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2020 DIGILAW 472 (CHH)

Dheeraj Dewangan v. State Of Chhattisgarh

2020-08-24

GOUTAM BHADURI

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JUDGMENT Goutam Bhaduri, J. - Heard. 2. Since both the petitions are arising out of the same cause of action, therefore, they are being considered and disposed of by this common order. 3. The prayer made in WPS No.6625 of 2018 are as follows:- 10.1 That, this Hon''ble Court may kindly be pleased set aside the impugned select list dated 19.09.2018 (ANNEXURE P/1) to the extent of declaring the persons ineligible having qualifications over and above prescribed in the advertisement and applicable statutory Rules and further be pleased to direct the respondents to issue fresh select list considering the candidature of the petitioners in accordance with their merit and law. 10.2 That, if any appointments have been made in furtherance of the impugned select list, this Hon''ble Court may kindly be pleased to issue a writ of quo-warranto against higher qualified candidates appointed in the post of Draftsmen and Assistant Draftsmen, in the interest of justice. 10.3 That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given. 4. The prayer made in WPS No.8807 of 2019 are as follows:- "(i) That, this Hon''ble Court may kindly be pleased to issue an appropriate writ/order/direction to the respondents and call for all the relevant records pertaining to the aforementioned recruitment process for selection in the post of Assistant Draftsman for the kind perusal of the Hon''ble Court. (ii) That, this Hon''ble Court may kindly be pleased to issue an appropriate writ/order/direction to the respondents thereby directing the respondents to issue a final selection list and thereby issue an appointment order in favour of the petitioner in accordance with law. (iii) That, any other relief which this Hon''ble Court may deem fit and necessary in the interest of justice may kindly be awarded. (iv) That the cost of the petition may kindly also be awarded to the petitioner." 5. For the sake of convenience, facts & pleadings raised and the documents filed in WPS No.6625 of 2018 are referred. 6. Challenge in this petition is to the selection list which was issued on 19.09.2018 on the ground that the selection list is published dehors the advertisement made and the applicable statutory service rules, therefore, the same requires to be struck down. 7. 6. Challenge in this petition is to the selection list which was issued on 19.09.2018 on the ground that the selection list is published dehors the advertisement made and the applicable statutory service rules, therefore, the same requires to be struck down. 7. Learned counsel for the petitioners would submit that initially an advertisement and the selection list for the selection of Draftsman/Assistant Draftsman for (i) Public Works Department (ii) Geology and Mining Department and (iii) Panchayat & Rural Development Department was issued. He would further submit that the appointment of the Draftsman for the Geology & Mining Department is governed by the Chhattisgarh Geology and Mining Grade III (Clerical and Non-Clerical) Rules, 2008 (hereinafter referred to as "the Rules, 2008"). Whereas the appointment of Assistant Draftsman in the Public Works Department is governed by Chhattisgarh Public Works Department (NonGazetted) Service Entry Rules, 2016 (hereinafter referred to as the Rules, 2016). 8. He would further submit that with respect to the appointment of the Draftsman in the Geology and Mining Department, the State at its para 10 & 11 of the return has admitted the fact that the requisite educational qualification as prescribed in the advertisement was a diploma in the Architecture or having certificate of draftsman in civil engineering from I.T.I. Whereas in the select list higher qualification than the qualification prescribed for the Geology and Mining Department has been considered. Therefore, the State has decided that for Geology and Mining Department no candidate having qualification other than the qualification prescribed in the advertisement would be allowed to be considered for appointment to the post of draftsman/assistant draftsman for such department. Therefore, no dispute exists with respect to the candidates who are named in the selection list in respect of the Geology and Mining Department. 9. He would further submit that the reply of the State would show that so far as the Public Works Department is concerned, it is stated that the minimum qualification has been prescribed, therefore, there cannot be two separate line of adoption for the appointment to the post of Assistant Draftsman in the Geology and Mining Department and for the Pubic Works Department. Consequently, since the State has taken two stands as have decided not allow the candidates having qualification other than the prescribed in the advertisement Annexure P-2 in the Geology and Mining Department and the same would be applicable in the case of the Public Works Department and other department. He would further submit that none of the persons, who are having higher qualification other than shown in advertisement were prescribed, therefore, the person having higher qualification that shown in the advertisement can be considered as it would be against the advertisement & service rules which are laid down for different department. He referred to the law laid down by the Supreme Court in the case of R and would submit that the selection committee during the stage of the selection in the midway could not have changed the essential qualification as laid down in the advertisement and therefore, could hold that the higher qualification would be eligible for appointment. 10. Per contra, learned State counsel would submit that the selection list is only provisional, therefore, the objections are still to be considered and the petition is premature. She would further submit that the reply has been filed by the State and in respect of the Geology and Mining Department it would be amended/modified as per rules. 11. Shri Animesh Tiwari, learned counsel for respondent No.3 would submit that he do not want to make any submission and would submit that the selection process was conducted by them and it is the State which has to appoint. 12. Learned counsel for respondent No.4 would submit that during the pendency of the writ petition, the respondent No.4 has committed suicide. 13. Shri Ghanshyam Kashyap, learned counsel for respondent No.5/intervener would submit that the petitioners have failed to array all the selected candidates as respondents because if the selection list is struck down, their right would also be affected, therefore, the present petition is required to be dismissed for mis-joinder of parties. He would further submit that even if the petition is allowed, the petitioners would not be in the merit list. 14. Shri Sharad Mishra, learned counsel for the interveners, would submit that the interveners are the aspirants for the appointment on the post of Assistant Draftsman in the Public Works Department and Panchayat & Rural Development Department and they can be appointed as they hold the minimum qualification. 14. Shri Sharad Mishra, learned counsel for the interveners, would submit that the interveners are the aspirants for the appointment on the post of Assistant Draftsman in the Public Works Department and Panchayat & Rural Development Department and they can be appointed as they hold the minimum qualification. He would submit that the interveners have not been arrayed as a party in the present writ petitions as such the petition is liable to be dismissed for non-joinder of parties. 15. Shri P.K. Bhaduri, learned counsel for respondent No.7 would submit that respondent No.7 is an aspirant to be appointed in the Panchayat & Rural Development Department for the post of Assistant Draftsman. The counsel would submit that Panchayat & Rural Development Department has not been arrayed as respondent though in the selection process appointment was for this department too. He went went through the reply of the State and would submit that the reply of the State is supported by affidavit of the Officer-in-Charge of the Public Works Department and the Geology and Mining Department and not of any officer-in-charge of Panchayat & Rural Development Department. It is contended that since the return is not supported by any officer of the Panchayat & Rural Development Department and writ petition is also silent of the fact about the appointments with respect to the Assistant Draftsman in the Panchayat & Rural Development Department no interference can be made for appointment to that department. He would further submit that the qualification of Assistant Draftsman to be appointed in the Chhattisgarh Panchayat & Rural Development Department are governed by the Schedule-III of the Chhattisgarh Development Commissioner Panchayat and Rural Development, Class III (Ministerial and Non-Ministerial) Services Recruitment Rules, 2011. He would further submit that for appointment to the post of Assistant Draftsman two years certificate course in draftsman (Civil) from ITI recognized by the State Government or Diploma in Civil Engineering OR Architect from any polytechnic OR higher technical qualification is required. Therefore, no bar is created for a person having a higher qualification to be appointed as Assistant Draftsman in the department of Panchayat and Rural Development. He would, therefore, submit that the claim of the petitioners that the selection of respondent No.7 dehors the advertisement is completely baseless and misconceived and the petitions deserve to be dismissed. Therefore, no bar is created for a person having a higher qualification to be appointed as Assistant Draftsman in the department of Panchayat and Rural Development. He would, therefore, submit that the claim of the petitioners that the selection of respondent No.7 dehors the advertisement is completely baseless and misconceived and the petitions deserve to be dismissed. He would further submit that the list having been published and the selected candidates have not been arrayed in this writ petition. He would further submit that the Panchayat and Rural Development Department has also not been arrayed as party respondent, wherein the respondent No.7 was eligible for appointment, therefore, the petition is liable to be dismissed for non-joinder of the necessary parties. 16. I have heard learned counsel for the parties and perused the documents. 17. The petitioners have impugned the select list dated 19.09.2018 (Annexure P-1). The advertisement was issued for combined recruitment of three departments of the State and the examination was conducted by the Chhattisgarh Professional Examination Board for the post of draftsman and assistant draftsman. The petitioners, respondents and the interveners participated in such selection process. The issue pertains to the appointment of assistant draftsman for the Public Works Department, Geology and Mining Department and Panchayat & Rural Development Department. In the advertisement Annexure P-2 for the Public Works Department the qualification which was advertised were as under:- 18. The Rules for the appointment to the Public Works Department are governed by the Chhattisgarh Public Works Department (Non-Gazetted) Service Entry Rules, 2016 and the qualification is shown as under:- 19. With respect to the Geology and Mining Department, the qualification for the Assistant Draftsman was advertised as under:- 20. The Rules for the appointment in the Geology and Mining Department are governed by the Chhattisgarh Geology and Mining Grade III (Clerical and NonClerical) Rules, 2008 for appointment of Assistant Draftsman (Civil) and the qualifications are shown as under:- 21. The State in its reply at para 11 has admitted the fact that it is decided by the Geology and Mining Department that no candidate having the qualification than the qualification prescribed in the advertisement and the departmental recruitment rules would be allowed for appointment on the post of Draftsman/Assistant Draftsman (Civil). The State in its reply at para 11 has admitted the fact that it is decided by the Geology and Mining Department that no candidate having the qualification than the qualification prescribed in the advertisement and the departmental recruitment rules would be allowed for appointment on the post of Draftsman/Assistant Draftsman (Civil). Therefore, with respect to the appointment of Assistant Draftsman in Geology and Mining Department, since the admission has been made by the State that the select list would be modificed/prepared according to the qualification prescribed in the advertisement and service Rules, no deliberation or adjudication is required on this issue. 22. With respect to the Panchayat & Rural Development Department, the petitioners have not arrayed the department except the respondent No.7, who was eligible to be appointed in such department. For the sake of brevity for appointment in the Panchayat & Rural Development Department the qualifications are prescribed in Schedule III of the Chhattisgarh Development Commissioner Panchayat and Rural Development, Class III (Ministerial and Non-Ministerial) Services Recruitment Rules, 2011. The relevant part of schedule III is reproduced hereinbelow:- (1) (2) (3) (4) (5) (6) 4. Assistant Draftsman --do-- --do-- 2 year certificate course in draftsman (civil) from ITI recognized by State Government or Diploma in Civil Engineering or Architect from any Polytechnic or higher technical qualification. 23. When the reply of the State is examined, it would show that the reply is supported by the affidavit of Madheshwr Prasad, Executive Engineer, Public Works Department and another affidavit of Jayant Kumar Pashine, Additional Director, Directorate of Geology and Mining. The petition and return is silent about the appointment with respect to the Panchayat and Rural Development Department, in which the respondent No.7 was selected. The Rules of 2011 specifically allow that any candidate with higher qualification can be appointed. The Rule itself prescribed that for appointment to the post of assistant draftsman other than the degree which is prescribed a person having a higher qualification can be considered. Therefore, in given facts, since the Rules allow the appointment of a person having the higher qualification itself, therefore, no impediment would arise for appointment to the Panchayat and Rural Development Department in respect of the respondent No.7. 24. Therefore, in given facts, since the Rules allow the appointment of a person having the higher qualification itself, therefore, no impediment would arise for appointment to the Panchayat and Rural Development Department in respect of the respondent No.7. 24. With respect to the appointment in the Public Works Department, the requisite qualification as per the rule are that a person should be a diploma in Architect or having certificate of draftsman in civil/electrical/mechanical engineering from Industrial Training Institute or certificate of surveyor in in commercial apprentice or having certificate of Industrial Council of Vocational Training (3 years). When the advertisement of the Public Works Department is examined, the same qualification has been prescribed. The prescribed Rules do not debar a person having a higher qualification as minimum qualification in the rules have been prescribed. It is not a case that the select list which is issued by the State contains the name of the candidates who are having less qualification than the minimum qualification prescribed in the rules and the advertisement. 25. The holding of the higher qualification of B.Tech degree clearly indicates and presupposes the acquisition of the lower qualification prescribed for the post which attracts the part of the Rule to the effect that those higher qualifications which presuppose the acquisition of the lower qualifications would be sufficient. It is the acquisition of the higher qualification in the same faculty, therefore, qualification can certainly be stated to be presuppose acquisition of lower qualification prescribed for the post. 26. The appointment Rules of Public Works Department, which prescribed the qualification, prescribed three categories and there is no ambiguity or vagueness noticed in prescribed qualification in the advertisement. The acquisition of B.Tech degree, which is a higher qualification, impliedly take within its sweep the required qualification, which is prescribed in the rule. Therefore the acquisition of higher qualification of B.Tech would be deemed to be a prescribed qualification, which the candidate is in hold to discharge the job on the basis of his qualification. Therefore, virtually there is no deviation from the prescribed qualification and knowledge as against the Rule or the advertisement for appointment in the Public Works Department. Therefore the acquisition of higher qualification of B.Tech would be deemed to be a prescribed qualification, which the candidate is in hold to discharge the job on the basis of his qualification. Therefore, virtually there is no deviation from the prescribed qualification and knowledge as against the Rule or the advertisement for appointment in the Public Works Department. There cannot be an omnibus presumption that a person having a higher qualification would be a bar for his consideration to be appointed and the State which is the appointing authority can always evaluate the qualification higher than the prescribed qualification whether is eligible or not. The higher qualification if presupposes acquisition of lower qualification prescribed for the post would be sufficient for the post as laid down by the Supreme Court in the case of R. 27. It is a well settled law as has been laid down in the case of Government of Andhra Pradesh Versus P. Dilip Kumar and another, (1993) 2 SCC 310 that classification on the basis of higher educational qualification to achieve higher administrative efficiency is permissible under our constitutional scheme. 28. The interveners have come up before this Court as their right would be affected by the decision in the present petitions. Admittedly they have not been made a party. Therefore, if the selection list in its entirety is set aside, certainly right of the interveners or the other selected candidates, who have not been arrayed, would be affected and if the select list is set aside, it would amount to passing the judgment almost without hearing them, which would also be contrary to the principles of natural justice. 29. In view of the aforesaid discussion, the petitioners are not entitled to any relief. Accordingly, the petitions fail and are hereby dismissed. However, it is observed that as has been admitted by the State in its return that with respect to the appointment of Assistant Draftsman in the Geology and Mining Department, the same would be modified according to the departmental recruitment rules of the Geology and Mining Department. No order as to costs.