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2017 DIGILAW 627 (GAU)

Preeti Kashyap v. Sonu Sahu

2017-05-22

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : Manojit Bhuyan, J. 1. Heard Mr. M. Choudhury, learned senior counsel representing the appellants, assisted by Mr. R. Goswami, Advocate as well as Ms. R.B. Bora, learned counsel representing respondent Nos. 3 and 4. While Mr. S.M. Baruah, Advocate have entered appearance on behalf of respondent Nos. 5 to 10, there is none to represent the respondent Nos. 1 and 2/ writ petitioners although notices had been despatched. On record, the respondent No. 2/ writ petitioner No. 2 have filed affidavit-in-opposition. 2. This is an intra-Court appeal presented against the judgment and order dated 21.07.2015 passed in WP(C) 904/2014. The appellants herein were arrayed as respondent Nos. 6, 11, 3, 4, 8, 10, 12, 16 and 17 in the order as impleaded in the related writ petition. 3. Facts to be noticed is that on 05.09.2013 an Advertisement was issued by the Director, Town and Country Planning, Assam inviting applications for filling up 16 (sixteen) vacancies in the post of Draftsman/Planning Draftsman-II. Out of the said vacancies, 1 (one) was reserved for ST(P), 3 (three) for OBC candidates and 12 (twelve) for General Category candidates. The educational qualification prescribed was that the candidates should possess qualification of 2 (two) years Certificate Course in Draftsmanship(Civil) from Government recognized institution. The respondent Nos. 1 and 2/writ petitioner Nos. 1 and 2 applied for the post on account of possessing the required qualification. Consequent upon the selection process, which involved written examination and viva-voce test, a Select List was published on 12.02.2014. Whereas the present appellants were shown selected, the names of the respondent Nos. 1 and 2/ writ petitioner Nos. 1 and 2 did not figure in the said Select List. Aggrieved, they filed the related WP(C) 904/2014. 4. In the writ petition, the ground of challenge centered around the educational qualification criteria. Submission made was that the selected candidates do not possess the prescribed qualification of 2 (two) years Certificate Course in Draftsmanship (Civil) from Government recognized institution. Rather, they have only undergone 3 (three) years Diploma Course, either in Civil Engineering Planning or in Architectural Assistant-ship, which only qualifies them to be appointed to the next higher post. 5. Submission made was that the selected candidates do not possess the prescribed qualification of 2 (two) years Certificate Course in Draftsmanship (Civil) from Government recognized institution. Rather, they have only undergone 3 (three) years Diploma Course, either in Civil Engineering Planning or in Architectural Assistant-ship, which only qualifies them to be appointed to the next higher post. 5. The learned Single Judge allowed the writ petition by interfering with the Select List dated 12.02.2014 to the extent that the same be recast on the basis of the selection records, confining the selection to those candidates having educational qualification as prescribed in the Advertisement dated 05.09.2013. Interference was made by observing that the educational qualification prescribed is in tune with that prescribed under the Assam Town and Country Planning Subordinate Service Orders, 1991 (in short 'Service Order of 1991'). It was observed that the Service Order of 1991 also takes into consideration the 3 (three) years Diploma Course, either in Civil Engineering or in Architectural Assistant-ship, as the prescribed academic qualification for the post of Planning Assistant, which is a higher post than Draftsman-II/Planning Draftsman Grade-II. It was held that just because the 3 (three) years Diploma Course in Civil Engineering or in Architectural Assistant-ship is the prescribed qualification for a higher post under the same Service Order, it would not ipso facto mean that the qualification can also be treated as the eligibility criteria for the advertised posts in question. Analogy was drawn that if for a particular post the educational eligibility criteria prescribed is Matriculation, a person who is a graduate can also vie for the post, notwithstanding the fact that graduation is a higher qualification than matriculation. Justification assigned is that a person has to pass through matriculation in order to be a graduate. A similar illustration was made in respect of a particular post where the minimum prescribed qualification is graduation. In such a case, a post-graduate degree holder, which is undoubtedly a higher qualification, would be eligible to vie for the same. Reason being that in both the illustration above, the candidate with higher qualification also does possess the minimum prescribed qualification. A similar illustration was made in respect of a particular post where the minimum prescribed qualification is graduation. In such a case, a post-graduate degree holder, which is undoubtedly a higher qualification, would be eligible to vie for the same. Reason being that in both the illustration above, the candidate with higher qualification also does possess the minimum prescribed qualification. Responding to the contention advanced on behalf of the State, the learned Single Judge observed that it was not the case of the respondents that in order to obtain the 3 (three) years Diploma Course, either in Civil Engineering or in Architectural Assistant-ship, one has to first obtain the 2 (two) years Certificate Course in Draftsmanship (Civil) from any recognized institution. That being so, a candidate having 3 (three) years Diploma Course in Civil Engineering or in Architectural Assistant-ship cannot claim to have 2 (two) years Certificate Course in Draftsmanship (Civil) from any recognized institute, which is the eligibility requirement for the advertised posts. Accordingly, the learned Single Judge directed that appointment be provided to only those candidates who has 2 (two) years Certificate Course in Draftsmanship (Civil) from any recognized institution, with further direction that the Select List dated 12.02.2014 be recast accordingly. 6. At the very outset, we place on record that we respectfully disagree with the findings and decision of the learned Single Judge. This view of ours is fortified on the basis of the Supreme Court case in Jyoti K.K. and Others v. Kerala Public Service Commission, reported in (2010) 15 SCC 596. In the said case, the Kerala Public Service Commission had invited applications for the post of Sub-Engineers (Electrical) in the Kerala State Electricity Board. The technical qualification prescribed, amongst others, was Diploma in Electrical Engineering of a recognized institution after 3 (three) years' course of study. Challenge was made by holders of B. Tech Degree in Electrical Engineering or Bachelors' Degree in Electrical Engineering being aggrieved of the decision of the Commission holding them as not eligible for selection as they did not possess the necessary qualification. Before the High Court the holders of B. Tech degree contended that since they possess higher qualification, therefore, non-consideration of their cases were not correct. The challenge so made was negated on ground that the qualifications possessed by the petitioners therein do not presuppose the acquisition of prescribed lower qualifications. Before the High Court the holders of B. Tech degree contended that since they possess higher qualification, therefore, non-consideration of their cases were not correct. The challenge so made was negated on ground that the qualifications possessed by the petitioners therein do not presuppose the acquisition of prescribed lower qualifications. It was held that when qualifications have been prescribed for a post, the same cannot be diluted and persons not possessing the prescribed qualification cannot be held to be eligible. Answering the issue, the Supreme Court observed as under: "8. 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 qualification of diploma in that subject prescribed for the post, shall be considered to be sufficient for that post. 9. 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. When that position is not clear but on the other hand the Rules do not disqualify per se the holders of higher qualifications in the same Faculty, it becomes clear that the Rule could be understood in an appropriate manner as stated above. In that view of the matter the order of the High Court cannot be sustained. In this case we are not concerned with the question whether all those who possess such qualifications could have applied or not. When statutory Rules have been published and those Rules are applicable, it presupposes that everyone concerned with such appointments will be aware of such Rules or make himself aware of the Rules before making appropriate applications. The High Court, therefore, is not justified in holding that recruitment of the appellants would amount to fraud on the public." 7. When statutory Rules have been published and those Rules are applicable, it presupposes that everyone concerned with such appointments will be aware of such Rules or make himself aware of the Rules before making appropriate applications. The High Court, therefore, is not justified in holding that recruitment of the appellants would amount to fraud on the public." 7. In the instant case, the appellants clearly possess higher qualification making them eligible for appointment to a higher post than that of the post of Draftsman Grade-II/Planning Draftsman Grade-II. In terms of the reported case in Jyoti K.K. (supra) their higher qualification presupposes the acquisition of the lower qualification of 2 (two) years Certificate Course in Draftsmanship (Civil), which has to be considered to be sufficient in so far as the advertised posts are concerned. Another aspect of the matter is that in the Advertisement dated 05.09.2013 or in the Service Order of 1991, there is no mention or any provision excluding candidates possessing higher qualifications from offering their candidature against the advertised posts. In absence thereof, the appellants per se cannot be held as not being eligible to apply for the advertised post or be held to be ineligible to participate in the selection process or to be denied appointment on the basis of their merit standing. 8. Pursuant to the order of this Court dated 13.07.2016 passed in the present appeal proceedings, it is brought to our notice that the appellants have been offered appointment as Draftsman/Planning Draftsman-II. In view of the findings above, we find no good ground to disturb the position as obtaining today. This appeal stands allowed by setting aside the judgment and order dated 21.07.2015 passed in WP(C) 904/2014. The parties are left to bear their own cost.