to allot additional marks, since, in that circumstances the candidature of such candidate will be rejected.
19. Thereafter the second part starts that if such candidate is having the prescribed qualification, i.e., the candidate is to possess the trade certificate as electrician from ITI and should have experience of at least one year in the job post qualification and such candidate, if having experience more than the period of one year, then the argument has been made for awarding the additional marks that is if 16 LPA No.234 of 2021 one or the other candidate has rendered their duties in between 01.01.2007 and 01.12.2016.
20. This court on going through the condition stipulated as under prescribed qualification as also the stipulation made in the experience preference is of the view that the same is in two parts, the first part deal with the mandatory qualification, while the second part deals with the preference to be given on account of experience.
21. The preference always means to give priority to one or the other candidate in order to take advantage of the preference in the matter of recruitment so as to take maximum of one of such candidates who is having the experience. The preference otherwise also can be said that the preference is to be given on assessment of the candidature of one or the other candidate, if are on similar footing so as to assess the candidate of having more experience, so to get to have the more potential for the job in question.
22. It further appears from going through the stipulation made in the prescribed qualification to have ITI and one year experience which is to be treated to be the minimum educational qualification and as such once the same has been said mandatory qualification, there is no reason for asking for the additional marks on the head of one year experience, which is only for the purpose of testing the candidature of one or the other candidate to have an opportunity for consideration of the candidature.
23. The second part is for awarding the additional marks. 17 LPA No.234 of 2021
24. Therefore both the conditions stipulated under the prescribed qualification and the experience preference as per the stipulation made under the head experience preference is of paramount consideration, which denotes as 'disjunctive', segregating the two conditions that is one, the first part as an prescribed qualification and the second part for the purpose of awarding additional marks on the basis of the experience obtained by one or the other candidate, who have come in the fray of the recruitment process on the basis of the prescribed qualification.
25. This court having discussed the aforesaid fact by interpreting the two clause and coming to the order passed by the learned single, from which it has been found that the learned single judge has interpreted the stipulation made under the prescribed qualification head to be separate to that order made under the experience preference, treating the prescribed qualification to be mandatory and experience preference to be for the purpose of giving preference excluding the experience of one year as is prescribed qualification.
26. The learned counsel appearing for the Petitioner / Appellant has submitted that save and except this point, there is no other point to contest.
27. This court, after discussing the condition stipulates in the advertisement as above and coming to the order passed by the learned Single Judge wherefrom this Court has found that the learned Single 18 LPA No.234 of 2021 Judge has also interpreted the condition stipulated under condition nos. 7 to 10 of the advertisement to be mandatory condition to be possessed by one or the other candidate while the condition no. 12(c) is for the purpose of granting additional marks.
28. The learned Single Judge, after considering the mandatory condition of having one year experience, as such, has come to the conclusion that experience of one year has correctly been counted by awarding additional marks as per the claim made by the writ petitioner in the writ petition segregating the condition nos. 7 to 10 from condition no.12(c).
29. This Court, on the basis of the aforesaid fact and discussion made hereinabove, is of the view that the learned Single Judge while doing so has committed no error.
30. In view thereof, the instant appeal lacks merit and accordingly, the same is dismissed.
(Sujit Narayan Prasad, J.) (Navneet Kumar, J.) R.Kumar AFR