IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 8852 of 2011-F. Reserved on: 12.12.2011. Decided on : 23.12.2011. _______________________________________________ Vikas Koushal, S/o Shri Chaman Lal, R/o VPO Garli, Tehsil Rakkar, District Kangra, H.P. …Petitioner. -Versus- 1. State of Himachal Pradesh through Secretary Panchayats to the Government of Himachal Pradesh. 2. The Deputy Commissioner, District Kangra. 3. Sub Divisional Magistrate Dehra Gopi Pur, District Kangra-Cum-Chairman of the Selection Committee. 4. Sh. Rajat Sharma, S/o Sh. Rajinder Sharma, R/o Village Barhoon, P.O. Nehran Pukhar, Tehsil Dehra, District Kangra, H.P. ….Respondents. Civil Writ Petition under Article 226 of the Constitution of India. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner : Ms. Jyotsna Rewal Dua, Advocate.For respondents No. 1 to 3 : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. For respondent No. 4 : Mr. Ashwani K. Sharma, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: According to the Press Note issued vide Annexure R-1, the applications were invited for filling up of 11 posts of Technical Assistants in Block Pragpur, Tehsil Dehra, District Kangra by 28th February, 2011. The respondent-State has issued a notification dated 7th April, 2008, whereby a detailed procedure has been given for filling up the posts of Technical Assistant. The minimum qualification prescribed vide Annexure P-1, is degree/diploma in 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - Civil Engineering from the recognized institution. The respondent- State has also issued a notification dated 17th December, 2008, vide Annexure P-4, whereby relaxation has been given in technical qualification for filling up the posts of Technical Assistant. It is evident from the perusal of Annexure P-4, dated 17th December, 2008 that in case the candidates are not available with prescribed technical qualification of degree/diploma in Civil Engineering, the selection could be made from candidates having qualification of Draftsman/Surveyor (Civil), for which permission has been granted vide letter dated 14.11.2008. It has been further provided therein that in case the candidate with this qualification is also not available, then the candidates possessing Architect degree could be appointed as Technical Assistants. Petitioner submitted his application on 24.02.2011 for considering his candidature for the post of Technical Assistant. He was possessing three years diploma in Civil Engineering. Petitioner was interviewed by a duly constituted selection committee under the Chairmanship of Sub Divisional Magistrate, Dehra on 11.05.2011. Petitioner has secured 50.29 marks in the interview and respondent No. 4 has secured 56.55 marks. Respondent No. 4 is lowest in the merit list as per notice placed at page No.- 38 of the paper-book. 2. Ms. Jyotsna Rewal Dua, learned counsel for the petitioner has vehemently argued that respondent No. 4 could not be considered for appointment by relaxing his educational qualification, since the petitioner with minimum qualification prescribed as per notification dated 7th April, 2008 was available. 3. The respondent No. 3 has filed a short affidavit. According to Mr. Vikas Rathore, learned Deputy Advocate General, - 3 - since the petitioner has only secured 50.29 marks, there is no illegality in the selection process. 4. Mr. Ashwani K. Sharma, learned counsel for respondent No. 4 has vehemently argued that his client was possessing even the minimum educational qualification, i.e., diploma in Civil Engineering as per notification dated 7th April, 2008. He has referred to Annexures R-D and R-G, respectively. He then argued that the final result of Technician Membership Examination (T. Engg.) (Equivalent to Diploma) was published on 28th February, 2011. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. According to notification dated 7th April, 2008, the minimum technical qualification prescribed was Degree/Diploma in Civil Engineering from a recognized institution. However, the rigours of minimum qualification was diluted vide letter dated 14.11.2008 read with letter dated 17th December, 2008, whereby in case the candidates are not available with prescribed technical qualification of degree/diploma in Civil Engineering, in that eventuality, the candidates possessing the qualification of Draftsman/Surveyor (Civil) could be considered for appointment as Technical Assistants. However, in case the candidate with this qualification is also not available, then the candidates possessing Architect degree could be appointed as Technical Assistants. 7. Petitioner was possessing three years diploma in Civil Engineering. The Court is of the considered view that it was only in the eventuality if the candidate was not available with the minimum qualification of Degree/Diploma in Civil Engineering - 4 - from recognized institution, there could be relaxation of educational qualification. In the instant case, the petitioner with minimum qualification was available while respondent No. 4 has been considered for the post in question. 8. Mr. Ashwani K. Sharma, learned counsel for respondent No. 4 has vehemently argued by referring to Annexure R-D that the result of Technical Membership Examination (T. Engg.) (Equivalent to Diploma) was declared on 28th February, 2011. According to him, this qualification has been recognized as per notification dated 6th November, 2007 by the Government of India. 9. The last date for receipt of applications as per Annexure R-1 was 28th February, 2011. Ms. Jyotsna Rewal Dua, learned counsel for the petitioner has drawn the attention of the Court to Bio-data submitted by respondent No. 4 at the time of submission of application. Respondent No. 4 has not annexed the copy of Annexure R-D alongwith his Bio-data. In fact, Annexure R- D has been issued on 27th April, 2011. Thus, there was no occasion for him even to file Annexure R-D alongwith the application. It is settled law by now that the candidate must possess the minimum educational qualification on the last date prescribed in the advertisement or as per the rules. In the instant case, the last date of receipt of application was 28.02.2011, on which date, the respondent No. 4 was not possessing Annexure R- D. In these circumstances, the selection committee could not consider the case of respondent No. 4 for the post of Technical Assistant. The respondent No. 4 could also not be considered for the post in question by relaxing his educational qualification for - 5 - the simple reason that the petitioner was available with minimum technical qualification of diploma in Civil Engineering. The minimum qualification was to be relaxed only if the candidate with the qualification of Degree/Diploma in Civil Engineering was not available. Petitioner has confined the challenge to the appointment of respondent No. 4 only, since he is at the bottom of the seniority list of selected candidates as per page No.- 38 of the paper-book. There is no merit in the contention of Mr. Vikas Rathore, learned Deputy Advocate General that since the petitioner has secured only 50.29 marks, there is no illegality in his appointment. However, the fact of the matter is that respondent No. 4 could not be considered for appointment to the post of Technical Assistant at all and, thus, there is no question of comparing the petitioner’s merit with him. 10. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure P-6 is quashed and set aside qua respondent No. 4. Respondents No. 1 to 3 are directed to consider the case of petitioner for appointment to the post of Technical Assistant in Block Pragpur, Tehsil Dehra, District Kangra, within a period of three weeks from the date of production of a certified copy of this judgment by the petitioner. Petitioner is entitled to costs of `5000/-. Pending application(s), if any, also stands disposed of. (Rajiv Sharma) Judge December 23, 2011. (bhupender) - 6 - - 7 -