IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.896 of 2010 1. SUNIL KUMAR BHARTI S/O SRI PITAMBER PRASAD R/O AT+P.O. KATAIYA, P.S.SINGHESHWAR, DISTT-MADHEPURA 2. RANJEET KUMAR S/O LATE CHANDRADEO CHAUDHARY R/O VILL TETRI, P.S.NAUGACHHIYA, DISTT-BHAGALPUR. --------PETITIONERS-APPELLANTS. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA 2. THE PRINCIPAL SECRETARY, LABOUR RESOURCES DEPARTMENT GOVT. OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY, LABOUR DEPARTMENT PATNA 4. THE DIRECTOR, EMPLOYMENT & TRAINING DEPARTMENT BIHAR, PATNA. -------RESPONDENTS-RESPONDENTS. --------- For the appellants: Mr. D.K. Sinha, Sr. Advocate & Mr. Bijay Kumar Pandey, Mr. Amresh Kumar, Advocates. For the Respondents: Mr. Mani Kant Mishra, G.P.21. ----------- PRESENT : HON'BLE THE CHIEF JUSTICE HON'BLE JUSTICE MIHIR KUMAR JHA, ORDER (20/05/2010) As per Mihir Kumar Jha, J. 2 Heard counsel for the parties. 2. In this intra-Court appeal the appellants writ- petitioners have assailed the order dated 21.4.2010 passed by the learned Single Judge in C.W.J.C. No.5380 of 2010, whereby and whereunder, the direction sought 2 by the appellants writ-petitioners for their appointment on the post of Instructor (Fitter) has been rejected. 3. Mr. Devendra Kumar Sinha, learned senior counsel appearing on behalf of the appellants writ- petitioners has submitted that the learned Single Judge has fallen into an error in not accepting the case of the appellant writ-petitioners that they by virtue of having desirable qualification were better qualified than the candidates possessing bare minimum qualification prescribed in the advertisement. He has submitted that the grievance of the appellants writ-petitioners was tha in the process of selection they ought to have been given weightage in view of their better qualification. In this context he has placed reliance on the judgment of the Apex Court in the case of „Dr. Preeti Srivastava & Anr. Vs. State of Madhya Pradesh & Ors’ reported in AIR 1999 S.C. 2894 and in the case of „Munna Roy Vs. Union of India & Ors’ reported in (2000) 9 SCC 283. 4. Par contra, the learned counsel for the State supporting the order of the learned Single Judge has submitted that merely because the appellants writ- 3 petitioners had possessed desirable qualification in addition to the basic minimum qualification, that by itself could not have been clinched, inasmuch as, the process of selection in the advertisement itself was based on evaluation of comparative merit in the light of qualifications prescribed therein. It has also been sought to be explained by learned counsel for the State that the question of giving preference or weightage the candidates like the petitioners possessing desirable qualification could only arise if they were adjudged to have same merit in course of selection. 5. Having given our anxious consideration to the aforementioned submissions we are of the view that the learned Single Judge has rightly held that the qualification and/or norms of selection cannot be made subject matter of judicial review under Article 226 of the Constitution of India. We have also carefully perused the terms and conditions of the advertisement and we find that the essential qualification for the post of Fitter was matriculation with a completion certificate of course/training from I.T.I. The desirable qualification of 4 having passed in Principles of Teaching Examination from any Institute of DGET was only an additional qualification. It is well settled that when selection rules/norms provides for minimum qualification, there would be no bar in considering the cases of the candidates having higher qualification, but then if there is no provision in the advertisement for giving weightage of the higher qualification, the question of getting preference in the matter of appointment on the basis of higher qualification would not arise. 6. In the case in hand all the candidates were supposed to have the qualification of matriculation with a certificate of completing training in I.T.I. Therefore, if the cut off marks was fixed on the basis of the aforementioned technical qualification i.e. the marks secured in the I.T.I. examination that by itself cannot be said to be arbitrary. It is only when two candidates in the I.T.I. examination would have secured same marks then only an issue could have arisen for giving preference to one having desirable qualification. Admittedly, that is not the case, inasmuch as, those persons who have been 5 selected for the post of Fitter have obtained higher marks than the petitioners in the I.T.I. certificate course/examination. 7. Thus, in view of the advertisement giving no weightage for the desirable qualification, the selection committee could not have gone beyond the terms and conditions of the advertisement. We, accordingly, find no merit in the submission of learned counsel for the appellants writ-petitioners that no additional weightage was given to the appellants writ-petitioner for their possessing desirable qualification. 8. As with regard to the submission of Mr. Sinha that such selection ought not to have been made on the basis of the marks in I.T.I, one has to carefully understand the scope of Clause 10 of the advertisement which shows that the selection would be made on the basis of merit/written test/interview. The merit can definitely be judged on the basis of marks secured in the Common I.T.I. examination for the Fitter trade which had been made the basis for holding the selection. We are also not in agreement with his submissions that such 6 norms was fixed arbitrarily by the selection committee, inasmuch as, such procedure was available to the selection committee in terms of Clause 10 of the advertisement. 9. The reliance placed by Mr. Sinha on the judgment of the Apex Court in the case of Dr. Preeti Srivastava & Anr Vs. The State of Madhya Pradesh & Ors. reported in AIR 1999 SC 2894 is wholly misplaced. The said case, in fact, related to the admission in Post Graduate Course in the Medical College and the reservation for the Scheduled Caste and Scheduled Tribes for such admission under the Government policy. The concept of common entrance examination for the candidates having basic qualification of M.B.B.S. from the various Universities having no common examination and marketing pattern therefore could not have been made the sole criteria for the admission in the post graduation course in Medical colleges. 10. In that view of the matter, whatever has been said in the case of Preeti Srivastava in relation of admission in the Post Graduation in Medical College 7 would not apply in the appointment on the post of Fitter for which minimum qualification was uniform, i.e, matriculation with a certificate of passing the I.T.I. course in the concerned Trade of Fitter. The I.T.I. certificate examination is held by one body and its marks cannot be said to be varying standard. 11. In that view of the matter, if as per Clause 10 of the advertisement the selection was made by evaluating merit on the basis of marks of I.T.I. that cannot be said to be arbitrary in any manner. 12. Further reliance placed by the learned senior counsel for the petitioner on the order of the Apex Court in the case of Munna Roy Vs. Union of India & Ors reported in 2000(9) SCC 283 would also be of no help to the facts of the present case. In that case the Apex Court had found that for the post of Craft Teaching (Bengali Medium) in the advertisement issued by the Railways Recruitment Board, though the minimum qualification was matriculation, the petitioner Munna Roy being graduate was allowed to appear in the written test and interview and her selection was made whereafter the 8 Railways Recruitment Board cancelled the entire selection on the ground that the same was vitiated and tainted on the ground that for the post to be manned by matriculate a graduate candidate like Munna Roy was selected. In that context the Apex Court had held that if the candidates possessing higher qualification than the prescribed qualification were selected in common written test and interview then the authority cannot come to a conclusion that the selection has been made by adopting dubious methods. One would fail to understand as to how the said order of the Apex Court in the case of Munna Rai can be made applicable in the facts of the present case. It is not the case of the appellants writ- petitioners that they were selected and were subsequently edged out on account of their possessing desirable qualification. On the other hand, they have been selected because they had secured lesser marks in the I.T.I. examination than those who have been selected for the post of Fitter. 13. We, therefore, find no error in the order of the learned Single Judge rejecting the prayer of the 9 appellants writ petitioners for their appointment on the post of Fitter on the basis of their possessing desirable qualification. 14. Before parting with this case we must observe here that we have only approved the conclusion of the learned Single Judge to the following extent:- “In the facts, therefore, I find that the selection process is in accordance with law and the grounds that certain criteria were mentioned for the purpose of screening the candidates cannot be said to be criteria on which the selection ought to be made.” 15. We have said so because we do not approve the observation made by the learned Single Judge in the last paragraph which reads as follows:- “It is a different thing that this court does not appreciate the fact that the Government should make appointment on contractual basis when the posts are sanctioned by the State Government and there are vacancies in the department. It would be proper and in the interest of the State, that regular appointments should be made on such posts. Appointment made for a period of twelve months on contractual 10 basis is nothing but a waste of energy and time and also causes financial loss to the State Government. The department ought to consider filling up the post on a regular basis instead of having adhoc/stop gap arrangement in the aforesaid manner” 16. In our considered opinion such observation which was not within the scope of a writ application ought to have been avoided. In exercise of power under Article 226 of the Constitution, this Court can only go into the decision making process and not on the merits of the decision. It is absolutely open for the State/Employer to offer appointment either on a fixed term basis or on contract basis or by way of regular appointment. By making such observations this Court would take upon the function of the executive which has to only decide as to the manner in which such posts have to be filled up. There being infact no pleadings to this effect that there were permanent sanctioned posts available in the department, yet the Government has resorted to make appointment on contractual basis, such observations were, in fact, wholly uncalled for and therefore our dismissal of this appeal should not be taken to be 11 approving the aforesaid observations made in the last paragraph of the order. 17. Subject to our reservations indicated above as with regard to the last paragraph of the impugned order, this appeal being devoid of any merit is hereby dismissed. There would be, however, no order as to costs. (Dipak Misra, C.J.) (Mihir Kumar Jha, J.) Patna High Court Dated 20th May 2010 Abhay Kumar