Jatinder Singh Etc. Vs. P.S.E.B. Etc. - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - in this context, it is better to clarify what the expression 'higher qualification than the one prescribed by the rules means. this can better be explained by illustrations. it further held that where the qualifications for a post are spelt out by a statute, or precisely prescribed by the employer-state, it can insist on a literal adherence thereto irrespective of either an unprescribed equivalent or a higher academic qualification therefrom possessed by candidates seeking appointments to the post. it is thus contended that the board cannot act arbitrarily whenever it liked by changing the qualification for the same post in answer to what is being argued by the counsel, the board in para 8 of its written statement has submitted that 'in order not to increase the total cadre strength, the existing vacancies of lineman were sought to be filled up from amongst in-service candidates.v.k. jhanji, j.1. this shall dispose of civil writ petitions no. 17381, 5348, 4666, 7332, 5960, 9457, 3836 and 1296 of 1995 and 52 of 1992 as identical question of law and facts is involved therein. facts are taken from civil writ petition no. 17381 of 1995.2. petitioners in these writ petitions claim to have passed matriculation examination and are holders of three year diploma in electrical trade. on the basis of their diploma in electrical trade, they have got their names registered in different ! employment exchanges in the state of punjab. it is the case of the petitioners that upto the year 1987 the punjab state electricity board, patiala (hereinafter referred to as the board) had prescribed the qualification for the post of lineman by way of direct recruitment as 'a candidate must be matric and i.t.i. electrical trade or its equivalent examination'. the candidates who were having higher qualification of diploma or degree/amie were also considered eligible for selection. however, in the year 1988, vide office order dated 23.12.1988, the respondent-board by superseding the previous orders prescribed the qualifications for direct recruitment to the post of lineman as 'matric or equivalent with national apprenticeship certificate in the trade of lineman'. it has thus, been averred that though the petitioners have got their names registered in different employment exchanges and also have the higher qualification of diploma in electrical engineering and apprenticeship certificate of one year, but since they do not possess the minimum essential qualification of national apprenticeship certificate the respondent-board is not considering their claim for direct recruitment to the post of lineman. petitioners claim that this action of the respondent-board is arbitrary and violative of articles 14 and 16 of the constitution of india.3. on the other hand, the stand of the respondent in the written statement is that the prescription of qualification for direct recruitment to the post of lineman is exclusively within the sole purview of the board in exercise of its statutory powers under section 79(c) of the electricity supply act, 1948. the board decided to recruit lineman only from amongst the candidates who possessed national apprenticeship certificate in the trade of lineman which has two years practical training followed by an examination. in sum, the firm stand is that it is for the board to insist for, a particular qualification in accordance with the requirement of a post and it is hot obliged to consider a person allegedly possessing higher qualification.4. the power of the board to prescribe requisite qualification for recruitment to the post of lineman is not being disputed. what is being disputed is the action of the board in not considering the candidates who allegedly possessed higher academic qualification some-what in the same line on the ground that they do not possess national apprenticeship certificate. the question thus, raised in these petitions is whether the petitioners who are holders of three year diploma in electrical trade can claim employment to the post for which the prescribed qualification is national apprenticeship certificate. we are of the view that the petitioners who do not possess the qualification as prescribed for the post of lineman, i.e. national apprenticeship certificate, are not eligible to be considered. mere possessing of diploma in electrical trade is not much of significance keeping in view the practical training essential for efficient discharge of duties and functions of lineman. it is the case of the respondents that prescribing of national apprenticeship certificate for the post of lineman is based upon rational considerations. it was keeping in view the functions and duties of lineman that the board decided that candidates with national apprenticeship certificate in the trade of lineman which has two years practical training followed by an examination would be more suitable for discharging the duties of lineman which are of technical nature. it also decided that qualification of diploma in electrical trade is not a substitute to the national apprenticeship certificate in view of the peculiar nature of specialised training in the trade of lineman. we find no illegality or irrationality in the matter of prescription of qualification of national apprenticeship certificate for the post of lineman. it is not for the court to consider the relevance of qualification prescribed for various posts, but it is the employer who is entitled to prescribe the mode and method of recruitment and the essential qualifications. in this context, reference may be made to two full bench decision; one of karnataka high court in the karnataka public service commission by its chairman, bangalore and ors. v. n.c. hugar, 1981(1) s.l.r. 469; and the other of the this court in som dutt v. state of haryana and anr., 1983(3) s.l.r. 141. in karnataka public service commission's case (supra), question no.1 posed before the full bench was 'if a candidate possesses a higher educational qualification than the minimum educational qualification prescribed for a post, is he eligible for being appointed to that post?'. the majority answered that the eligibility for being appointed depends on the question whether the candidate possesses the minimum qualification prescribed for the post. it held that if in addition to theminimum qualification prescribed for the post the candidate possesses any further qualification, he will not be ineligible for the post the full bench observed'if the candidate does not possess the qualifications that are prescribed by the rules, the question as to whether some other qualification possessed, by the candidate is higher or not, does not arise for consideration. in this context, it is better to clarify what the expression 'higher qualification than the one prescribed by the rules means. this can better be explained by illustrations. if 'a' is the qualification prescribed by the rule then if a person who after acquiring the qualification 'a', has acquired a further or superior qualification 'b' in the same field, such a person can be regarded as a person possessing a qualification higher than the prescribed qualification. such person is undoubtedly qualified inasmuch as he possesses the prescribed qualification 'a'. the fact that he also possesses a further qualification 'b', which may be regarded as higher qualification cannot render him unqualified. in such a case the question of deciding whether 'b' is a higher qualification does not at all arise. if second class degree is prescribed as the minimum qualification for a post, a person possessing a first class degree cannot be regarded as ineligible because such a candidate in addition to securing the marks required for obtaining a second class degree has obtained larger number of marks. similarly, a candidate who has passed ix standard, after passing the viii standard cannot be regarded as ineligible if the minimum qualification prescribed for the post is viii standard. in such cases the principle, that larger includes the smaller applies. but this principle will not apply to cases where a diploma or certificate in a particular subject granted by a particular institution is prescribed as the minimum qualification for the post and the candidate has not acquired any such qualification but has obtained a degree in the same subject from another institution. but, if 'a' is the prescribed qualification and the candidate does not possess the said qualification 'a' but possess 'b' qualification the question that may arise for consideration is as to whether the qualification 'b' possessed by the candidate is higher than the qualification 'a'. in such a situation, it is not open in our opinion, for the public service commission to embark upon an investigation of the question as to whether the qualification 'b' possessed by the candidate is higher than the prescribed qualification 'a' inasmuch as such power is not conferred on the public service commission. the power of prescribing the qualification being with the rule making authority, it not having prescribed 'b' as one of the qualifications for the post, the said qualification cannot be taken into consideration. to hold otherwise would lead to innumerable problems and difficulties.'the full bench of this court in som dutt's case (supra) while concurring with the afore-mentioned observations of karnataka high court in karnataka public service commission's case, held that even though an educational qualification may be higher it may not be necessarily suited to or particularly tailored to the needs of the post. it further held that where the qualifications for a post are spelt out by a statute, or precisely prescribed by the employer-state, it can insist on a literal adherence thereto irrespective of either an unprescribed equivalent or a higher academic qualification therefrom possessed by candidates seeking appointments to the post.5. in the light of binding precedent of the full bench of this court m som dutt's case (supra), we are of the view that when qualifications have been prescribed for a post that cannot be obliterated by giving a direction to the employer to consider those who do not possess that qualification.6. it is then contended by learned counsel for the petitioners that though in 1988 vide office order no.129 dated 23.12.1988 the board prescribed the qualification for the post of lineman as matric or equivalent with national apprenticeship certificate in the trade of lineman, but again vide recruitment circular no. 179/94 dated 4.4.1994 the board invited applications also from the employees working in the board on regular/work-charged basis who possessed matriculation, i.t.i. electrical or equivalent trade certificates. it is thus contended that the board cannot act arbitrarily whenever it liked by changing the qualification for the same post in answer to what is being argued by the counsel, the board in para 8 of its written statement has submitted that 'in order not to increase the total cadre strength, the existing vacancies of lineman were sought to be filled up from amongst in-service candidates. initially the possession of national apprenticeship certificate in the trade of linemen was prescribed as essential. however, it was found that candidates sufficient to fill up the existing vacancies were not available. accordingly, this qualification was relaxed by the competent authority.' we find no infirmity in the action of the board in relaxing the qualification due to non-availability of sufficient number ofcandidates, particularly when the board has specifically averred in the written statement that now the vacancies are to be filled up from the open market as sufficient number of candidates with requisite qualifications are available.7. accordingly, there being no merit in the writ petitions, the same are dismissed. no costs.