(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard learned counsel Mr.Shalin Mehta for the appellants, learned counsel Mr.D.G.Shukla for the respondent No.1 and learned AGP Mr.N.J.Shah for the respondent No.2.
2. An advertisement was issued by Gujarat Public Service Commission on 28.1.2009 inviting applications for 67 posts of Principal/Senior Surveyor/Technical Officer/Training-cum- Placement Officer/Trade Testing Officer in Gujarat Skill Training Service, Class – II (Advertisement No.27/2008-09) in accordance with the Principal/Senior Surveyor/Technical Officer/Training-cum-Placement Officer/Trade Testing Officer in Gujarat Skill Training Service, Class – II (Admn. Branch)/ (Sr.Duty) Recruitment Rules, 1984 (for short `1984 Rules'). As per the said advertisement, 31 posts are to be filled-in from Unreserved (General) category candidates, 5 posts are to be filled in from Scheduled Caste candidates, 11 posts are to be filled in from Scheduled Tribe candidates and 20 posts are to be filled in from SEBC category candidates. Out of the said 67 posts, 10 posts are reserved for Unreserved (General) Women category candidates, 2 for Scheduled Caste Women, 3 for Scheduled Tribe Women and 7 for SEBC Women category candidates, while one post is reserved for Physically Handicapped candidate.
3. The appellants had applied in pursuance of the advertisement as the appellant in LPA No.1362 of 2011 and the appellant in LPA No.1364 of 2011 were holding Diploma in Computer Engineering whereas appellant in LPA No.1363 of 2011 was holding Degree in Computer Engineering. In pursuance of the advertisement, the appellants were called on 25.4.2010 to appear in the written examination for the post of Principal Class-II. The appellants appeared in the written examination and they were declared successful on 15.6.2010. In July 2011 all the appellants were informed that they were not eligible to appear in the examination as they did not possess the requisite qualification as per 1984 Rules, as Computer Diploma or Computer Degree was not mentioned in Rule 4 of 1984 Rules, therefore, they were not called for interview.
4. All the appellants filed writ petitions being Special Civil Applications No.12965/2011, 12967/2011 and 12969/2011 challenging the rejection of their candidatures by the respondent – Commission. This Court by interim order permitted the appellants to appear in the interview, however, the results of other candidates had been declared.
5. Learned counsel Mr.Shalin Mehta has urged that, after issuance of the advertisement, new rules known as Principal Class-II/Senior Surveyor Class-II/Technical Officer Class- II/Training-cum-Placement Officer/Trade Testing Officer/Senior Training Officer Recruitment Rules, 2009 ( for short `Rules 2009') came into force with effect from 16.12.2009. Placing reliance of the rules, the learned counsel has urged that, Diploma in Computer Engineering and Degree in Computer Engineering has been included in the new rules, and at that time the earlier Rules 1984 was framed, the Diploma in Computer Engineering or Degree in Computer Engineering was not included and, therefore, the appellants were qualified to appear in the examination and the Rules 2009 would be applicable. He further urged that the words “or its equivalent qualifications” in the 1984 Rules would include a Diploma in Computer Engineering and it does not specify that it should be equivalent to the branches of the rules.
5.1 The second submission of Mr.Shalin Mehta is that the old rules must be read in light of the new rules as the Degree in Computer Engineering and Diploma in Computer Engineering was not available in the year 1984 Rules and, therefore, it could not be included in the said Rules.
5.2 The third submission of Mr.Shalin Mehta is that equivalence can only be decided by the State Government and the State Government has not taken any decision that the Computer Engineering Course is equivalent to the qualifications prescribed under Rule 4 of 1984 Rules.
5.3 The fourth submission of Mr.Shalin Mehta is that the post is administrative post, and even if the new rules or any subsequent rules are framed in future, the appellants would be qualified to appear in the examination. The last submission of Mr.Shalin Mehta is that some Foreman Instructors holding Diploma/Degree in Computer Engineering have been promoted to the post of Principal Class-II in the month of July, 2011, and the appellants have also holding a Diploma in Computer Engineering and working as Foreman Instructor in Industrial Training Institute at Gandhinagar and therefore they are being discriminated.
6. Learned counsel Mr.D.G.Shukla appearing on behalf of the GPSC has supported the order passed by the Commission and has placed reliance on the affidavit-in-reply filed by the Commission opposing the writ petitions, and has urged that, since the advertisement was issued under the old rules, the entire selection process has been carried out as per new rules and the same could not be applied retrospectively. He has placed reliance on the decision of the Apex Court in the case of Mohd. Sohrab Khan vs. Aligarh Muslim University and others reported in 2009 AIR SCW 3755 and in the case of P.Mahendran and others vs. State of Karnataka and others reported in AIR 1990 SC 405.
7. We have considered the arguments of learned counsel for the appellants. It is not disputed by learned counsel for the appellants that, when the appellants had applied in pursuance of the advertisement issued by the Commission on 28.1.2009, at that time Rules 2009 had not come into force. Rule 4 of 1984 Rules under which advertisement was issued did not prescribe Computer Engineering or Diploma in Computer Engineering as the course for being eligible to take examination or to appear for direct selection. The question of equivalence would only arise if there are two courses at a time, but, if the course of Computer Engineering or Diploma in Computer Engineering was not existing when the advertisement was issued, there is no question of equivalence. Therefore, since the appellants were not having the essential qualifications prescribed under Rule 4 (b)(i) and Rule 4(b)(ii) of 1984 Rules, they were not eligible to appear in the examination or to apply pursuant to the advertisement. The Commission committed an error in advertisement for calling them in the examination which were undertaken by them, which was subsequently cancelled by the Commission as the Commission found that the appellants were not eligible to take the examination in view of Rule 4(b)(i) and Rule 4(b) (ii) of 1984 Rules.
8. For the aforesaid reasons, we do not find that the Commission had committed an error in rejecting the candidatures of the appellants as they were not eligible.
8.1 The second argument of the learned counsel for the appellants is that the old rules be considered in light of the new rules as Diploma in Computer Engineering and Degree in Computer Engineering was not included in 1984 Rules. If the rules does not provide the eligible qualifications, it cannot be read by this Court that the appellants are eligible to appear in the examination since the courses were not existing when the new rules, it cannot be treated to be equivalent to the courses which have been mentioned in Rule 4(b)(i) and Rule 4(b)(ii) of 1984 Rules.
8.2 The third argument of learned counsel for the appellants is that the equivalence of Diploma in Computer Engineering or Degree in Computer Engineering can only be decided by the State Government and the State Government has not taken any decision that the Computer Engineering Course is equivalent to the qualifications prescribed under Rule 4 of 1984 Rules. In our opinion, when the Rules 1984 has already been framed by the Commission, there is no question of consideration by the State Government on the question of equivalence and, therefore, the decision was required to be taken by the State Government is misconceived.
8.3 The fourth argument of Mr.Shalin Mehta is that the post is administrative post, and even if the new rules or any subsequent rules are framed in future, the appellants would be qualified to appear in the examination. In our opinion, one has to apply in pursuance of the qualifications as prescribed under the rules and, therefore, the same would not be applicable to the appellants' case.
8.4 The last argument of learned counsel for the appellants is that some Foreman Instructors holding Diploma/Degree in Computer Engineering have been promoted to the post of Principal Class-II in the month of July, 2011, and the appellants have also holding a Diploma in Computer Engineering and working as Foreman Instructor in Industrial Training Institute at Gandhinagar and therefore they are being discriminated.
8.5 This argument is not open to the appellants as the persons who are possessing the qualifications of Degree in Computer Engineering or Diploma in Computer Engineering have not been added as respondents, and it is not come on record as to when they were promoted, and after coming to the new 2009 Rules, promotions have been made, then, we do not find any fault with the Commission even if the appellants may be eligible to be promoted and, therefore, merely some Foreman Instructors are promoted would not give any right to the appellants to be directly selected when the advertisement was issued under the 1984 Rules.
9. In view of the aforesaid reasons, we do not find any illegality in the order passed by the learned Single Judge. The Letters Patent Appeals are devoid of any merits and are accordingly dismissed.
10. In view of dismissal of main appeals, Civil Applications No.9757/2011, 9758/2011 and 9759/2011 stands also dismissed.
11. The interim order dated 20.10.2011 passed by this Court is discharged.
(V.M. SAHAI, J.) (A.J.DESAI, J.) syed/