Writ Petition No. 5313 of 2024 · Bombaybench High Court
Case Details
2024:BHC-AUG:30700-DB WP 5271 5313.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 5313 OF 20241] Shekhar S/o. Kaduba More, Age : 22 years, Occu : Private Service, R/o. At Post Katpur, District : Aurangabad2] Arjun S/o. Digambar Rathod, Age : 34 years, Occu. : S.T. Service, R/o. Vishira Tanda, Dist : Beed3] Anil S/o Jairam Thakare, Age : 37 years, Occu : S.T. Service, R/o. Uday Colony, Aurangabad, Tal. & District : Aurangabad4] Sachin S/o. Ambadas Adik, Age : 31 years, Occu. : S.T. Service, R/o. Dongaon, Tal. Kannad, District : Aurangabad5] Rajabhau S/o. Uttam Sutar, Age : 41 years, Occu : S.T. Service, R/o. At Post Pungari, Tal. & District : Parbhani6] Akash S/o. Satilal Suradkar, Age : 29 years, Occu : Private Service, R/o. Mohan Kh. Tal. Sillod, District : Aurangabad7] Satale Chetan Virabhadra @ Chetan S/o. Virbhadra Satale Age : 31 years, Occu : S.T. Service, R/o. Uday Colony, Aurangabad, Tal. & District : Aurangabad8] Aakash S/o. Malachand More, Age : 23 years, Occu : Private Service, R/o. At Post Vihamandava, Tal. Paithan, District : Aurangabad9] Ajay S/o. Dnyaneshwar Kale, Age : 23 years, Occu : Private Service, R/o. At Post Takali Ambad, Tal. Paithan, District : Aurangabad1/26
Legal Reasoning
WP 5271 5313.odt10] Akash S/o. Sanjay Ghate, Age : 24 years, Occu. : Private Service, R/o. At Post Shevata, Tal. Paithan, District : Aurangabad11] Imtiyazuddin S/o. Moinoddin Kazi, Age : 34 years, Occu : Private Service, R/o. White House, Bhandar Galli, Old Bazaar, Beed, Tal. & Dist. : Beed12] Mahesh S/o. Ganehs Magar, Age : 22 years, Occu : Private Service, R/o. Daudgaon, Tal. Aundha, District : Hingoli .. Petitioners Versus1] The State of Maharashtra, Through its Secretary, Vocational Education & Training, Mantralaya, Mumbai – 322] The Director General Training (DGT) Ministry of Skill Development and Entrepreneurship Employment Exchange Building, Library Avenue PUSA Complex, New Delhi – 110 0123] The Director of Vocational Education, & Training / DVET, Maharashtra State, Mumbai – 1 Office at Municipal Corporation Road, Mumbai – 400 0114] Vishal Balkrushna Tayade Age : 29 years, Occu : Student, R/o. Shivajinagar, Mehkar, Tq. : Mehkar Dist : Buldhana – 443 3015] Pramod Ashok Bansode, Age : 32 years, Occu : Student, R/o. Plot No. 139, Sahyadrinagar, Satara Parisar, Aurangabad Tq. Aurangabad Dist : Aurangabad ... Respondents…Mr. Sameer Vaidya h/f. Mr. B.N. Magar, Advocate for petitioner Mr. S.B. Deshpande, Senior Advocate along with Mr. M. K. Goyanka, AGP &Mr. Shreyas Deshpande, Advocate for respondents no. 1 and 3 : Mr. R.R. Bangar, Advocate for the respondent no. 2Mr. Avinash S. Deshmukh, Advocate for respondents no. 4 and 52/26 WP 5271 5313.odt…WITHWRIT PETITION NO. 5271 OF 20241] Rameshwar Vishwanath Hadbe, Age : 32 years, Occu : Service, R/o. At Hadbewadi, Post Ujani, H.No. 756, Mhada Murtijapur, Tq. Ambajogai, Dist. Beed2] Krushna Nathrao Phad, Age : 28 years, Occu : Nil, R/o. At Post Dharampuri, Tq. Parali, Beed3] Ajinkya Anil Mohite, Age : 30 years, Occu : Service, R/o. ‘Devdan’, Plot No. 4, Near Masoba Temple, Vasantnagar, Kupwad, Sangli – 416 4164] Yogesh Anil Khandagale, Age : 24 years, Occu : Service, R/o. At Post Toka, Tq. Newasa, Dist. Ahmednagar 414 6035] Rajesh Ankush Ghuge, Age : 29 years, Occu : Service, R/o Nirmiti Samriddhi Apartment, Vaman Nagar, Jule, Solapur – 413 0046] Nitin Balasaheb Durgude, Age : 29 years, Occu : Nil, R/o. Ganeshwadi, PO. Khednagar, Ahmednagar7] Mahindra Keshavrao Kedare, Age : 29 years, Occu : Nil, R/o. At Palshi Khu-Post-Palshi Bu, Tq. Kannad, VTC, Palshi, Dist. Chh. Sambhajinagar8] Vinod Yeshwant Shelke, Age : 43 years, Occu : Service, R/o. Nanchanwel, Kannad, Dist. Chh. Sambhajinagar9] Ganesh Manohar Naik, Age : 31 years, Occu : Nil, R/o. C/o. Bhushan Vyaghrambare,3/26 WP 5271 5313.odt Raghveer Nagar, Canal Road, Balapur Naka, Old City, Akola Versus1] The State of Maharashtra, Through its Secretary, Ministry of Skill Development and Entrepreneurship Development, Mantralaya, Mumbai2] Directorate of Vocational Education and Training, Maharashtra State, Through its Director.3] Mahapalika Marg, Post Box No. 10036, Mumbai – 400 0013] Rushikesh Sanjay Khedkar, Age : Major, Occu : None, R/o. Aurangabad Division (Allotted)4] Rakesh Sakharam Snap, Age : Major, Occu : None, R/o. Aurangabad Division (Allotted)5] Wanve Krushna Dagdu, Age : Major, Occu : None, R/o. Pune Division (Allotted)6] Sagar Rohidas Bhadane Age : 27 years, Occu : Service, R/o. Nashik (Allotted Region, Pune)7] Sushant Mohan Patil, Age : 35 years, Occu : Service, R/o. At Post : Rethare Dharan, Walwa, Dist. Sangli – 4154078] Rutika Raj Godbole, Age : 26 years, Occu : Service, R/o. Ganesh Nagar Road, Y Point, Shivajinagar, Nanded – 4316029] Abhijeet Shankar Tate, Age : 31 years, Occu : Service, R/o. Near Thote Diary, At Post. Ashta, Tq. Walwa, Sangli – 416 30110] Apporva Sadashiv Teli,4/26 WP 5271 5313.odt Age : 27 years, Occu : Service, R/o. 9/51/6, Mahasatta Chowk, Amrai Road, Ichalkaranji, Tq. Hatkanagale, Kolhapur – 416 11511] Nitesh Madhukar Phalake, Age : 38 years, Occu : Service, R/o. Jadhav Aali, Samaj Mandir, At Post Saspade, Satara – 415 51912] Abhijeet Rajendra Raut, Age : 34 years, Occu : Service, R/o. Vijay Shircho’k Colony, Kathora Road, Near Rangoli Lawn, Amravati – 444 60413] Kiran Manoj Masram Age : 28 years, Occu : Service, R/o Ward No. 1, Behind Devrao Patil School, Nandanwan Colony, Arni, Tq. Arni, Yavatmal – 445 10314] Vaibhav Shrikant Jadhav Age : 31 years, Occu : Service, R/o. At Post Shendri, Gadhinglaj, Kolhapur – 416 50215] Manoj Ratilat Patil, Age : 35 years, Occu : Service, R/o. Plot No. 93, Prashant Nagar, Korit Road, Nandurbar – 425 412 .. Respondents ANDCIVIL APPLICATION NO. 9577 OF 2024 IN WP/5271/2024(The State of Maharashtra through its Secretary and anotherVersusRameshwar Vishwanath Hadbe and others)…Mr. Ajay S. Deshpande, Advocate for petitionersMr. S.B. Deshpande, Senior Advocate along with Mr. Chetan Choudhari Advocatei/b. Mr. R.S. Wani, AGP for respondents no. 1 and 2 and for applicant in CA/9577/2024Mr. S.R. Barlinge, Advocate for respondents no. 4 to 6Mr. Avinash S. Deshmukh, Advocate and Mr. Rahul R. Avhad, Advocate forrespondent no. 3Mr. Sangharsh V. Waghmare, Advocate for respondents no. 7 to 15…5/26 WP 5271 5313.odtCORAM: MANGESH S. PATIL & PRAFULLA S. KHUBALKAR , JJ.RESERVED ONPRONOUNCED ON::12.11.2024 (WP 5271/2024) & 22.11.2024 (WP 5313/2024)20.12.2024JUDGMENT : ( MANGESH S. PATIL, J.)Heard. Rule. Rule is made returnable forthwith in both the matters. 2.Learned AGP and the learned advocates for the respective respondentswaive service. At the joint request of the parties, both the matters have beenheard together since they are putting up a challenge to the commonjudgment and order of the Maharashtra Administrative Tribunal, bench atAurangabad dated 10-05-2024 in Original Application nos. 1120 of 2023and 145 of 2024 with Miscellaneous Application no. 87 of 2024. 3.The issue arises out of the advertisement published by the Directorateof Vocational Education and Training, dated 17-08-2022 for filling in 1457posts of Craft Instructors in the Industrial Training Institutes (ITIs) acrossthe state, in respect of 48 different trades.4.While publishing the advertisement, requisite educationalqualification and experience was prescribed pursuant to the The CraftInstructors, Class III in Industrial Training Institutes and Basic Training andRelated Instruction Centers in the Department of Technical Education(Recruitment) Rules, 1983 (hereinafter ‘Recruitment Rules of 1983’) framedby the State of Maharashtra under Article 309 of the Constitution of India.The requisite qualification prescribed was Diploma in appropriate branch ofEngineering. In clause no. 8.1 of the advertisement, it was stipulated thatthe candidates possessing higher qualification in respective trades, would beconsidered eligible. It is this clause, which is the bone of dispute.5.As per clause 15.23 of the advertisement, the verification ofdocuments of the candidates enlisted in the merit list was to take place. It6/26 WP 5271 5313.odtcontemplated publication of provisional select list as well as final selectionlist but no lists were ever published. It was alleged that the applicantsbefore the tribunal were kept in dark resulting in lack of knowledge aboutpublication of selection list. It is only after circular dated 15-01-2024 inrespect of the document verification was issued, that they became awarethat candidates possessing only graduation (B.E.) were held eligible, evenwhen they were not having prescribed qualification of diploma in respectivetrades. It was also alleged that the stipulation in the advertisement in clauseno. 8.1 was merely a declaration to the effect that higher qualification wouldnot be treated as a disqualification but was not intended to dispense withthe essential requirement or prescribed qualification of diploma in secondclass in respective trade. The Recruitment Rules of 1983 were not intendedto be diluted. The persons who were holding merely B.E. qualification wereselected ignoring that they were not possessing minimum qualification ofhaving a diploma in the respective trade. Questioning such selection list, thepetitioners from writ petition no. 5271 of 2024 filed original applicationno. 145 of 2024.6.Reliance was also placed on the decision of the High Court in thematter of Milind Shantilal Rathod and others Vs. The State of Maharashtraand others (writ petition no. 8568 of 2022 - dated 30-01-2023).7.The petitioners from writ petition no. 5313 of 2024 preferred theOriginal Application no. 1120 of 2023 and merely put up a challenge to theadvertisement no. 01/2022 on the ground that the qualification mentionedin the advertisement was not as per the Recruitment Rules of 1983. Theyalso questioned the equalization method adopted while assigning the marks.8.The state opposed the original applications with a basic contentionthat clause no. 8.1 of the advertisement was not contrary to the RecruitmentRules of 1983. It declared that candidates possessing higher qualification inthe related stream, would be considered eligible. The clause was never7/26 WP 5271 5313.odtchallenged by the original applicants. They participated in the process andare now putting up a challenge belatedly as an afterthought. Once havingparticipated in the recruitment process without demur they were estoppedfrom challenging the advertisement. It was also contended that higherqualification cannot be a disqualification. It presupposes having skills of thelower qualification. It was a matter of policy. The clause has been applieduniformly and no fault can be found in the preparation of the select list. 9.The private respondents who are the selected candidates also opposedthe original applications on the same line as was done by the State.10.Some of them raised issue regarding limitation. They contended thatthe original applications ought to have been filed within one year. But werefiled belatedly without even seeking condonation of delay. Theadvertisement was published on 17-08-2022. It should have been challengedwithin one year from that day. They also contended that as per clause 15.22(iv) of the advertisement, it was notified that in case the candidates scoringequal marks, in terms of sub-clause (i), (ii) and (iii) of clause 15.22, acandidate having higher qualification would be held eligible. It was,therefore, contended that holding of higher qualification was neverconsidered to be a disqualification.11.Accepting the stand of the state and the private respondents, thetribunal concluded that the state as an employer, was entitled to prescribequalification or eligibility after taking into account the nature of the job andthe requisite aptitude for efficient discharge of the work. It also held thatthe decision cited on behalf of the petitioners in the matters of MilindShantilal Rathod (supra) and Sangram Ramdas Gholve and others Vs. TheState of Maharshtra and others; 2016 (5) ARB 783, were not applicable topetitioners’ case. Referring to Dipti Samaddar V. Steel Authority of IndiaLtd.; 1996(5) SLR 117, it held that the government could prescribe higherqualification than that is prescribed by the rules. It also referred to thedecision of the Supreme Court in Munna Roy V. Union of India; JT 2000 (9)8/26 WP 5271 5313.odtSC 168, to hold that higher qualification cannot be a ground for rejection. Italso distinguished the decision in the matter of Devesh Sharma V. Union ofIndia and others; AIR 2023 S.C. 3895. Analyzing Jyoti K.K. and others V.Kerala Public Service Commission and others; (2010) 15 SCC 596, it washeld that possession of higher qualification presupposes possession of alower one. It was also held that nothing was brought on record todemonstrate that essential qualification of diploma in a particular stream ortrade could be considered as a separate and not lower than the bachelorsdegree in that stream. It also relied upon curriculum published by theDirector General of Training under the Ministry of Skill Development andEntrepreneurship and its brochure, to conclude that the qualification isprescribed by it. The stand of the petitioners that diploma in engineering isbetter and independent qualification for the post of Craft Instructor thanbachelor of engineering in the same trade/stream was not sustainable. Itwas concluded that their stand that the essential qualification as per therules was diploma and not the degree, was not acceptable.12.To the extent of original application No. 145 of 2024, it washeld that there was no error in holding the candidates possessing only aqualification of bachelor’s degree i.e. 12+ four years in samefaculty/stream/trade, were eligible.13.In respect of original application No. 1120 of 2023, it wasadditionally concluded that there was no error or illegality in adoptingequalization method and further that since the objection was being raised tothe advertisement in question, after those petitioners had participated in therecruitment process, they were not entitled to do so and were estopped.Hence, both the original applications were dismissed. However, theoperation of both the orders was stayed by the tribunal for a period of fourweeks.14.In consonance with the stand of the petitioners in writ petitionNo. 5271 of 2024, Mr. Ajay Deshpande, their learned advocate, would9/26 WP 5271 5313.odtsubmit that according to the Recruitment Rules of 1983, the educationalqualification for the post of Craft Instructor, expressly provides that thecandidate must be a diploma holder in the requisite trade. He would submitthat the Recruitment Rules of 1983 do not expressly state that it is aminimum qualification. He would submit that possessing the higherqualification, as provided in clause 8.1 of the advertisement, stating thateven the degree holders would be eligible, would not dispense with therequirement of possessing a diploma in concerned trade. He would submitthat this clause merely takes care of the trite legal position as laid down inMunna Roy (supra) that the higher qualification cannot be adisqualification. However, he submitted that though no objection can betaken for participation of the degree holders that would not dispense withthe basic requirement of possessing the diploma. Without there being anysuch rule, dispensing such diploma and allowing the candidates andselecting them, who are merely possessing degree in the respective trade,should not have been resorted to and would be rather inconsistent with theRecruitment Rules of 1983. He would submit that clause 8.1 would beinconsistent with the Recruitment Rules of 1983, if it is to be interpreted inthe manner in which it has been done by the respondents and which hasbeen found favour with the tribunal. He would refer to Ranjit Kumar Mehervs. State of Orissa and others : (2017) 4 SCC 568 and Employees’ StateInsurance Corporation vs. Union of India and others, (2022) 11 SCC 392,which in turn, followed Malik Mazhar Sultan & Anr vs U.P. Public ServiceCommission & Ors; (2006) 9 SCC 507. He would submit that the tribunalhas erred in appreciating such trite principle which has resulted in dismissalof the original application, illegally. He would refer to the followingdecisions:-(i)Milind Shantilal Rathod (supra),(ii)Devesh Sharma (supra),(iii)Zahoor Ahmed Rather and oth.vs.Sheikh Imtiyaz Ahmad;(2019) 2 SCC 404,10/26 WP 5271 5313.odt(iv)Abhishek Sharma and others vs. State of U.P. and others;2022 SCC OnLine All 241(v)Puneet Sharma and others vs. Himachal Pradesh StateElectricity Board Ltd. And anr. ; 2021 SCC Online S.C. 291.(vi)Jyoti K.K (supra)(vii)Dhananjay Malik and others vs. State of Uttaranchal andothers; (2008) 4 SCC 171. 15.By referring to the recent government notification dated10.07.2024, whereby the Group Instructor and Instructors, group-C(Technical), Maharashtra Education Service in the Directorate of VocationalEducation and Training (Recruitment) Rules, 2024 (hereinafter ‘Rules of2024’), Mr. Deshpande would submit that in order to do away with a specificwording of Recruitment Rules of 1983, now in Rules 4, 5 and 6, it has beenexplicitly worded by prefixing the word “minimum” to the words“educational qualification”. He would submit that this in itself demonstratesthat even the State tacitly understood and agreed to the trite legal position,that unless the recruitment rules expressly mention that the educationalqualification is minimum, the requisite educational qualification wouldconstitute an essential qualification and even if a candidate possesses higherqualification that would not make him eligible unless he possesses theessential qualification, as prescribed by the Recruitment Rules of 1983. 16.So far as the stand of the respondents that these Rules of 2024,would govern even the recruitment process in question, which is still toreach finality, Mr. Deshpande, would submit that such change in therecruitment rules after the recruitment process had started, has beendeprecated by the supreme court in the matter of Zonal Manager, Bank ofIndia, Zonal Office, Kochi and others vs. Aarya K. Babu & anr; (2019) 8SCC 587. 17.Senior advocate Mr. Sanjeev Deshpande, for the respondent-11/26 WP 5271 5313.odtState, would submit that some of the candidates had raised same challengein respect of same recruitment process and had preferred separate originalapplication No. 761 of 2022, which was allowed by the tribunal, but theorder was partially reversed by the High court in writ petition No. 2654 of2023, which was taken to the supreme court by the candidates but S.L.P. wasdismissed on 17.10.2023 and even an attempt to review the order of theHigh court had failed. However, he submitted that the challenge in thesematters is on different footings. He would submit that the originalapplication No. 145 of 2024 was filed belatedly, after the results weredeclared on 23.5.2023 in respect of CBT-I and result of CBT-II were declaredon 25.8.2023. The provisional selection list was prepared, documents wereverified and the appointment orders were issued from 15.1.2024. He wouldsubmit that out of total 1457 posts advertised, appointments have beengiven to 1063 candidates. The result has been put on hold in respect of 245candidates, who possess degrees in the respective trade and still thereremain 149 vacancies. 18.On legal aspects, senior advocate Mr. Sanjeev Deshpande,would submit that after having participated in the recruitment processwithout posing any challenge to clause 8.1, the petitioners are not entitledto wreck up the issue belatedly and are estopped from doing so, in the lightof the law laid by the supreme court in the case of State of Uttar Pradesh vs.Karunesh Kumar; AIR 2023 SC 52. He would submit that considering themarks secured by the petitioners, they do not even stand a chance of gettingappointed against the remaining 149 vacancies also.19.He would submit that possessing higher qualification pursuant toclause 8.1 of the advertisement, cannot be regarded as a disqualification.The Recruitment Rules of 1983 did not prohibit the persons having higherqualification. Rule 3(b) cannot be interpreted in the manner as is beingsubmitted on behalf of the petitioners. He would place reliance on Zahoor12/26 WP 5271 5313.odtAhmed Rather (supra) and Shifana P.S. vs. State of Kerla and others; (2024)8 SCC 309. 20.Mr. Deshmukh for respondent nos. 3 to 6 in Writ Petition No.5271/2024 would make the submissions on the line, those were made bySenior Advocate Mr. Sanjeev Deshpande for the State. He would submit thatby participating in the selection process the petitioners have acquiesced inthe prescription contained in clause 8.1 and are estopped from raising anyobjection in that regard. He would submit that the selection process hadreached an advanced stage. Document verification was undertaken.Hundreds of candidates were selected by publishing a final select list andeven the appointment orders were issued. Some of those candidates, whohave already been appointed, possess the higher qualification of degree inengineering as is possessed by these respondent nos. 3 to 6. Theirappointments have not been challenged and even they are not parties beforethe Tribunal or even before this Court. The challenge put up by thesepetitioners is based on misconception inasmuch as qualification of diplomain engineering is not the only qualification essential for the post of craft-instructor. He would refer to Rule 3(B) of the Recruitment Rules of 1983and would submit that diploma in engineering is one of the qualificationsprescribed thereunder. Even the other qualification mentioned in Rule 3(B)(II)(b) is also a qualification which entitles a candidate to be considered.21.Mr. Deshmukh’s another limb of argument was to the effect that thisRule 3 does not expressly debar the candidates possessing higherqualification. The degree in engineering in the respective trade wouldcertainly be a higher qualification than the basic qualification of diploma inengineering. The petitioners’ stand to distinguish degree in engineeringfrom the diploma in engineering is fallacious. No illegality has beencommitted by the Tribunal in appreciating all these facts and circumstancesand while interpreting the Recruitment Rules of 1983. He would also13/26 WP 5271 5313.odtbuttress his submissions by relying upon Jyoti K.K., Dipti Samaddar, ZahoorAhmad Rather, Munna Roy (supra). 22.The learned advocate Mr. Barlinge for respondent nos.4 to 6 and thelearned advocate Mr. Waghmare for respondent nos. 7 to 15 in Writ PetitionNo. 5271/2024 would also make the submissions in tune with what hasbeen submitted by learned senior advocate Mr. Sanjeev Deshpande and thelearned advocate Mr. Deshmukh. Additionally, they would submit that theoriginal application was filed by the petitioners beyond the period oflimitation prescribed under Section 21 of the Administrative Tribunals Act,1985 (hereinafter ‘the Tribunals Act’) and the original application itself wasnot maintainable. They would place reliance on the decision of a divisionbench of this Court at the Principal Seat in the matter of Swapnil VijayJadhav and another Vs. The Settlement Commissioner and Director of LandRecord and another (Writ Petition (Stamp) No. 31643/2022, decided on09.01.2023), to substantiate their arguments that having participated in theselection process without any demur, no challenge to clause No. 8.1 couldhave been maintainable after more than a year of the advertisement. In thiscontext they would also rely upon Dhananjay Malik (supra). They wouldalso refer to the decision in Puneet Sharma (supra) to substantiate theirsubmissions that degree in engineering is a higher qualification than adiploma in the same discipline. Since the Recruitment Rules of 1983 do notexpressly exclude degree holders, the petitioners have no chance to succeed.23.They would further submit that if all the clauses from theadvertisement are read in conjunction, it would demonstrate that in clause15.22 it was expressly notified that in case of the candidates obtaining equalmarks, a candidate having higher qualification would be selected. It wasalso declared in the very same clause that the qualification prescribed in theRecruitment Rules of 1983 is the minimum qualification. Therefore, thepetitioners having never raised any objection to such advertisementcontaining clause No. 8.1 and 15.22 and having participated in the14/26 WP 5271 5313.odtrecruitment process, are estopped from questioning the selection process onthe grounds they are agitating.24.Mr. Barlinge and Mr. Waghmare would further submit that the Statein its wisdom has considered the degree in engineering in the respectivetrade as a higher qualification than the diploma of engineering in the sametrade. The inevitable conclusion would be that in the absence of any expressprohibition in the Recruitment Rules of 1983, the degree holders cannot beexcluded.25.The rival submissions now fall for our consideration. It would beapposite to reproduce the relevant Recruitment Rules of 1983 as well as theclauses in the advertisement: Rule 3 of the Recruitment Rules of 1983 reads as under:“3. Appointment to the post of Craft Instructor in theIndustrial Training Institute and Basic Training and RelatedInstruction Centre under Craftsmen Training Scheme andApprenticeship Training Scheme in the Department shall bemade either-(A) by promotion of a suitable person from anappropriate trade, on the basis of seniority subject to fitnessholding any of the Instructional posts mentioned in theSchedule appended to these rules, in the GovernmentTechnical High Schools or Centres, Government IndustrialTraining Workshops and other Government TechnicalInstitutions under the control of the Deputy Director ofTechnical Education-cum-Deputy Apprenticeship Adviser(Senior) of the respective regions and possessing thequalifications and experience prescribed for appointmentby nomination in clause (B) of this rule, or(B) by nomination from amongst candidates who-15/26 WP 5271 5313.odt(I) unless already in the service of Government,are not more than thirty years of age, and(II) possess-(a) a Diploma at least in Second Class in appropriatebranch of Engineering or Technology of the Board ofTechnical Examinations, Bombay or its equivalentqualification; or(b) have passed the Secondary Schools CertificateExamination with Mathematics and Science or itsequivalent examination; and possess either,-(i) National Apprenticeship Certificate in theappropriate trade of the National Council for Trainingin Vocational Trades or its equivalent; or(ii) National Trade Certificate in appropriate trade ofthe National Council for Training in Vocational Tradesor its equivalent; or(iii) Trade Certificate in respective trade awarded bythe State Council for Training in Vocational Trades ofthe Maharashtra; or(iv) persons from Defence Service having basicqualifications and possessing trade Certificate andtwo years' experience in the respective trade asmentioned in sub-clause (III) below; and(III) have practical experience in appropriate trade for aperiod of not less than four years including the minimumperiod prescribed for training by the persons possessing thequalifications mentioned in sub clauses (a) and (b) (i), (ii)and (iii) of clause (B) of this rule; and for personspossessing the qualifications mentioned in sub-clause (b)(iv) of clause (B) (II) of this rule, two years practicalexperience in appropriate trade after acquiring the16/26 WP 5271 5313.odtqualifications in a respective trade in an industry orGovernment Department or Industrial Undertaking orCommercial concern or Corporation or Board establishedby Government:Provided that, preference may be given to candidateswho have successfully completed training in the CentralTraining Institute for the post of Instructor.Provided further that, the requirement of experiencemay not be insisted upon in case of persons possessingDiploma in Second Class.”26.The clauses no. 8.1 and 15.22 in the advertisement read as under:“8.1-lacaf/kr O;olk;kr mPp ‘kS{kf.kd vgZrk/kkjd mesnokj ik=let.;kr ;sbZy-(Candidates having higher qualification in the concernedtrade would be treated as eligible)15.22- izk/kkU;dze%&Preferences:-T;k ik= mesnokjkaps ,dw.k xq.k leku vlrhy v’kk mesnokjkapkxq.koRrk ;knhrhy izk/kkU;dze iq<hyizek.ks fuf’pr dj.;kr ;sbZy-(Candidates scoring equal marks would be preferred asfollows:)(iv)mijksDr (i), (ii) o (iii) e/khy o vU; inkaP;k ckcrhrmijksDr (ii) o (iii) e/khy vVh ns[khy leku Bjr vlY;kl vtZlknj dj.;kP;k vafre fnukadkl mPpLrj ‘kS{kf.kd vgZrk /kkj.kdj.kk&;k mesnokjkl izk/kkU;dze ns.;kr ;sbZy- (If the conditions in the above (i), (ii) & (iii) arealso equal, preference will be given to the candidate whopossess higher educational qualification on the date of theadvertisement.)17/26 WP 5271 5313.odt27.The advertisement was published on 17.08.2022 and the petitionersfrom Writ Petition No. 5313/2024 filed the Original Application No.1120/2023 on 29.11.2023, with following prayers : “B) Hold and declare that, by issuing appropriate order ordirection the advertisement issued by the respondent no.3 i.e.EXHIBIT- "B" for post of Instructor/Craft Instructor of ITIs mayquash and set aside and for that purpose issue necessaryorders;Whereas the petitioners from Writ Petition No. 5271/2024 preferredthe Original Application No. 145/2024 on 06.02.2024, with followingprayers:“A. This Hon'ble Tribunal may kindly direct the respondentNo. 2 to delete the candidates with HSC + Engineeringdegree from the list of selected candidates and respondentNo. 2 be directed to reverify their documents and ensure ifthey possess the essential qualification of diploma inEngineering according to the Recruitment Rules of 1983.B. This Hon'ble Tribunal may kindly direct the respondent No.2 to publish a revise list of the candidates in accordance withthe Recruitment Rules of 1983.”28.Admittedly, the petitioners from both these writ petitions participatedin the selection process without any demur. It is trite, as laid down in catenaof decisions that once having participated in the selection process acandidate is estopped from questioning the clauses in the advertisement.Suffice for the purpose to refer to the Karunesh Kumar (supra), Tajvir SinghSodhi and others Vs. State of Jammu and Kashmir and others; 2023 SCCOnLine SC 344, Swapnil Vijay Jadhav (supra), Dhananjay Malik (supra).18/26 WP 5271 5313.odtKeeping aside the issue of limitation, once having participated in therecruitment process, the petitioners are not entitled to take exception to theclauses and that being the only prayer made by the petitioners from WritPetition No. 5313/2024 in their Original Application No. 1120/2023, on thisground alone, their petition is liable to be dismissed.29.The petitioners from Writ Petition No. 5271/2024 even did notchallenge the clauses in the advertisement, perhaps releasing the limitationin putting up such challenge to the advertisement once having participatedin the recruitment process. The prayer clauses ‘A’ and ‘B’ have beeningenuously drafted seeking a direction to exclude from the select list, thecandidates possessing HSC + degree in engineering. This is in tune with thesubmission of learned advocate Mr. Ajay Deshpande, for the petitionerswherein he submitted that the petitioners never wanted to raise anyobjection to clause no. 8.1 for the reason that it only enabled the personshaving the degree in engineering in the respective trade to participate.According to him, the petitioners understood this clause to mean that merepossessing degree would not exclude or disqualify a candidate. Accordingto him, even if the degree holders were not to be ousted from participation,they were not eligible to participate without having the requisite or essentialqualification of possessing a diploma in the respective trade, which is thequalification prescribed by Rule 3 of the Recruitment Rules of 1983.30.Though ingenuous stand, one cannot lose sight of the fact that a plainreading of Rule 3 would demonstrate that it only prescribed the qualificationfor the post of Craft Instructor. Though it does not indicate that thequalification of diploma in the respective trade as a ‘minimum’ qualification,equally it does not indicate that it was to be the ‘only’ qualification. Therules do not expressly excluded the degree holders. Paragraph nos. 8 and 9from Jyoti K.K. (supra) need to be reproduced which read as under:19/26 WP 5271 5313.odt“8. Under the relevant Rules, for the post of AssistantEngineer, degree in Electrical Engineering of Kerala Universityor other equivalent qualification recognised or equivalentthereto has been prescribed. For a higher post when a directrecruitment has to be held, the qualification that has to beobtained, obviously gives an indication that such qualificationis definitely higher qualification than what is prescribed forthe lower post, namely, the post of Sub-Engineer. In that viewof the matter the qualification of degree in ElectricalEngineering presupposes the acquisition of the lowerqualification of diploma in that subject prescribed for thepost, shall be considered to be sufficient for that post.9. In the event the Government is of the view that onlydiploma-holders should have applied to post of Sub-Engineersbut not all those who possess higher qualifications, either thisRule should have excluded in respect of candidates whopossess higher qualifications or the position should have beenmade clear that degree-holder shall not be eligible to apply forsuch post. When that position is not clear but on the otherhand the Rules do not disqualify per se the holders of higherqualifications in the same Faculty, it becomes clear that theRule could be understood in an appropriate manner as statedabove. In that view of the matter the order of the High Courtcannot be sustained. In this case we are not concerned withthe question whether all those who possess such qualificationscould have applied or not. When statutory Rules have beenpublished and those Rules are applicable, it presupposes thateveryone concerned with such appointments will be aware ofsuch Rules or make himself aware of the Rules before makingappropriate applications. The High Court, therefore, is not20/26 WP 5271 5313.odtjustified in holding that recruitment of the appellants wouldamount to fraud on the public.”Though the Supreme Court was not considering the Recruitment Rules of1983 in that matter, the principle of law laid down would clearly indicatethat it is only if the rules expressly declare that the higher qualificationstands excluded, possessing higher qualification would presupposeacquisition of lower qualification of diploma in that trade/subject. 31.In this context, it is necessary to note that no dispute has been raisedthat the degree in engineering in the respective trade being a higherqualification than diploma in engineering in that trade. The whole thrust ofthe stand of the petitioners and the submissions of their learned advocates isto the effect that when the rules prescribe essential qualification as diplomain engineering, even if a candidate possesses a degree, simultaneously, heshould also possess a diploma to become eligible, in light of clause 8.1.Though as laid down in Zahoor Ahmad Rather (supra), possessing higherqualification will not come with a presupposition of acquisition of a lowerqualification, since Rule 3 does not prescribe so, it would all depend uponthe scientific scrutiny as to if there are any special features in the lowerqualification, which are conspicuously absent in respect of a higherqualification. In the present matters, the ‘degree in engineering’ wasqualified by prescribing that it should be in the same trade. There wasnothing before the Tribunal and even before us to embark upon scrutiny ofthis aspect, which even otherwise the Tribunal as well as this Court cannotundertake.32.Precisely for these reasons, the decisions in the matter of DeveshSharma (supra), making a distinction, holding that in respect of post wherethe requisite qualification was D.El.Ed., possessing only B.Ed. qualificationor the decision in Zahoor Ahmad Rather (supra) wherein the qualification21/26 WP 5271 5313.odtprescribed as SCC+ITI for the post of technician-III was declared as not tobe treated as a lower qualification than the diploma, one will have to followPuneet Sharma (supra), wherein, a degree in engineering has been held tobe higher/equivalent qualification than the diploma in that discipline for thepost of Junior Engineer. 33.Mr. Ajay Deshpande sought to distinguish Puneet Sharma (supra) onthe ground that it was decided on the basis of the recruitment rules whichwere amended at a very nascent stage of the recruitment process. True it isthat the observations in Puneet Sharma (supra) will have to be understoodin the context of such amended recruitment rules. However, as we havecursorily observed herein above, even if the Recruitment Rules of 1983 didnot expressly mention that the degree holders would be eligible, in light ofJyoti K.K. (supra), conversely, when those also do not expressly exclude thedegree holders, by analogy even Puneet Shamra (supra) would be relevantand has been rightly relied upon by the Tribunal.34.True it is that during pendency of the present dispute in the form ofOriginal Applications and these petitions, the State has come out with newRecruitment Rules with effect from 10.07.2024. However, unlike in thematter of Puneet Sharma these rules have been brought into effect after theselection process is on the verge of completion, but for pendency of thesepetitions and those would not apply to the recruitment in dispute.35.Even if the State has now come out with new Recruitment Rules andmade it effective from 10.07.2024, those will not apply to the matters inhand wherein, the recruitment process has advanced to the last stage ofgiving the remaining appointments, as laid down in the matter of Aarya K.Babu (supra).36.May be, as was submitted by Mr. Ajay Deshpande, having realized theshortcomings in the Recruitment Rules of 1983 now the new rules expresslydeclare diploma in the respective trade as a minimum qualification.22/26 WP 5271 5313.odtHowever, merely because the State has now taken precaution to obviate anyconfusion, we cannot accept the submission of learned advocate Mr. AjayDeshpande that by making such specific improvement in the wording in thenew Recruitment Rules, the respondents impliedly admitted that absence ofword ‘minimum’ in the Recruitment Rules of 1983 would exclude degreeholders. There cannot be a bar for making improvement. If the State hasnow tried to remove the confusion, one cannot take it as an admission. 37.In the matter of Sangram Ramdas Gholave (supra) being heavilyrelied upon by the learned advocates for the petitioners, the RecruitmentRules expressly directed reserving of 75% posts of junior engineer fordiploma holders only. Therefore, it was held that degree holders were noteligible for appointment in respect of such 75% posts of junior engineer.Pursuant to relevant rule, the advertisement expressly excluded the degreeholders in engineering from being considered for the post of juniorengineers and it is such exclusion that was challenged on the ground that itwas arbitrary, unreasonable and unconstitutional. It was a matter where thecadre of junior engineer was divided into two groups, one, holding degreewho were designated as Assistant Engineer-Grade II and, the second, juniorengineers who were holding either diploma or who had served for 5/7/10years. 25% of posts of assistant engineers grade-II were to be comprising ofjunior engineers. It was further provided that according to the RecruitmentRules the appointment to the post of Sectional Engineer (Civil) Group-B wasto be made by way of appointment by promotion from amongst the juniorengineers who had put in not less than five years regular service, if theypossessed a three year diploma, seven years regular service if they possessedrequisite certificate or 10 years regular service, who were not possessingeither diploma or requisite certificate. It was a matter of filling up 25%posts out of total strength of junior engineers, which were reserved forcandidates holding degrees and the remaining were to be filled in bynomination from amongst the candidates holding diploma. It is in view of23/26 WP 5271 5313.odtsuch peculiar Recruitment Rules, making out different quota for the degreeholders and the diploma holders from the feeding cadre and by nomination,it was held that the degree holders were not qualified. In the matter in handno such marked distinction can be found and all the posts advertised in therecruitment process in question were available to be recruited from the openmarket. Therefore, in light of such peculiar fact situation that was obtainingbefore the division bench in the matter of Sangram Ramdas Gholve, thepetitioners are not entitled to bank upon it. 38.In the matter of Milind (supra), the petitioners before the divisionbench were the degree holders in Civil Engineering and were aggrieved bythe eligibility criteria, prescribed in the advertisement, whereby it was statedthat three year diploma in Civil Engineering recognized by Government orany other qualification recognized as equivalent thereto was prescribed forthe post of junior engineer and aggrieved thereby, they had preferred theoriginal application, which was rejected and its challenge before the HighCourt was dismissed with the observation that the Court would not be in aposition to read something into the Recruitment Rules that was missing. Inthe matter in hand, apart from the fact that Rule 3 of the Recruitment Rulesof 1983 do not either expressly exclude the degree holders and do not evenexpressly state the diploma in the requisite trade to be the minimum or theonly qualification and particularly when clause no. 8.1 expressly declaredthat even degree holders would be eligible, it may be that the candidateslike the petitioners could not comprehend that this clause was innocuousand merely clarified that the degree holders were also eligible to apply. Oncehaving seen that degree in engineering in the respective trade is higherqualification than the diploma in that trade, even the facts andcircumstances in the matter of Milind (supra) would be peculiar and thepetitioners are not entitled to rely upon it, when in that matter the challengewas to the advertisement, which is not the case in hand.24/26
Decision
WP 5271 5313.odt39.In the matter of P. M. Latha and another Vs. State of Kerala andothers; (2003) 3 Supreme Court Cases 541, for the post of LowerPrimary/Upper Primary Teachers in Government schools, the advertisementpublished prescribed the qualification as “pass in TTC (Trained TeachersCertificate)”, but the persons holding B.Ed. degree were selected on thebasis that it was a higher qualification and in terms of advertisement it washeld that the B.Ed. degree holders were not eligible, as it could not havebeen treated as higher qualification than TTC. In the matter in hand, torepeat, clause no. 8.1 expressly declared that even the degree holders wouldbe eligible.40.In the matter of Ranjit Kumar Meher (supra) the qualificationprescribed in the advertisement was not in consonance with the recruitmentrules and since the appellant before the Supreme Court admittedly was notpossessing the qualification as prescribed by the rules, he was heldineligible. Again, in the matter in hand, holding of degree in engineering inthe respective trade is admittedly a higher qualification and has not beenexpressly excluded in Rule 3 of the Recruitment Rules of 1983. Therefore,the petitioners are not entitled to derive any benefit even from this decision.41.The upshot, there is no error or illegality in the order of the Tribunalunder challenge. It has taken a plausible view, which cannot be disturbed inexercise of the powers under Article 226 of the Constitution of India.42.The writ petitions are dismissed. Pending Civil Application is disposedof. Rule stand discharged. ( PRAFULLA S. KHUBALKAR J.) (MANGESH S. PATIL, J.)43.After pronouncement of the judgment and order, the learnedAdvocates for the petitioners request for staying operation of the order andcontinuation of ad interim relief for a reasonable time to enable them to25/26 WP 5271 5313.odtapproach the Supreme Court.44.The learned AGP and the learned Advocates for the respondentsoppose the request on the ground that the ad interim order passed by thetribunal has been in operation since February 2024 and being a matter ofrecruitment, the request may not be considered.45.Considering the overall conspectus of the matter, we are not inclinedto continue the ad interim relief. However, we declare that any appointmentmade hereinafter would be subject to the final outcome of the challengebefore the Supreme Court. ( PRAFULLA S. KHUBALKAR J.) (MANGESH S. PATIL, J.)mkd/-26/26