SANJAY KUMAR SAMAIYAR v. THE STATE OF BIHAR

The first submission of the petitioner is that the advertisement in so far as it confines eligibility to those possessing a degree from a recognized University in a discipline of Chemical Engineering or Production Engineering and its equivalent only, is contrary to the Bihar Labour Service (Technical) Rules, 1969 (hereinafter referred to as “the Labour Rules”) as amended by Gazette notification dated 28.8.1970. The submission is that by the amendment a degree from a recognized University in any branch of engineering, technology or its equivalent 2 was the qualification prescribed under the Rules. The proviso to the rules was limited in its application for a single vacancy alone as has been done in the case of Factory Inspector (Chemical), a sole vacancy. The requisition sent by the department to the B.P.S.C. did not lay down any such restrictive conditions of qualification as has been specified in the advertisement and therefore the advertisement is not only beyond the requisition but also violative of the rules. Counter affidavit has been filed on behalf of the State and the B.P.S.C. The affidavit of the latter explicitly states that by letter dated 11.6.2008 it sought certain clarification from the requisitioning department and the advertisement in its present form has been published after receipt of the clarifications by letter dated

26.8.2008. The Court considers it proper to quote the Labour rules which is the subject matter of the present controversy:- “In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Bihar is pleased to make the following amendments to rule 9(a) of the Bihar Labour Service (Technical) Rules, 1969, namely:- AMENDMENTS In Rule 9 of the said Rules:- (1) for sub-clause (a), the following sub-clause shall be substituted, namely:- (i) of clause (i) A degree of a recognized University in 3 any branch or engineering, technology or medicine or any other qualification recognized by the State Government by a notification in the Gazette to be equivalent to any of the abovementioned degree Provided that for any particular vacancy the State Government may specify any particular branch of engineering, technology or medicine depending upon the need of the Government” The need for engagement of personnel is a matter to be decided by the employer. The nature of the personnel required is again for the employer to decide based on his requirement. The expertise which the employer is looking for his purpose, is for the employer to decide as to what kind of person will prove useful for his requirement. The Courts can neither decide the requirement for personnel, nature of personnel required or the requisite expertise required. The condition of the advertisement is therefore exclusively the employer's prerogative. Once clarifications were sought from the B.P.S.C. and the advertisement has been published, this Court cannot rewrite the advertisement for the employer according to what the Court may think to be proper. This is the law in (2002) 6 SCC 252 (State of Rajasthan & ors. Vs. Lata Arun). If an advertisement violates the law and imposes conditions beyond what the law permits, the advertisement shall become arbitrary and be amenable to 4 the corrective powers of the Court. If the rules regulating the appointment and advertisement permit any leeway, and this Court prima facie finds no arbitrariness in the action of the respondents, it shall not be proper exercise of jurisdiction by the Court to call upon the respondents to explain by reasons why they are exercising the leeway. This flexibility in what is otherwise called play in the joint has to be permitted to the employer. The employer is at liberty to shift from one boundary to another. So long as he does not cross the boundary line, there is no occasion for the Court to interfere. The Labour rules in Sub Clause (i) of Rule 9 as amended recognized a degree in any branch of engineering or technology or its equivalent appointment. The proviso to that rule then leaves it to the State Government to specify any particular branch of engineering, technology for any particular vacancy depending upon the need of the Government. The employer therefore has been given the privilege in a particular situation, at a particular point of time, depending on its need, to decide from which branch of engineering it requires personnel at that point of time. This dose not derogate from the general provision recognizing any degree from any branch of engineering for appointment which is general in nature. The two exist 5 harmoniously. The general power subsists when according to the need it is narrowed down to some items of the general power only. The proviso does not go beyond the general power contained in the earlier part of the rule. This Court finds it difficult to accept the submission of the petitioner that the words “any particular vacancy” in the proviso has to be read as limited to an individual appointment only. At a particular point of time, the employer may need more than one personnel in a particular discipline or particular disciplines only. Such a requirement of the employer is not for the Court to assess or redefine but for the employer alone to do. If the the petitioner contends is correct and respondents are held down to the condition that if they specify a particular discipline only of engineering as eligibility, they must issue separate advertisements for each individual vacancy in such discipline, that would not only be cumbersome, but also doing violence to the rules by reading it in a completely unpracticable manner which was never intended by the framers. Before parting with the case this Court may only notice that the advertisement was published on

30.01.2009. The petitioner represented for his grievance on 1.2.2009. The last date for receipt of the application in the advertisement was 2.3.3009. The petitioner has 6 preferred this writ application on 24.3.2009 after the last date specified in the advertisement. The last date specified in the advertisement having been over, the applications having been received have to be considered on that basis. In addition to the aforesaid discussion, this Court additionally holds that it shall not be proper exercise of discretion and jurisdiction at this stage to upset the entire advertisement and require a de novo advertisement when the petitioner himself must take the blame for having applied after the last date prescribed for the receipt of the application also. Viewed from any aspect of the matter, this Court finds no merit in this application. It is accordingly dismissed. P. Kumar ( Navin Sinha, J.)