Surjeet Phounsa vs J&K Service Selection Board And Others

Rajnesh Oswal, J

The appellant, having a qualification of Diploma in Automobile Engineering, applied against one of the two posts of Vocational Instructor (Motor Mechanic Trade) advertised vide notification No. 10/2013 dated 10.10.2013. The qualification prescribed for the post of Vocational Instructor (Motor Mechanic Trade) was matric with ITI/NTC (National Training Certificate) in Motor Mechanic Trade with preference to those candidates who had passed ATI (Advance Training Institute)/CTI (Central Training Institute) course in the relevant trade.

The appellant qualified the written test conducted by the respondents and was called for interview, but the interview of the appellant was not conducted for the reason that the appellant was found “Not Eligible” as was not possessed of the prescribed qualification. The appellant filed the writ petition bearing No. 1003/2016 and the learned writ court vide order dated 12.05.2016 permitted the appellant to appear before the committee for interview for the above-mentioned post at his own risk and responsibility. After the reply was filed by the respondents in the writ petition (Supra), the writ court vide order/judgment dated 30.11.2018 dismissed the writ petition on the ground that the Diploma in Automobile Engineering is neither a higher qualification than ITI/CTI Trade certificate, in the same trade nor a candidate, possessing Diploma in Automobile Engineering can claim presupposition of acquiring minimum qualification of ITI/CTI in the trade of Mechanic Motor Vehicle.

The appellant has preferred this intra-court appeal against the judgment dated 30.11.2018 on the following grounds:

(i) That the learned writ court has referred to the syllabus of Mechanic Motor Vehicle under Craftsmen Training Scheme and the skills which the Motor Mechanic would be able to perform , but the learned writ court has failed to consider that the same subjects were also taught in Diploma Course in Automobile Engineering.

(ii) That the Diploma Course in Automobile Engineering is an advance study but dealing with the same subject matter and the learned writ court has not considered that the subjects like chassis body and transmission 1 and 2 and auto-sensor and mechanitronics and auto-repair and maintenance and driving practice 1 and 2 includes theory and practical also, therefore, a diploma holder in Automobile Engineering also goes through the practical workshops where their skills are enhanced.

(iii) That the learned writ court has made an observation that the ITI course appears to be skill oriented whereas the Diploma in Automobile Engineering is not skill oriented but knowledge oriented, but a careful perusal of the syllabus of Three Years Diploma in Automobile Engineering would depict that the ratio of theory and practical in the whole curriculum is 50:50.

(iv) That the learned writ court has returned a finding that the person having diploma in ITI/CTI course in Motor Mechanic Trade does not have an option of entry in Three years Diploma in Automobile Engineering like a person who has diploma in particular branch of engineering, whereas a person having Diploma in Automobile Engineering can have a lateral entry in four years Degree course in engineering, which is incorrect as the person who has ITI diploma in a particular trade can also have a lateral entry in Three years Diploma Course in Automobile Engineering.

(v) That the respondent-board, in an information provided under RTI, has specifically mentioned the criteria to be adopted for conducting the written examination for the post of Vocational Instructor (Mechanic Motor Vehicle) conducted in 2015 and as per the information provided the criteria was Diploma in Automobile Engineering, whereas in the case of appellant, the respondents have rendered the appellant ineligible despite the fact that the appellant was possessing the same qualification, which was the qualification prescribed by the respondents for the subsequent selection process.

The appellant has placed on record the advertisement issued in the year 2015-16 for the post of Vocational Instructor (Mechanic Motor Vehicle) with one of the qualifications as Degree or Diploma in Automobile Engineering.

Mr. Abhinav Sharma, learned Senior Counsel appearing on behalf of the appellant submitted that the learned writ court has fallen in error while returning a finding that the syllabus of Mechanic Motor Vehicle under CTS is different vis-a-vis Diploma Course in Automobile Engineering and further that ITI course appears to be skill oriented, whereas the Diploma in Automobile Engineering is not skill oriented but knowledge oriented. He laid much stress on the Note No. 11 of the notification that provides for grant of higher weightage to the candidate possessing higher qualification. Learned Senior Counsel has relied upon the judgment of the Co-ordinate Division Bench of this Court in “Ramnik Singh and another Vs. Union Territory of J&K and others” passed in WP(C) No. 2406/2021.

Per contra, Mr. Raman Sharma, learned AAG appearing on behalf of the respondents submitted that the learned writ court has meticulously dealt with the contentions raised by the appellant by comparing the syllabus of Mechanic Motor Vehicle under Craftsmen Training Scheme with the syllabus of Three Years Diploma Course in Automobile Engineering and has rightly come to the conclusion that the composition of two courses is substantially and materially different though overlapping at same place. He further submitted that the appellant lacked the basic qualification prescribed for the post, as such, there is nothing wrong in rejecting the candidature of the appellant for the said post. He has placed reliance upon the judgment of the Hon‟ble Supreme Court of India in case of Zahoor Ahmad Rather v. Imtiyaz Ahmad, (2019) 2 SCC 404.

Heard and perused the record.

Admittedly the appellant does not possess any of the prescribed qualifications as mentioned above in the Advertisement Notification No. 10/2013 dated 10.10.2013. A perusal of the writ petition filed by the appellant i.e. the petitioner therein, reveals that the case projected by the appellant before the writ court was that the appellant was having a higher qualification and for the reasons best known to the respondents, interview of the appellant was not conducted. The learned writ court framed following question for its determination:

“Whether the qualification of diploma in automobile engineering is higher qualification in the same line of training as ITI/NTC in motor mechanic trade, therefore the possession of degree/diploma qualification in automobile engineering presupposed acquisition of ITI/NTC qualification in motor mechanical trade.”

The learned writ court proceeded to determine the above mentioned question by comparing the syllabi of Mechanic Motor Vehicle under Craftsmen Training Scheme with the syllabus of Three Years Diploma Course in Automobile Engineering and finally arrived at a conclusion that both the courses are substantially and materially different and ITI course appears to be skill oriented, whereas the Diploma in Automobile Engineering is not skill oriented but knowledge oriented and further that the Diploma in Automobile Engineering is not the higher qualification in same line of training as ITI/NTC.

It was urged by the learned Senior Counsel for the appellant that the stipulation 11 of the advertisement notification dated 10.10.2013 provides for award of higher weightage to the candidate possessing higher qualification. The Note 11 is reproduced as under:

“The prescribed qualification reflect the bare minimum requirement of the job and mere possession thereof shall not entitle a candidate to the called for written test/interview and also grant weightage to the higher qualification in relevant line/discipline as may be decided by the Board.”

A perusal of the stipulation mentioned above reveals that the Board may decide to grant weightage to the higher qualification in the relevant line/discipline. It is evident that the fixed qualification was prescribed for the post as Matric with ITI/National Training Certificate in Motor Mechanic Trade and it was not the minimum prescribed qualification, which could have enabled the candidates with higher qualification to participate in the selection process. Merely, the Note-11 vests the power with the Board to award higher weightage for higher qualification would not vest any right in the candidate with higher qualification to participate in the selection process.

The controversy involved in the present appeal is identical as was in the case of Zahoor Ahmad Rather v. Imtiyaz Ahmad, (2019) 2 SCC 404.

In Zahoor Ahmed‟s case, the qualification prescribed for the post of Technician-III was matriculation with ITI in Electrical Trade and the appellants were diploma-holders in Electrical Engineering/Electronics & Communication. Like the note No. 11 in the present case, there was Note No.12 in the matter before the Hon‟ble Supreme Court, which provided for award of additional weightage to higher qualification. The Hon‟ble Supreme Court of India rejected the case of the candidates who were diploma-holders by observing as under:

“25. The decision in Jyoti K.K, (2010) 15 SCC 596 has been considered in a judgment of two learned Judges in State of Punjab v. Anita , (2015) 2 SCC 170. In that case, applications were invited for JBT/ETT qualified teachers. Under the rules, the prescribed qualification for a JBT teacher included a Matric with a two years' course in JBT training and knowledge of Punjabi and Hindi of the Matriculation standard or its equivalent. This Court held that none of the respondents held the prescribed qualification and an MA, MSc or MCom could not be treated as a “higher qualification”. Adverting to the decision in Jyoti K.K. , this

Court noted that Rule 10(a)(ii) in that case clearly stipulated that the possession of a higher qualification can presuppose the acquisition of a lower qualification prescribed for the post. In the absence of such a stipulation, it was held that such a hypothesis could not be deduced :

“15. It was sought to be asserted on the basis of the aforesaid observations, that since the private respondents possess higher qualifications, then the qualification of JBT/ETT, they should be treated as having fulfilled the qualification stipulated for the posts of JBT/ETT Teachers. It is not possible for us to accept the aforesaid submission of the learned counsel for the private respondents, because the statutory rules which were taken into consideration by this Court while recording the aforesaid observations inJyoti K.K. case , permitted the aforesaid course. The statutory rule, in the decision relied on by the learned counsel for the private respondents, is extracted hereunder :

“6. Rule 10(a)(ii) reads as follows:

(a)(ii) Notwithstanding anything contained in these Rules or in the Special Rules, the qualifications recognised by executive orders or Standing Orders of Government as equivalent to a qualification specified for a post in the Special Rules and such of those higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post.

A perusal of the Rule clearly reveals that the possession of higher qualification would presuppose the acquisition of the lower qualification prescribed for the posts. Insofar as the present controversy is concerned, there is no similar statutory provision authorising the appointment of persons with higher qualifications.”

We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti K.K. in the subsequent decision in Anita . The decision in Jyoti K.K. turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. The decision in Jyoti K.K. turned on a specific statutory rule under which the holding of a higher qualification could presuppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench of the High Court was justified in reversing the judgment of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision of the Division Bench.

While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti K.K. turned.

Ms Wadia sought to draw sustenance from the fact that the holder of an ITI certification can obtain lateral entry to the diploma course. The point of the matter, however, is that none of the appellants fit the description of candidates who had secured an ITI certification before seeking a lateral entry to a diploma course.

Plainly, when an ITI with Matric is required, a person who does not hold that qualification is not eligible.

The submission based on Note 12, urged by Ms Wadia, cannot be accepted. The stipulation that the qualification prescribed is the bare minimum requirement of the job emphasises that it is an essential requirement, a threshold which cannot be dispensed with.

Under Note 12, the Board is entitled to assign additional weightage for a higher qualification. Whether such a weightage should be assigned is a matter for the Board to determine. The SSSB did not assign an additional weightage for a higher qualification. In not exercising an enabling power, no fault can be found with the SSSB. An enabling provision postulates a discretion which may or may not be exercised. A candidate has no vested right to assert that the Board must as a mandate assign an additional weightage to a higher qualification. Whether to do so or not is a matter for the Board to determine. All that Note 12 postulates is that the mere possession of the prescribed qualification will not entitle a candidate to be called for the written test or interview. The Board may shortlist among eligible candidates by granting a weightage to a higher qualification in the relevant line or discipline. But the words “as may be decided by the Board” in Note 12 indicate that the Board is vested with a discretion in pursuance of an enabling power which it may or may not exercise.”

(emphasis added)

The Hon‟ble Supreme Court of India in “Unnikrishnan CV v. Union of India”, 2023 SCC OnLine SC 343 has held that “It is trite law that courts would not prescribe the qualification and/or declare the equivalency of a course. Until and unless rule itself prescribes the equivalency namely, different courses being treated alike, the courts would not supplement its views or substitute its views to that of expert bodies”.

In absence of any rule as was in the case of Jyoti K.K considered by the Hon‟ble Supreme Court in the case of Zahoor Ahmad Rather (supra), it is not possible to draw inference in the instant case that a higher qualification of Diploma in Automobile Engineering presupposes the acquisition of lower qualification of ITI/NTC in Motor Mechanic Trade. So far as the judgment of the Co-ordinate Bench in case titled “Ramnik Singh & Anr. v. UT of J&K and Ors.” is concerned, it was rendered in the different facts and circumstances of the case, as in the said case, there was Government order dated 10.12.2018 prescribing the modification/revision of minimum qualification for the posts, which is not the case in the present appeal.

We have examined the judgment passed by the learned writ court and in view of what has been said and discussed above, we do not find it a case warranting interference by this Court. Accordingly, the appeal is dismissed being without there being any merit.