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Ravish Thakur v/s State Of Himachal Pradesh Through Additional Chief Secretary (Power)Goverment Of Himachal Pradesh, Shimla & Others

    Civil Writ Petition No. 5826 Of 2021

    Decided On, 04 January 2022

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE TARLOK SINGH CHAUHAN & THE HONOURABLE MR. JUSTICE SATYEN VAIDYA

    For the Petitioner: Shrawan Dogra, Sr. Advocate, Bharat Thakur, Tejasvi Dogra, Advocates. For the Respondent: R1, Ashok Sharma, A.G., Rajinder Dogra, Sr. Addl. A.G., Vinod Thakur, Addl. A.G., Rajat Chauhan, Law Officer, R2, Ishaan Kashyap, Advocate, R4, Babita Chauhan, Advocate, Legal Aid Counsel.



Judgment Text

1. The instant petition has been filed for the grant of following substantive reliefs:-

“i) That the reply Annexure P-12 denying the representation (Annexure P-11) made by the petitioner be quashed and set aside;

ii) That the Revised Evaluation Sheet Annexure P- 10/3 be quashed and set aside.

iii) That the respondent authorities may be directed to re-evaluate the candidature of the petitioner after awarding him marks against columns 3 and 11 of the Evaluation Sheet i.e., marks for Additional Qualification and marks for Work Experience in Government/Semi-Government organization and revise the Evaluation Sheet accordingly.

2. Petitioner completed his matriculation in the year, 2002 and thereafter completed his Diploma in Civil Engineering in the year, 2013. On 15.05.2016, petitioner started to work as Plant Manager at 1.35 MLD capacity Sewerage Treatment Plant Snowdon, which was outsourced to Engineer Tek Chand (Government Contractor and General Orders Supplier) by Shimla Jal Prabandhan Nigam Limited (SJNPL), an undertaking of the Government. Thereafter, the petitioner vide lateral entry completed his degree in Bachelor of Technology in Civil Engineering on 17.04.2017.

3. On 22.06.2020, the Medical Authority under the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India, issued disability certificate in the name of the petitioner certifying that petitioner is a case of 'Locomotor Disability' and that the diagnosis in his case was non-progressive. It was further mentioned that the petitioner has 80% permanent disability in relation to his brain, right leg and right arm.

4. On 17.08.2020, respondent-Corporation issued “Notice for Recruitment” inviting application from bonafide Himachalis for filling up five posts in Supervisory and Workmen Cadre (equivalent to Class-III posts in GoHP) from amongst the persons with Disabilities on contract basis. Out of five posts so notified, one post of Junior Engineer (Supervisory Trainee-Civil) was reserved for a person with locomotor disability, against which post the petitioner applied.

5. Respondent-Corporation issued call letter on 09.03.2021 regarding Counselling/Documentation for one post of 'Junior Engineer (Supervisory Trainee-Civil) in HPPCL on contract basis reserved for person with disabilities. The name of the petitioner, respondents No. 3 and 4 appeared at Serial No(s). 24, 6 and 17, respectively in the call letter.

6. Vide application dated 18.06.2021, the petitioner sought information under Right to Information Act, with regards to the details of the marks/evaluation awarded to the petitioner and the selected candidates against the post of Junior Engineer (Civil) locomotor disabilities-counseling held on 26.03.2021.

7. According to the petitioner, he was required to be accorded marks for additional qualification since he had not only possessed the diploma, which was essential qualification but also had a degree, which ought to have been treated as an additional qualification. That apart, the work experience gained by the petitioner ought to have been counted while working out merit. However, the contention of the petitioner was rejected vide letter dated 12.07.2021, the relevant portion whereof reads as under:-

“Since the essential qualification was either Diploma or Degree or AMIE therefore during the documentation/evaluation for the above post the marks of the B-Tech in Civil Engineering Degree, over Diploma was considered by the Selection Committee being higher in percentage between the qualification of Diploma and Degree Further, for clarity, it is submitted that the additional qualification has been considered as any other qualification over and above the essential qualification in the related discipline of the Civil Engineering. No any (sic) document to this extent has been provided by the applicant/ representational (sic).”

8. Aggrieved by the action of the respondents, the petitioner has filed the instant petition for the reliefs as set out above. We have heard learned counsel for the parties and have gone through the material placed on record.

9. At the outset, without even going into the question whether the experience gained with the contractor can be counted, we notice that even after granting the marks of experience to the petitioner of four years i.e. 0.4 marks for each completed years, the same would work out to only 1.6 and in case is added to the total marks of the petitioner i.e. 12.67, the total will work out to 14.27 marks as against the selected candidates who has obtained 14.34 marks.

10. Therefore, in this background, it is necessary for the Court to determine whether the petitioner is possessing a higher qualification, when he admittedly has only a diploma in Civil Engineering and a Degree in Bachelor of Technology and as per the advertisement essential qualification for the post applied as follows:-

“Diploma or Degree in Civil Engineering from a recognized Board/Institution University, established by law by the State/Central Govt. OR AIME from Institution of Engineer (India) (only those candidates who are enrolled fro AMIE with the Institute of Engineers (India) Kolkata with permanent recognition upto 31.05.2013 would be eligible).”

11. It has to be remembered that essential qualification for appointment to the post are for the employer to decide. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to the desirable qualification being at par with the essential qualification by an interpretive rewriting of the advertisement.

12. In coming to such a conclusion, we are duly supported by the judgment of the Hon'ble Supreme Court in Maharshtra Public Service Commission vs. Sandeep Shriram Warade and others (2019) 6 SCC 362, wherein in paragraph-9 it was held as follows:-

“9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Count cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”

13. It would be noticed that both Diploma and Degree have been prescribed to be only an essential qualification, therefore, treating the degree at a higher pedestal to diploma, and awar

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ding higher marks for the same is doing injustice for those persons, who only possess diploma. That apart, the same qualification i.e. Degree cannot be treated differently for the same purpose i.e. eligibility and an additional qualification or else, the same would lead to absurdity. 14. In such circumstances, we are clearly of the view that once the degree has been considered to be only a gate pass for prescribing it as eligibility, the same cannot be treated as a higher qualification that too only in the case of the petitioner simply because he happens to also have a diploma. 15. In view of the aforesaid discussion, we do not find any merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending applications, if any, also stands disposed of.
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