Monday, October 3, 2022

Employer has right to determine qualification for job as per recruitment policy: Allahabad High Court

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The Allahabad High Court has rejected the Public Service Commission’s demand for inclusion of engineering degree holders in the practical examination of Regional Inspector (Technical) Recruitment 2014 and held that the employer has the right to determine the qualification, the prescription of qualification for a post is the matter of recruitment policy and Article 14 of the Constitution does not envisage negative equality.

A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing a petition filed by Abhishek Sharma And 3 Others.

The reliefs sought in writ petition are hereunder:

“(a) a writ, order or direction of a suitable nature commanding the respondents to permit the petitioners to participate in the practical examination for the post of Regional Inspector (Technical) to be held between 25.4.18 to 28.4.18 in pursuance to the Advertisement No. A-5/E-1/2014 dated 30.12.14 treating the petitioners as fully eligible for the said post;

(b) a writ, order or direction of a suitable nature commanding the respondents to treat the petitioners to be fully eligible for the post of Regional Inspector (Technical) on the basis of Bachelor’s degree in Mechanical Engg./ Mechanical & Automation Engineering possessed by the petitioners in terms of Section 213(4) of The Motor Vehicles Act, 1988 read with notification dated 12.6.1989 issued by Central Government.

(c) a writ, order or direction of a suitable nature commanding the respondents to permit the petitioners to participate in each stage of selection for the post of Regional Inspector (Technical) in pursuance to the Advertisement No. A-5/E-1/2014 dated 30.12.14 treating the petitioners as fully eligible for the same.”

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Ashok Khare, Senior Advocate assisted by Shantanu Khare, Advocate for petitioners, submitted that U.P Public Service Commission issued an Advertisement dated 30.12.2014 for Regional Inspector (Technical) Examination-2014 whereby applications were invited for 77 vacancies of Regional Inspector (Technical) (Unreserved 42, Scheduled Caste 18, Scheduled Tribe 02 and Other Backward Class 15).

Senior Advocate further submitted that the petitioners are aggrieved by Clause 11 of the said advertisement wherein essential educational qualifications are mentioned, whereby the petitioners who are higher qualified and have four years Bachelor of Technology Degree, still they are not eligible to appear in aforesaid examination as prescribed educational qualification is only Diploma in Automobile or Mechanical Engineering.

Senior Advocate argued that Section 213 of Motor Vehicles Act, 1988 provides provision for appointment of Motor Vehicle Officers and sub-clause (4) thereof provides as under:

“(4) The Central Government may, having regard to the objects of the Act, by notification in the Official Gazette prescribe the minimum qualifications which the said officers or any class thereof shall possess for being appointed as such.”

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Senior Advocate argued that Act, 1988 being a Central Act would have an overriding effect over the State Act, namely, the U.P Transport (Subordinate) Technical Service Rules, 1980 which governs the recruitment to the post of Regional Inspector (Technical).

However, the said qualifications are not prescribed to be as minimum qualifications as provided under the aforesaid notification issued under Section 213(4) of Act, 1988 and, therefore, the petitioners, who possessed the higher qualification of Bachelor of Technology Degree are estopped from participating in the aforesaid examination.

It is further contended that if the qualifications mentioned under the State Act are termed to be minimum qualification as mentioned in the Central Act then the petitioners who possessed higher qualification would be eligible to participate in the examination.

In support of above submissions Senior Advocate has relied on the judgment passed by Supreme Court in S. Satyapal Reddy and others vs Government of Andhra Pradesh and others (1994) 4 SCC 391 wherein it was held that the State Government may accept the qualification or prescribe higher qualification but in no case any qualification less than the qualification prescribed by the Central Government under sub-clause (4) of Section 213 of Act, 1988. The Supreme Court has further held that Graduation in Mechanical Engineering is one of the higher qualifications than Diploma.

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Per contra, Counsels appearing on behalf of private respondents, Intervenors and State-Respondents, have vehemently opposed the above submissions and relied upon the judgments passed by the Court in a bunch of cases leading being Deepak Singh and others vs State of U.P and others, 2019(7) ADJ 453.

Counsels also submitted that petitioners were well aware about the essential qualifications as amended in Rules, 1980, however they have never challenged the said Rules even before advertisement was issued as well in the writ petitions. Therefore, the argument that amended Rules, 1980 are not in consonance with Central Act is liable to be rejected.

The Court said that, in the backdrop of above referred facts and submissions on law, this Court has to decide, whether the word ‘minimum’ as used in the Central Act would also include all the higher educational qualification though the minimum qualification is only a diploma course and the qualifications mentioned in the State Rules where word ‘minimum’ is not used still the higher qualification may be considered to be an “essential qualification” (words used the State Rules) for the examination in question.

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The Court held that,

One of the main arguments from petitioners’ side is that Mechanical and Automation Engineering is a higher qualification in line to the Diploma in Automobile and Mechanical Engineering. However, a different view has been taken by Full Bench in Deepak Singh (supra). The legislature within its wisdom has not included the higher qualification to be eligible qualification in the examination for the post of Regional Inspector (Technical). It prescribed the essential qualification to be diploma in Automobile Engineering or Diploma in Mechanical Engineering only and not included the higher qualification, i.e, Bachelor of Technology Degree. Even the word used ‘minimum’ in the Central Act itself cannot be construed to the extent that even without mentioning any higher qualification in the notification the higher qualification ought to have been deemed to be included. For that purpose there shall be an amendment to this effect. However, there is no amendment in this regard in the Central Act. Therefore, the argument of the counsel for petitioners that essential qualification prescribed under Central Act is not in consonance with the qualification prescribed in the State Rules, appears to be factually incorrect.

This issue can be considered from a different angle also. The qualifications mentioned in pursuance of Central Act were prescribed in the year 1989, i.e, about more than three decades back. However, till date the Central Government has not amended the said notification by expressly including the higher qualification also. Therefore, in my view, State Rules and the educational qualification prescribed by way of notification by Central Act are similar and there is no repugnancy.

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“In view of above discussion on facts as well as on law the prayers made in all these writ petitioners are liable to be rejected, firstly on the ground that there is no repugnancy between qualification prescribed by notification issued under Act, 1988 and Rules, 1980, as mended with regard to selection on the post of Regional Inspector (Technical); secondly, the cases are squarely covered by the judgment passed by Full Bench of the Court in Deepak Singh (supra) wherein it was held that Diploma in Engineering and Degree in Engineering are to distinct qualifications and the decree in the field in question cannot be viewed as a higher qualification without comparing to Diploma in that field; thirdly, considering the above referred judgments passed by Supreme Court, that in absence of any statutory rule it would not be permissible to draw an interference that a higher qualification necessarily presupposes the acquisition of another lower qualification, fourthly, that prescription of qualification for a post is the matter of recruitment policy and lastly Article 14 of the Constitution does not envisage negative equality”

-the Court observed while dismissed of the writ petitions.

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