S. Gurmeet Singh and Others vs State and Others

J.P. Singh, J.—These four writ petitions, raising common questions of law and facts, heard together on existing pleadings with the consent of

learned Counsel for the parties, have been taken up for joint disposal.

The facts have been taken from SWP No. 1184/2006.

FACTS:

The Jammu and Kashmir Services Selection Board (hereafter 'The Board' for short), had invited applications for filling up twenty (20) posts of

Motor Vehicle Inspectors vide its Advertisement Notice No. 10 of 2005 dated 29th of December, 2005. The minimum qualification prescribed

for the posts is Diploma in Automobile Engineering/Mechanical Engineering having atleast five years experience in any recognized Institution or

State Transport Undertaking. The Board had, however, later issued Corrigendum dated 21-02-2006 published on 22-02-2006, indicating

modification in the qualifications required for the posts of Motor Vehicle Inspectors, in terms of the provisions of the Motor Vehicles Act, 1988.

The modification so notified, reads thus:

(1) Minimum general educational qualification of a pass in X standard and

(2) (i) a diploma in Automobile Engineering (3 years Course) or

(ii) a diploma in Mechanical Engineering awarded by the State Board of technical Education (3 years course) or

(iii) any qualification in either of the above discipline declared equivalent, by the Central Government or State Government.

(3) Working experience of at least one year in a reputed automobile workshop which undertakes repairs of both light motor vehicles, heavy good

vehicles and heavy passenger motor vehicles fitted with petrol and diesel engine and

(4) Must hold a driving licence authorizing him to drive motor cycle, heavy goods vehicles and heavy passenger motor vehicles.

The corrigendum had further provided for modification of the short listing criteria and follow up action in its Notification No. 11 of 2005 dated 29-

12-2005 as under:

(1) Weightage for the basic technical qualification

with one year experience = 60

(2) Degree (B.E) in relevant Discipline = 10

(3) M.E. in the relevant discipline = 10

(4) Viva-voce = 20

The writ petitioners, holding Bachelor of Engineering Degree in Automobile Engineering/Mechanical Engineering, besides possessing other

requisite qualifications in terms of the Board's Corrigendum, had applied for seeking consideration for selection against the advertised posts of

Motor Vehicle Inspectors. They, however, have been denied opportunity to compete for the advertised posts by the Board on the ground that

they did not possess Diploma in Automobile Engineering/Mechanical Engineering, the minimum prescribed qualification for the posts of the Motor

Vehicle Inspectors and were as such ineligible for the advertised posts.

Aggrieved by the action of the Board in holding them ineligible to compete for the posts of Motor Vehicle Inspectors, the petitioners have filed

these writ petitions saying that they possess higher qualification of Bachelor of Engineering in Automobile Engineering/Mechanical Engineering and

were thus eligible to compete for the posts of Motor Vehicle Inspectors.

The case projected by the petitioners in their writ petitions, in nutshell, is that their possessing higher qualification of Bachelor of Engineering,

cannot be treated as dis-qualification to make them ineligible to compete for the advertised posts because Bachelor of Engineering, which being a

much higher qualification to that of Diploma in Engineering would include their having acquired lower qualification of Diploma in Engineering too, in

the relevant discipline.

Whereas the State Government, while supporting the case of the writ petitioners, have in their reply affidavit, stated that possessing of higher

qualification of Bachelor of Engineering by the petitioners makes them eligible to compete for the advertised posts and that a Communication too

stands issued by it to the Chairman, Jammu and Kashmir Services Selection Board on 18-07-2007 in this behalf to consider the petitioners for the

advertised posts; the Board has, however, come up with the plea that the petitioners are ineligible to compete for the posts of Motor Vehicle

Inspectors in view of the Central Government's S.O. 443(E) dated 12th June, 1989 which prescribes Diploma in Engineering as the minimum

qualification for the class of officers consisting of the category of Inspectors of Motor Vehicles or Assistant Inspectors of Motor Vehicles, and in

terms of the Notification so issued u/s 213(4) of the Motor Vehicles Act, the Board was under obligation to prescribe the said qualification and

adhere thereto while making selection to the posts of Motor Vehicle Inspectors.

The Board, in nutshell, therefore says that the petitioners do not hold the Diploma in Automobile Engineering (three years course) or Diploma in

Mechanical Engineering awarded by the State Board of Technical Education (three years course), which is the basic minimum qualification

prescribed for the post, and in that view of the mater they were ineligible to compete for the posts.

Those seeking intervention in the writ petitions, too support the stand taken by the Board and thereby oppose the candidature of the petitioners

for seeking consideration for selection to the posts of Motor Vehicle Inspectors.

I have considered the submissions of learned Counsel for the parties and the interveners, made at the Bar.

The short question which thus falls for consideration is, as to whether Degree in Automobile Engineering/Mechanical Engineering, possessed by

the petitioners, makes them eligible to compete for the posts of Motor Vehicle Inspectors, advertisement in regard whereto prescribes only

Diploma in Automobile Engineering/Mechanical Engineering as the minimum qualification.

To appreciate the issue, it needs to be Considered as to whether Degree in Automobile Engineering/Mechanical Engineering is a higher

qualification to that of Diploma in Automobile Engineering/Mechanical Engineering, the prescribed qualification for the posts of Motor Vehicle

Inspectors. Another issue which may arise in the case for consideration is, as to whether prescribing of minimum qualification for a post would

debar those possessing higher qualification to compete for the advertised posts.

Although the Corrigendum issued by the Board providing for 10 additional points to those possessing Degree in Automobile

Engineering/Mechanical Engineering, clearly demonstrates that the Board had treated Degree in Engineering in the relevant discipline as a

qualification, higher to that of Diploma in Engineering, yet the question arising in the case, as to whether Degree in Engineering is a higher

qualification may need deeper insight on the issue.

In order to ensure proper planning and coordinated development of the Technical education system throughout the country, the promotion of

qualitative improvement of such education in relation to planned qualitative growth and for the regulation and proper maintenance of norms and

standards in the technical education system and for matters connected therewith, the Parliament of India, has enacted the All India Council for

Technical Education Act, 1987, providing for the constitution of a Council by the name of All India Council for Technical Education. Looking to

the powers and functions of the Council, as provided in the Act, it is abundantly clear that it is only the Technical Council constituted under the Act

which governs inter alia, the programme of education, research and training in Engineering, Technology, Architecture etc, And the Technical

Institutions imparting such education, meaning thereby that the Rules, Regulations and Notifications issued by All India Council for Technical

Education, are guiding factors to determine the quality and the higher/lower status of the Degrees/Diplomas which the Technical Institutions

governed by All India Council for Technical Education Act, 1987, issue in this respect.

During the course of hearing of these petitions, it was brought to my notice that the All India Council for Technical Education has been issuing

various Notifications, which would demonstrate that the Council has been treating Degree in Engineering to be a higher qualification to that of

Diploma in Engineering and it was precisely for this reason that it had treated those possessing Diploma in Engineering, eligible to have lateral entry

in the second year of the Degree course of Engineering. One of such Notifications issued u/s 23(1) of the All India Council for Technical Education

Act, 1987 and published in Government Gazette Notification dated July 11,1992, refers to the guidelines for lateral admission of the Diploma

holders to the degree courses. Yet another Notification on the similar lines stands issued by All India Council for Technical Education on

12.1.2007, few paragraphs whereof are being quoted hereunder to appreciate the status of Diploma holders viz-a-viz Degree holders in the

discipline of engineering. These paragraphs reads thus:

No. F. 37-3/Legal/2007: In exercise of the powers conferred by Sub-section (1) of Section 23 read with Section 10(b), (o) & (v) of the All India

Council for Technical Education Act, 1987 (52 of 1987), following Regulations are hereby notified by the Council:

(1) sort title and commencement:

(a) These Regulations may be called the All India council for Technical Education (AICTE) admission of students in Degree Engineering

Programmes through lateral entry Regulations 2007.

(b) They shall come into force w.e.f. the date of publication in the Official Gazette of India.

(4) Applicability:

These Regulations shall be applicable to:

(a) All technical institutions of Govt., Govt. Aided and Private (Self financing) conducting courses/programs in the fields of technical, training and

research in Engineering, Technology including MCA, Architecture, Town Planning Management, Pharmacy, Hotel Management & Catering

Technology, Applied Arts & Crafts and such other programs and areas as are notified by the council from time to time.

(b) Universities including Deemed to be Universities of Government, Government Aided and Private (Self financing) conducting course/programs in

the fields of technical education, training and research in Engineering, Technology including MCA, Architecture, Town Planning, Management,

Pharmacy, Hotel Management & Catering Technology, Applied Arts & Crafts and such other programs and areas as are notified by the Council

from time to time.

Requirement:

Under Section 10(o) of AICTE Act, it shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and

integrated development of technical and management education and maintenance of standards and for the purposes of performing the functions

under this Act, the Council may provide guidelines for admission of students to technical institutions and Universities imparting technical education.

6.1. ADMISSION OF DIPLOMA HOLDERS INTO SECOND YEAR DEGREE ENGINEERING PROGRAPPMES THROUGH LATERL

ENTRY

6.1 (a) Admission of Diploma Holders

Although engineering diploma programmes are conceived as terminal in nature, some flexibility has to be built in to enable the meritorious amongst

diploma holders to obtain Engineering degrees. There is evidence of diploma holders pursing an Engineering programme having performed well not

only in their academic careers but also in their jobs.

6.2 (b) Eligibility:

For being to seek lateral entry to an Engineering degree programme at the second year/third semester level, a candidate must have passed the

Degree in Science (B. Sc.,), with Mathematics as a subject and with a minimum of 60 percent marks in the aggregate. Only candidates fulfilling

these conditions would be eligible for appearing in the entrance test meant for selection of B. Sc, graduates for Lateral entry to an Engineering

degree programme. The selection of candidates will be based on an entrance test, the merit ranking in the test being the basis of admission.

Perusal of Clause 6.2 (b), in particular, and other above quoted clauses of the latest Notification, referred to hereinabove, and Notification

issued by All India Council for Technical Education, New Delhi, prior thereto clearly demonstrates that the All India Council for Technical

Education, has been treating Degree in Engineering as a higher qualification to that of Diploma in Engineering and it is because of this reason of their

treating Degree as higher qualification to Diploma in Engineering, that the Technical Council had contemplated providing chance to meritorious

diploma holders to have lateral entry to the four years Degree course of Engineering. Although Diploma in Engineering is a terminal programme in

technical education and in some service rules is the minimum prescribed qualification for non-gazetted posts, yet All India Council for Technical

Education, has treated it equivalent to some extent only to the second year of the four years Degree course of Engineering by considering only

those meritorious students of the terminal course of Diploma in Engineering with 60% marks eligible to compete in the entrance examination

prescribed for getting lateral entry in the second year of the four years Degree Course in Engineering.

The Notifications issued by the All India Council for Technical Education thus indicate that the Council treats Degree in Engineering as a mark

of distinction conferred upon a student for proficiency in Engineering and the proficiency so considered is of a far higher degree than that of

Diploma in Engineering.

A Degree conferred by a University, going by definition of the expression in various Dictionaries, is a proof of the fact that a person had studied a

course of a particular higher level and had successfully passed the examination certifying his proficiency in the said subject of study to such level.

The State Government too has been treating persons having title of Degree in a particular subject to have attained higher level of proficiency in the

concerned subject than that of a Diploma holder which may be gathered from various statutory rules framed by the State Government for its

various services u/s 124 of the Constitution of Jammu and Kashmir.

In view of All India Council's treating Degree in Engineering to be a higher qualification to that of Diploma in Engineering, and the above

discussion on the subject, it may be concluded that Degree in Engineering is a higher qualification to that of Diploma in Engineering. The petitioners,

who are holders of Degree in Automobile Engineering/Mechanical Engineering, have thus to be treated as persons holding higher qualification in the

concerned discipline of Engineering than that of the Diploma holders in the relevant discipline, the minimum qualification prescribed for the posts of

Motor Vehicle Inspectors. These graduates in Engineering shall be accordingly deemed to have undergone the course of Diploma in Engineering in

the relevant discipline too, and cannot, thus be treated to be ineligible to compete for the posts of Motor Vehicle Inspectors merely because they

hold qualification higher than the minimum prescribed qualification of Diploma in Automobile/Mechanical Engineering.

I therefore, do not find any justification in Board's rejecting the candidature of the petitioners to compete for the posts of Motor Vehicle

Inspectors. In taking this view, I am supported by the judgment of Hon'ble Supreme Court of India in Jyoti K.K. and Ors. v. Kerala Public

Service Commission and Ors. reported as JT 2002 1 SC 85, where their Lordships of Hon'ble Supreme Court of India say as follows:

is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant rules, the same cannot be in any manner

whittled down and a different qualification cannot be adopted.

The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification

prescribed for that post in order to attract that part of the rule to the effect that such of those higher qualifications which presuppose the acquisition

of the lower qualifications prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same

faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may

not be necessary to seek far. Under the relevant rules, for the post of Assistant engineer, degree in electrical engineering of Kerala University or

other equivalent qualification recognized 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. 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

qualification, either this rule should have excluded in respect of candidates who possess higher qualification 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 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 every one concerned with such appointments will be aware of the rules before or make himself aware of the rules before making

appropriate applications. The High Court, therefore, is not justified in holding that recruitment of appellants would amount to fraud on the public.

Plea of the Board that the petitioners who do not possess Diploma in Engineering, the minimum qualification prescribed for the posts of Motor

Vehicle Inspectors, are ineligible for the posts of Motor Vehicle Inspectors, is found to be without any substance. It is accordingly rejected.

I do not find merit in yet another submission of Board's counsel that the State Government was required to issue a notification in case it had

decided to treat Degree in Engineering as a qualification equivalent to the one prescribed in corrigendum dated 21.02.2006 and Notification No.

S.O. 443(E) dated 12th June, 1989 and in the absence of any such notification of the State Government, Degree in Engineering cannot be treated

to be equivalent to that of minimum prescribed qualification of Diploma in Engineering.

Equivalence contemplated by the corrigendum and S.O. 443(E) dated 12th June, 1989, is only regarding those courses of studies in

engineering, which the State Government or the Central Government may consider equivalent to the courses of studies prescribed for Diploma in

Engineering. No notification for treating a higher qualification as equivalent qualification to the inferior qualification, may thus be warranted in terms

of the corrigendum and notification issued by the Central Government under the Motor Vehicles Act, 1988.

Petitioners additional plea in SWP No. 1184/2006 that they are entitled to higher weightage than the candidates possessing Diploma in

Automobile Engineering, during Board's consideration for preparing list pf short-listed candidates, does not appear to be tenable because the

Board appears to have provided for (10) additional points only for those candidates possessing Degree in Engineering after their having

successfully undergone Diploma in Engineering Course, taking into consideration the experience acquired by these Bachelors of Engineering. Those

possessing merely Bachelor of Engineering Degrees, cannot thus claim to be similarly situated with those candidates who had acquired Bachelor of

Engineering Degree after having successfully undergone Diploma in Engineering course. I, therefore, do not find any merit in petitioners' submission

for giving them higher weightage regardless of their having done Diploma in Engineering before acquiring Degree in Engineering.

For the foregoing reasons, these writ petitions succeed and the action of respondent-Board in treating the petitioners as ineligible to compete

for the posts of Motor Vehicle Inspectors is held to be bad in law. The short list prepared by the Board, ignoring the petitioners from consideration

for the posts of Motor Vehicle Inspectors, is resultantly quashed.

A direction shall accordingly issue to the Jammu and Kashmir Services Selection Board, Jammu to treat the petitioners-degree holders in

Automobile Engineering/Mechanical Engineering eligible to compete for the advertised posts of Motor Vehicle Inspectors. The Board may

accordingly proceed with the selection process treating the petitioners eligible for the posts and preparing a fresh short-list on the basis of its

advertised criteria.

These writ petitions are accordingly allowed.