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2008 DIGILAW 388 (JK)

Mohd. Ali v. State Of J. &K.

2008-10-18

MANMOHAN SARIN, MOHAMMAD YAQOOB MIR

body2008
1. Appellants have preferred this Letters Patent Appeal assailing the judgment of the learned Single Judge passed in SWP no.978/2007 titled Ahsan Ali & ors v State of J&K & ors. The learned Single Judge dismissed the writ petition filed by the appellants and others who had challenged the advertisement bearing no.202 of 2007 dated July 6, 2007 issued for recruitment to the post of Draftsman. It was assailed on the ground that the qualifications prescribed for the post of Draftsman in the advertisement were contrary to those contained in Schedule II-A (Executive) of the J&K Engineering (Subordinate Service) Recruitment Rules, 1977. 2. The case of the petitioners/appellants before the Writ Court was that the posts of "Draftsmen" in various departments were filled by the Service Recruitment Board in terms of the provisions of J&K (Subordinate Service) Recruitment Act, 1992. The qualification prescribed under the rules was 2 years Draftsman Training Course Certificate/Diploma from any recognized Government Institute. The Hill Development Council, Leh had also been following the said practice in respect of vacancies that had occurred in Leh District. The grievance of the appellants arose from the advertisement notice no.2 dated July 6, 2007 in respect of 26 posts of Draftsmen in Public Works Department. The prescribed qualification was as under: "2 years Draftsmen (Civil Course), Certificate from any recognized Government Polytechnic with Engineering Training RCC Surveying Highway Engineering and other engineering related subject. Preference will be given to the experienced with span of service." Petitioners, who hold a 2 year diploma course from ITI, assail this prescription of the qualification as running counter to the Recruitment Rules and liable to be struck down. 3. We may notice that the petitioners/appellants in the writ petition had not applied for the said posts since their applications would not have been entertained for not possessing the qualification given in the advertisement. The question to be considered before the Writ Court was whether the prescription of the above qualification by the Hill Development Council, Kargil for recruitment to the post of Draftsman was valid and could be enforced despite the rules providing a qualification of 2 years Draftsman Course/diploma from any Government recognized institute? The question to be considered before the Writ Court was whether the prescription of the above qualification by the Hill Development Council, Kargil for recruitment to the post of Draftsman was valid and could be enforced despite the rules providing a qualification of 2 years Draftsman Course/diploma from any Government recognized institute? The learned Single Judge, noticing the difference in the ITI diploma course and the diploma course of the polytechnics in the State as recognized by the Directorate of Technical Education, held that the two qualifications could not be treated at par. Further that the Draftsman Training (Civil) was a higher qualification as compared to the Certificate in Draftsmanship issued by the various Industrial Training Institutes. It was further held that the requirement of a certificate from recognized polytechnic was indicative of the difference in the two courses and that, therefore, the Hill Development Council, Kargil, was well within its powers to frame regulations and/or to take out an advertisement prescribing qualification for the post which was higher than the one as given in the rules. 4. Learned counsel, assailing the judgment of the learned Single Judge before us, urged that Draftsmen throughout the State of Jammu and Kashmir, including Ladakh region, were required to meet only the qualification as prescribed under the J&K Engineering (Subordinate Service) Recruitment Rules. As per Rule 5, Schedule II-A for recruitment of Draftsmen the diploma course from ITI had been duly recognized. Mr. Bhat submitted that in numerous judgments of learned Single Judges of this Court, it has been held that qualification at variance from recruitment rules cannot be prescribed as this would amount to change in the recruitment rules. This plea is misconceived inasmuch as it is not a question of change of rules; rather it is a case of prescribing a qualification higher than the one prescribed in the rules. In the same vein, it was submitted that the powers conferred on the Hill Development Council under Section 41 of the Ladakh Autonomous Hill Development Council Act, 1997, the latter cannot vary the qualification given as per the J&K Engineering (Subordinate Service) Recruitment Rules. As regards challenge to the powers of the Hill Development Council, the said ground had not been specifically raised in the writ petition except for feebly contending that section 41 of the Ladakh Autonomous Hill Development Council Act was contrary to law. As regards challenge to the powers of the Hill Development Council, the said ground had not been specifically raised in the writ petition except for feebly contending that section 41 of the Ladakh Autonomous Hill Development Council Act was contrary to law. The vires of the enactment were not in challenge. In the circumstances, the said plea is not available to the appellants in appeal. 5. Mr. H.I. Hussain, learned counsel for the respondents, submitted that the appellants had not even applied for the post and were not subjected to the selection process and as such are precluded from challenging the selection process. 6. We have considered the submissions made and the grounds raised in the appeal. Even if the J&K Engineering (Subordinate Service) Recruitment Rules and Schedule II-A have prescribed the qualification for Draftsman (Civil), the same would not preclude the Hill Development Council which is an autonomous body, from issuing an advertisement to prescribe qualifications catering to the specific job requirements, in the instant case, as would be seen, nature of work appears to be such that qualification and knowledge in the field of engineering and surveying with engineering training RCC surveying and highway engineering was required. In these circumstances, the Hill Development Council was well within its rights to prescribe a higher qualification suitable for its job requirements. The learned Single Judge in his judgment has specifically dealt with these aspects in paragraphs 2 and 3 of his judgment. The qualification of Draftsman (Civil) from an ITI would not meet the requirements for the post of Draftsman (Civil) where knowledge of surveying in engineering training, highway engineering was required. The two qualifications were different. The Hill Development Council cannot be faulted with for having issued the advertisement notice prescribing qualifications to cater to specific job requirements. 7. Reference may usefully be made to the decision of the Supreme Court in S. Satyapal Reddy v. Government of AP, (1994) 4 SCC 391. The Supreme Court was considering the minimum qualifications prescribed by the Central Government under the Motor Vehicle Act and Rules for the post of Assistant Motor Vehicle Inspector. Diploma in Mechanical Engineering was the minimum qualification prescribed by the Central Government while the State of Andhra Pradesh required a Degree in Mechanical Engineering or certain other alternative qualifications for the same purpose. Diploma in Mechanical Engineering was the minimum qualification prescribed by the Central Government while the State of Andhra Pradesh required a Degree in Mechanical Engineering or certain other alternative qualifications for the same purpose. The Diploma holders who wanted employment in the State contended that on account of the qualifications prescribed under the Central Act, the same superseded the higher qualifications prescribed by the State Government. The Supreme Court after noticing the statutory position and the position under the statute and the rule making powers, observed as under: "...The State Government while appointing its own officers in its Transport Department is necessarily 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 Central Government." 8. On an analogy from the above, it would follow that as long as the Hill Development Council prescribed qualifications that were higher for the post of Draftsman based on the job requirements it could well do so, but it cannot prescribe qualifications which are less than the ones prescribed under the J&K Engineering (Subordinate Service) Recruitment Rules. It may be apt to mention here that our attention has not been drawn to any provision or rule which prohibits the Hill Development Council from framing or prescribing any qualification higher than the minimum qualification prescribed under the Recruitment Rules. 9. In view of the foregoing discussion, we are of the view that there is no ground made out for interference with the well reasoned judgment of the learned Single Judge who has taken a justifiable view in the matter which is in consonance with the approach adopted by the Supreme Court in the cited case. The appeal is, accordingly, dismissed.