SCA/21752/2007 1/45 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.21752 of 2007 With SPECIAL CIVIL APPLICATION No.21754 of 2007 To SPECIAL CIVIL APPLICATION No.21771 of 2007 With SPECIAL CIVIL APPLICATION No.22350 of 2007 To SPECIAL CIVIL APPLICATION No.22352 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 To be referred to the Reporter or not? 3 Whether Their Lordships wish to see the fair copy of the judgment? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? 5 Whether it is to be circulated to the Civil Judge? ========================================================= = AMALIYAR JAYESHKUMAR VICHIYABHAI & ORS. - Petitioners Versus STATE OF GUJARAT & ORS. - Respondents ========================================================= = Appearance : MS SEJAL K MANDAVIA for Petitioners MR SS SHAH, GP with Ms.Sandhya Natani, M/S.Vinay Pandya, Prashant Mankad, Mr.Amit Patel, Mr.Hukum Singh, AGPs for Respondent Nos.1-2 MR AMAR D MITHANI for Respondent No.3. SCA/21752/2007 2/45 JUDGMENT ========================================================= = CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 05/09/2007 COMMON ORAL JUDGMENT 1. Heard learned advocate Ms.Sejal K. Mandavia on behalf of the petitioners and learned Government Pleader Mr.S.S.Shah with learned Assistant Government Pleaders Ms.Sandhya Natani, Mr.Vinay Pandya, Mr.Hukum Singh, Mr.Amit Patel and Mr.Prashant Mankad, appearing for the respondent-State Authorities. 2. In this group of petitions, prayer made in paragraph 7(A) is to quash and set aside the Government Policy dated 13th September 2001 along with the guidelines of calculation of marks by holding that it is unjust, arbitrary and violating the fundamental rights of the C.T.I. Candidates and, therefore, it should be struck down. The prayer 7(B) is to hold that for the post of Craft Instructors, the C.T.I. candidates are more qualified and they should be given preference and priority, for that the calculation of the marks decided by the Government may also be quashed and set aside. Pending the SCA/21752/2007 3/45 JUDGMENT petitions, a prayer is made to grant stay against the operation, execution and implementation of the new policy dated 13th September 2001 along with guidelines and to restrain the respondents from preparing the selection list and giving the appointment pursuant to the advertisement (Annexure-D) relying upon the new policy. 3. The Policy dated 13th September 2001 is placed on record (Annexure-A, Page 19). Ms.Sejal Mandavia, learned advocate for the petitioners, pointed out Schedule-I at Page 22 of the petition and submitted that as per Item No.2, ITI and apprenticeship passed candidate is entitled to 0.20 X A [SSC Marks] + 0.27 x B [ITI Marks] + 0.53 x C [Marks of Apprentice Training of 2 Years]. Ms.Mandavia also referred to Item No.4 on Page 23, which relates to diploma holders and calculation for diploma holders for the post in question is as under: 0.20 x A [SSC Marks] + 0.80 x D (Diploma Marks] x Q, which includes minimum passing marks in ITI/ATI minimum passing marks in ITIATI Q = ------------------------------- minimum passing marks in diploma SCA/21752/2007 4/45 JUDGMENT [357/700] = --------- = 1.418 [36/100] She further referred to Item No.4 on Page 24, which provides that additional five marks is to be given to diploma holder. Therefore, she submitted that there is discrimination between the CTI and diploma holder and while drafting the policy, the department has not considered the candidates of CTI equivalent to diploma holders and the diploma holders have been given preference by the department. She, therefore, submitted that chance of selection for CTI Candidates will decrease or less in comparison to the diploma holders. Ms.Mandavia further submitted that in formula, CTI marks are not added nor taken into account and “Q” benefit must be given to the petitioners, which has not been given by the department. According to her submission, the whole method of selection while preparing the selection list on the basis of educational qualifications passed by the candidate is arbitrary, capricious and requires to be quashed. She also submitted that initially before this policy, there was written test SCA/21752/2007 5/45 JUDGMENT and interview and thereafter, selection was made on the basis of educational qualifications, which was a reasonable procedure and method adopted by the department. This change in policy has adversely affected the right of the petitioners for the post of Craft Instructor. Except these, no other submissions are made by Ms.Mandavia, learned counsel for the petitioners and no decision is relied upon by her. 4. Learned Assistant Government Pleader Ms.Sandhya Natani appearing with other Assistant Government Pleaders for the respondent–State Authorities has filed a detailed affidavit-in-reply, a copy of which is served to the petitioners' advocate. According to the learned Assistant Government Pleader, the advertisement was published in Gujarat Samachar Daily and other newspapers on 8th August 2007 for 237 posts of Kaushalya Sahayak and 20 posts of Group Kaushalya Sahayak and the application was to be submitted till 31st August 2007, but the said date for inviting application is now extended further to 29th September 2007. The answer given by the department to the contention raised by the SCA/21752/2007 6/45 JUDGMENT petitioners that the petitioners have grievance against the “Q” i.e. [Quotient = minimum passing marks in ITI-ATI / minimum passing marks in diploma = (357/700)/(36/100) = 1.418] which is given to diploma holder, is that the said quotient is given to equalize the diploma holders with the ITI passed as the qualification of diploma is more higher compared to the qualification of ITI. According to the respondents, in Recruitment Rules, it is very specifically mentioned that preference shall be given to a candidate who in addition possesses instructors training at the Central Training Institute or diploma holders in the appropriate branch in the trade concerned. The said Recruitment Rules of 23rd December 1969 are annexed to the reply. It is submitted that the State Government has passed resolution dated 13th September 2001 considering the said Recruitment Rules and published the guidelines regarding the merit formula for the post of Kaushalya Sahayak and Group Kaushalya Sahayak and also specifically classified the criteria for the selection of candidates for ITI pass or apprenticeship pass, ITI + apprenticeship pass or diploma. Multipliacation is given according SCA/21752/2007 7/45 JUDGMENT to the qualification and the weightage of the course. In the said Government Resolution, it is mentioned that additional five marks is required to be given to the candidates, who have passed CTI Course and the diploma course as per the required preference mentioned in the Recruitment Rules. According to the respondents, the diploma course is more wide and higher compared to the ITI Course and the percentage for passing the diploma course is 36% while the percentage required for passing ITI course is 51% and, therefore, considering the passing qualification for the eligibility criteria for selecting the candidates for the post of Kaushalaya Sahayak, diploma candidate would not get opportunity to get selected as their passing percentage is only 36% and the merit for selection of the passed candidates would be more favourable for the candidates who are from ITI. It is submitted that, therefore, with an intention to give a preference for the higher qualification some additional weightage is required to be given to the candidates who are higher qualified. Moreover, looking to the merits for diploma engineering course, nearby 75% to 80% is SCA/21752/2007 8/45 JUDGMENT required for admission while there is no such higher percentage is required for ITI admission. There are total 145 institutes for the ITI all over the Gujarat and each institution has its own merits/percentage criteria for admissions, which is very low as compared to Diploma Engineering. The merit for admission in diploma engineering for the year 2006- 2007 is also annexed to the reply. According to the respondents, ITI candidate is limited/restricted with only a particular subject such as; ITI with wireman, ITI with electrical; ITI with armature motor rewinding; while an electrical diploma is itself qualified for all trades and, hence, in the advertisement if a fitter, turner, machinist or a general mechanic is required then only one diploma with mechanical or diploma production engineer will be eligible for all the mechanical trades while ITI candidate cannot be eligible as he will be restricted only for his particular trade such as only for fitter, turner, machinist and general mechanic. According to the respondents, the spectrum for diploma engineer is broader compared to the spectrum for ITI pass candidate. A diploma holder is having a SCA/21752/2007 9/45 JUDGMENT very wide range and can be adjusted/compensated in any of the trades whenever is required. In the advertisement, the groups for which the candidate is required are elaborately described in Columns 1, 4, 8 and 10, which are quoted as under: Trade Diploma Engineer ITI 1. Fitter, Turner, Machinist, General Mechanic Diploma in Mechanical or Production Engineer ITI Fitter, ITI Turner, IT Machinist, ITI General Mechanic 4. Electrician, Wireman, Amateur Motor Rewidner Diploma in Electrical Engineer ITI Electrician, ITI Wireman, ITI Amateur Motor Rewinder 8. Mechanic Autoelectronic, Two wheeler Autorepair, Driver-cum- Mechanic Diploma in Automobile Engineer Only ITI Mechanic Autoelectronic, ITI Two Wheeler, Autorepair, ITI Driver cum Mechanic 10. Cutting & Sewing, Embroidery & Needle work, dress making, computer aided dress making and dress design, men's and women garment making, apparel Diploma in costume designing & dress making only / computer aided costume design and dress making ITI Cutting & Sewing, ITI Embroidery & needle & needle work, ITI dress making, ITI computer aided dress making and dress design, ITI men's and women garment making, ITI apparel SCA/21752/2007 10/45 JUDGMENT 5. Learned Assistant Government Pleader Ms.Sandhya Natani also pointed out that similar matter had been filed earlier before this Court challenging the same Government Resolution/Formula, which was rejected by this Court vide order dated 19th April 2002. In the reply, the answer given to the question raised by the petitioners that what is the meaning of “Q” and why “Q” is applying in the case of the diploma holder candidates, is that “Q” is nothing but selection for balancing the meritorious candidates. The respondents have clarified that the syllabus of the diploma holder candidate is certainly higher as compared to the ITI candidates/present petitioners. The learned Single Judge has observed in order dated 19th April 2002 that the formula worked out by the authority is just and fair, preference should be given for higher qualification and some additional weightage is to be given to the higher candidates. Learned Assistant Government Pleader Ms.Natani particularly pointed out that merely a weightage is given to the higher qualified person, which would not automatically entitled the said candidates to be selected to the post in question and SCA/21752/2007 11/45 JUDGMENT to be appointed. The decision of the learned Single Judge is annexed to this reply by the respondents. Learned Assistant Government Pleader Ms.Natani also submitted that ITI is limited and restricted to only one trade while diploma holder is having a broad spectrum/range and qualification level is also much more higher than the ITI Candidates. Therefore, some preference is required to be given to the diploma holder according to the Recruitment Rules and the Policy. Learned Assistant Government Pleader Ms.Sandhya Natani submitted that there is no arbitrariness or discrimination between the petitioners and the diploma holders. 6. In Special Civil Application No.11944 of 2001 and allied matters, this Court examined the same policy. Though the policy was not challenged before the learned Single Judge by those petitioners, the calculation of giving marks including the weightage to the diploma holder has been examined by this Court in order dated 19th April 2002 and 4th May 2002. In the said decision, this Court in detail examined merits and observed in paragraphs 3, 6 and 7 as SCA/21752/2007 12/45 JUDGMENT under: “3. The petitioners are the persons who possess the qualifications for appointment to the post of Craft Instructor in Industrial Training Institute (ITI) run and managed by the State Government. In addition to the requisite qualification, the petitioners also possess the preferential qualification of Advanced Training Institute (ATI)/Central Training Institute (CTI). The petitioners, therefore, claim that having regard to the preferential qualification possessed by them they ought to be given priority in the matter of selection for appointment to the post of Craft Instructor. However, the selection has been made in contravention of the relevant rules. The candidates who do not possess the preferential qualification are selected while the petitioners who possess such qualification are not selected. This point, however, has not been pressed at the time of hearing, advisedly so. The issue has been considered by me in the matter of PATEL NIKUNJKUMAR MAVJIBHAI v. DIRECTOR OF EMPLOYMENT AND TRAINING (Special Civil Application No.6623/01 decided on 21st March, 2002). The priority claimed by similarly situated candidates has been negatived. Considering the relevant recruitment rules and provision made regarding preference to be given to the candidates possessing the above referred preferential qualification I have held that, "the language of the above proviso is clear and unambiguous. It should necessarily mean that other things being equal the candidates possessing the additional qualification of certificate of Central Training Institute or the diploma shall be preferred. The said proviso can not be construed to mean that so long as the candidates possessing the additional qualification referred to in the aforesaid SCA/21752/2007 13/45 JUDGMENT proviso are available, other candidates though are otherwise eligible should not be considered for selection. The claim of priority made by the petitioners, therefore, requires to be rejected." “6. There is a basic fallacy in the submission of Mr.Oza. Mr.Oza has vehemently argued that the petitioners were subjected to a written test and an oral interview. Having done so the merits of the petitioners acquired at such written test and the oral interview have not been considered. In fact, neither of the petitioners nor any other candidate has been subjected to written test. On the contrary, an averment is made in the petition that though the petitioners were called for interview, in fact the petitioners were not interviewed i.e. No questions were put to the petitioners but their mark-sheets and other certificates were verified. Upon inquiry, the petitioners had learnt that the interviews were mere formality and the appointments were to be given on the basis of the merit alone. Hence, it is apparent that even at the time of petition, the petitioners were aware that the merit alone was the criterion for selection. The submission, therefore, does not hold water and requires to be rejected. As regards the wider exposure it cannot be gain-said that a public advertisement would offer opportunity to a larger number of candidates. However, the selection can not be said to be bad or be set aside only on the ground that the public advertisement was not given and the names of the eligible candidates were requisitioned from the Employment Exchange Office. 7. On the above facts, the judgments relied upon by Mr.Oza shall have no applicability. The said judgments deal with a situation where the selection were made in accordance SCA/21752/2007 14/45 JUDGMENT with the existing recruitment rules. However, subsequent amendment to the rules rendered the selected candidates ineligible and such candidates were non-suited on the ground of their ineligibility under the amended/revised rules. Here is not the case where the petitioners are non-suited on the ground of their eligibility. Here is the case where the petitioners have not been selected on the basis on their comparative merits. Further, on perusal of the above referred Government Resolution dated 13th September, 2001, it appears that the formula worked out takes into consideration the additional / preferential qualification possess by the petitioners and such other candidates i.e. the candidates have been given marking for their basic qualification and also additional marks for the preferential qualification or higher qualification. Thus, the formula worked out by the respondent authorities also appears to be just and gives a fair consideration to the candidates having preferential qualification also. The judgment of the Hon'ble Supreme Court in the matter of SECRETARY (HEALTH) DEPARTMENT OF HEALTH AND F.W. (supra), the Hon'ble Court had an occasion to consider a similar matter. In the said matter, the Public Service Commission had issued advertisement for appointment to the post of Dental Officers. In the advertisement, it was clearly stipulated that the minimum qualification for the post was B.D.S. It was also stipulated that preference should be given for higher dental qualification. There was no dispute that M.D.S. is a higher qualification than the minimum qualification required for the post. The selection of Dental Officers made pursuant to the said advertisement was challenged on the ground that the writ petitioner who had the qualification of M.D.S. was entitled to be selected on the basis of higher qualification. The claim was negatived by SCA/21752/2007 15/45 JUDGMENT the Hon'ble Court. The Hon'ble Court held that, "the question then arises is whether a person holding a M.D.S. qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage is to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed." 7. The learned Assistant Government Pleader Ms.Natani submitted that the aforesaid decision of the learned Single Judge was challenged in Letters Patent Appeal No.653 of 2003 and other Letters Patent Appeals. The Division Bench [Coram: G.S.Singhvi, J (as he then was) and Anant Dave, J.] dismissed the said group of Letters Patent Appeals by order dated 6th May 2005 confirming the decision given by the learned Single Judge. According to learned Assistant Government Pleader Ms.Natani, the said contentions, which are raised by the petitioners, are already considered by this Court and the decision rendered by the learned Single Judge is confirmed by the LPA SCA/21752/2007 16/45 JUDGMENT Bench and, therefore, no further challenge is to be entertained and considered by this Court. 8. I have considered the submissions made by both the learned advocates. Ms.Mandavia, learned advocate for the petitioners, submitted that the comparison, which has been made in reply by the respondents, is with reference to ITI and not to the CTI and the CTI is having higher qualification than the diploma and that in the petitions filed before the learned Single Judge, as referred to above, selection list was under challenge and the policy was not challenged. In LPA decision, it was kept open for the appellants to challenge the policy as and when contingency arises. No doubt, that was kept open for those appellants, who were before the Division Bench and not for other persons. Meaning thereby, it is kept open for those appellants who were before the Division Bench and not for other persons, which include the present petitioners. Apart from that, the petitioners have challenged the policy before this Court. SCA/21752/2007 17/45 JUDGMENT 9. The contention raised by learned advocate Ms.Mandavia for the petitioners is that CTI Course is higher than diploma course, but no basis is pointed out on what basis she submitted that the CTI course is higher than diploma course. The department while considering the course of CTI as well as diploma decided that both were entitled to preference marks (Item No.4, Page 24), and CTI is entitled to five marks and diploma holder is also entitled to five marks. Therefore, in calculation, in real sense, there is no discrimination between the CTI and diploma holders. Both the course are getting preference and also getting five marks in calculation. On page 25, Paragraph 7 where the calculation was considered, it is mentioned that out of total mark so obtained, cumulatively five marks per trial could be deducted if the candidate has taken more than one trial in obtaining any one of the certificates, i.e. SSC or National Trade Certificate or National Apprenticeship Certificate. Similarly, additional five marks per year would be deducted for those diploma holders who have taken more than stipulated period of diploma i.e. 3 years. Page 26 is SCA/21752/2007 18/45 JUDGMENT the letter of Additional Director, Employment & Training Department, to the Joint Secretary, Labour & Employment Department, Gandhinagar, dated 23rd November 2006 wherein it is specifically made clear by giving reference of the meeting with the Chief Secretary, that for the recruitment to the post of Craft Instructor, minimum diploma or degree qualification is to be considered necessary because Craft Instructor has to give training to the students and, therefore, he must be possessing higher qualification in comparison to the students, who are to be taught by the Craft Instructor. This benefit would be available from the degree/diploma holder candidates and such candidate can give good training to the students of COE, Short Term Module Training, and merit is also to be maintained while giving training to such students. Therefore, opinion was given by the Additional Director that for the post of Craft Instructor, minimum education qualification of diploma/degree holder is required to be maintained and accordingly, the Recruitment Rules is amended. There is one another letter from the Director of Employment & Training Department addressed to SCA/21752/2007 19/45 JUDGMENT Principal Secretary, Labour & Employment Department dated 4th July 2006 wherein this question has been examined in detail in the light of the earlier decision given by the learned Single Judge as referred above. The Committee was constituted to consider the question whether CTI is to be preferred or diploma holder is to be preferred and the Committee has given opinion, which is on Pages 46, 47 and 48. There is no injustice in merit system or calculation to the candidates of CTI/ATI. The merit system or calculation as per the Government Policy dated 13th September 2001 is considered to be proper, reasonable and valid. The Committee has considered the ITI/Apprentice and CTI/ATI passed candidates having knowledge of a particular field, but diploma holder is having knowledge of each branch and, therefore, he is able to give good training and to maintain merits while giving training to such students. The Committee has given opinion that the formula, which was prepared in policy dated 13th September 2001, is considered to be proper. However, the Committee has also considered 3 diploma/degree candidate against 1 CTI/ATI passed candidate, meaning SCA/21752/2007 20/45 JUDGMENT thereby 3:1 recruitment is to be made between the Diploma/Degree holder and the CTI/ATI. This letter was written because of letter given by one Mr.Yogeshkumar D. Patel and others, who were CTI/ATI. Except these, no other documents are produced on record by the petitioners. 10. In view of the aforesaid details, the weightage is given to the diploma holder in the policy. While preparing the policy, percentage has been made specifically clear in reply that how much percentage is required by the diploma holder, CTI, ITI. 11. In the light of this background, the question is whether this Court can interfere with such policy, which has been framed with application of mind and taking care of candidates of CTI/ITI/Diploma holders. Learned advocate Ms.Mandavia for the petitioners is not able to point out before this Court that CTI is higher than the diploma holder. However, in reply of the respondents, specific averments are made that ITI is one of the SCA/21752/2007 21/45 JUDGMENT qualifications, but CTI is a training course and diploma holder is also an independent educational qualification course, but the respondents have considered both the course together and that the diploma holder is higher qualification and requires weightage. Accordingly, the weightage has been given by the department in calculating marks for such candidates. 12. Learned advocate Ms.Mandavia appearing for the petitioners, at this stage, submitted that to have admission in CTI, a person must pass