Court No. - 58
Case :- WRIT - A No. - 9954 of 2018 Petitioner :- Manish Kumar Sharma Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Anoop Trivedi,Pooja Agarwal,Rajeev Dhar Dwivedi Counsel for Respondent :- A.S.G.I.,Pooja Agarwal
Hon'ble Ashwani Kumar Mishra,J.
While entertaining the writ petition, following orders were passed in the matter on 25.07.2018 :-
"After hearing the counsel for the parties, following orders were passed on 09.07.2018:
"Petitioner and respondent no.3 are stated to have obtained same marks but respondent no.3 has been selected, who is younger in age than petitioner, apparently for the reason that petitioner's experience certificate is not satisfactory.
Learned counsel for the respondent has produced instructions before the Court, as per which respondent no.3 has obtained training from M/s Musashi Auto Parts India Pvt. Limited while petitioner has obtained training from MHI Boilers Pvt. Ltd. which is a group company of M/s Larsen & Toubro Limited. Certificate of petitioner records that he has worked as Supervisor in Quality Control and Quality Assurance. It is also submitted that petitioner's certificate is from a more reputed concern, which has arbitrarily been discarded on the grounds, which are wholly unsustainable in law.
Learned counsel for the respondents may obtain fresh instructions in the matter. Respondent no.2 shall also apprise respondent no.3 about pendency of writ petition.
Put up in the additional cause list on 18.7.2018"
Learned standing counsel was granted further time to obtain instructions. Ms. Pooja Agrawal has been heard for the respondents and an attempt has been made to justify the action of the respondents by contending that the Board has acted fairly in the matter. Grievance of the petitioner is that though he has furnished one year experience, as was required in terms of the advertisement, but his claim has been arbitrarily discarded.
Qualification, prescribed for appointment to the post in the advertisement, reads as under:
"1. Bachelor's Degree in science with Physics from a recognized university.
OR Diploma in Mechnical Engineering from a recognized University or State Board of Technical Education.
2. One year experience in Production or Development or Development or Quality Assurance in the relevant field from a recognized Organization or Undertaking."
Petitioner possesses requisite educational qualification and has also produced a certificate issued by L & T - MHI, Boilders Private Limited, as per which, the petitioner has worked as Supervisor - QA/QC (Quality Assurance/Quality Control). This certificate, however, has not been treated to be sufficient to meet the eligibility, as according to the respondents, the certificate fails to clarify as to in which field the petitioner has gained experience.
Contention of respondents is, prima facie, found to be unsustainable; in as much as, the petitioner was appointed as Junior Engineer (Trainee) and has worked from 25.01.2010 to 21.06.2014. Petitioner appears to have left in hope of better prospects. His designation is clearly shown as Supervisor - QA/QC.
In the opinion of this Court, the certificate clearly answers the requirement in terms of the advertisement. Argument of the learned counsel for the respondent, that certificate had to be in relevant field, is not liable to be accepted; in as much as, the word "relevant field" would refer to the earlier part, as per which one year experience has to be in production or development or quality assurance. A condition, which is not prescribed in the advertisement, cannot be made basis to discard petitioner's claim, when the petitioner has furnished material in terms of the advertisement. However, as the respondent contends that the selection proceedings have been concluded, it would be appropriate that respondent no. 3 be afforded an opportunity of hearing in the matter before proceeding to pass any final order in this petition.
Learned counsel representing respondent no. 2 is directed to intimate respondent no. 3 about the pendency of this petition, so that the said respondent may appear before this Court and he may be heard.
Put up this case, in the additional cause list, on 09.8.2018.
Till the next date of listing, in case no appointment letter has yet been issued to respondent no. 3, no appointment letter shall be issued."
Respondent no. 3 has appeared in the matter and has also filed his counter affidavit.
Learned counsel for the respondent no. 3 has been heard at some length. The facts which have been noticed in the order dated 25.07.2018 are not disputed. What is stated is that petitioner has not challenged the order dated 02.02.2018 initially, and it was only after the final result has been declared, thus, the order is assailed.
Be that as it may, this Court is of the opinion that no difference would be made if the order dated 02.02.2018 is challenged after the final result is declared. Detailed reasons have already been indicated in the order dated 25.07.2018 to suspect the stand of the Commission in denying consideration to petitioner's claim on the ground that experience certificate possessed by the petitioner was not as per the advertisement. Once, the petitioner had produced certificate of Supervisor - QA/QC, the authorities ought to have considered the same and the petitioner's claim for appointment, could not be non suited on such ground.
The decision of the Commission to deny appointment to petitioner on the ground of lack of experience certificate, in the facts and circumstances is found to be wholly arbitrary and in the teeth of the terms of the advertisement itself.
Writ petition accordingly succeeds and is allowed. The impugned order dated 02.02.2018 as well as the select list published on 19.03.2018 are accordingly quashed.
Since, the decision of the Commission has been found to be unsustainable for the reason that petitioner could not have been discarded on the ground of lack of experience certificate, the Commission shall take a fresh decision in the matter within a period of two months from the date of production of certified copy of this order.
Order Date :- 20.8.2018 sailesh