AFR

Reserved on 19.11.2019

Delivered on 28.11.2019

Case :- SPECIAL APPEAL No. - 538 of 2018

Appellant :- Brij Raj Krishan

Respondent :- State Of U.P. And 3 Ors

Counsel for Appellant :- Sanjay Kumar Singh,Ashok

Khare,Bhuwan Raj,Ravi Prakash

Counsel for Respondent :- C.S.C.,Avanish

Tripathi,M.N. Singh

Hon'ble Bharati Sapru,J.

Hon'ble Saurabh Shyam Shamshery,J.

(Delivered by Saurabh Shyam Shamshery,J.

1.Heard Shri. S.K. Singh, learned counsel for the

appellant, Shri. Avanish Tripathi and learned

Standing Counsel for respondents.

2.The present special appeal is preferred against

the judgment and order dated 07.5.2018 passed by

the learned Single Judge in Writ-A No.10164 of

2018, whereby the said writ petition filed by the

petitioner-appellant has been dismissed.

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3.The appellant-petitioner had preferred the writ

petition before the learned Singe Judge wherein

following reliefs were sought:

“(i) A writ order or direction in the nature of

mandamus directing the respondent no.3 to allow

the petitioner to appear in practical examination

and further examination which is going to be

scheduled on 25.4.2018, 26.4.2018, 27.4.2018

and 28.4.2018 by treating the training certificate

of petitioner in consonance with the qualification

as being so enumerated in sub para-3 of Cause

11 of the advertisement.

(ii) A writ, order or direction in the nature of

which this Hon’ble Court may deem fit and proper

under the circumstances of the case.

(iii) Award cost to the humble petitioner

throughout of the present writ petition.”

4.Briefly the facts which are relevant for the

disposal of the present special appeal are as

follows:

i. The respondent no.3 (U.P. Public Service

Commission, (hereinafter referred to as

“respondent no.3”) issued an advertisement dated

13.12.2014 bearing No.A-5/E-1/2014 for the post

of Regional Inspector (Tech).

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ii. Clause 11 of the said advertisement prescribed

Essential Qualification for the posts of Regional

Inspector (Tech) Transport Department in

accordance with the U.P. Transport Subordinate

Technical (Fourth Amendment) Service Rules 2014.

For reference, the said essential qualifications are

mentioned hereinafter:

Clause 11: Educational Qualifications:

Mandatory: (1) Essential to pass High Schools

Examination of the Board of High School and

Intermediate Education, Uttar Pradesh or an

examination recognized by the Government as

equivalent there to and

(2) (i) A diploma in Automobile Engineering (3

years course) or

(ii) A diploma in Mechanical Engineering awarded

by the State Board of Technical Education (3 years

Course) or

(iii) Any qualification in either of the above

discipline declared equivalent, by the Central

Government or State Government, and

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(3) Working experience of at least one year in a

reputed automobile workshop which undertakes

repairs of both light motor vehicles, heavy goods

vehicle and heavy passenger motor vehicles fitted

with petrol and diesel engine, and

(4) Must hold a driving license authorizing him to

drive motor cycle, heavy goods vehicle and heavy

passenger motor vehicles;

(5) Must have thorough knowledge of Hindi

language written in Devanagari script.

5.The petitioner-appellant in pursuance of the

abovementioned advertisement submitted online

application on 29.1.2015 wherein he had

mentioned that he possessed all the requisite

essential educational qualifications including

‘Working experience of at least one year’ in a

reputed automobile workshop which undertakes

repairs of both light motor vehicles, heavy goods

vehicle and heavy passenger motor vehicles fitted

with petrol and diesel engine.

6.In the application form, the petitioner-

appellant had also given a declaration “that all the

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entries/statement made in the application are true

complete and correct to the best of my knowledge

and belief”.

7.The petitioner-appellant appeared in the

written test on 08.11.2015. Almost after two years,

the respondent No.3, published a notification dated

14.7.2017, whereby it was directed that the

applicants who had appeared in the examination

for the post of Regional Inspector (Technical) 2014

are required to download the application form

available on the website of the Commission and

send the filled form along with all the certificates of

the essential educational qualifications to the

Commission.

8.Accordingly, the petitioner-appellant

despatched the filled form along with all the

certificates. The petitioner also annexed a working

experience certificate of a reputed automobile work

shop. The certificate was dated 16.5.2016 issued

by the Ghaziabad Automobiles. For reference, the

contents of the said certificate is reproduced

hereinafter:

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“TO WHOM SO EVER IT MAY CONCERN

“This is to certify that Sh. Brijraj Krishan S/

o Sh. Maharaj Krishan R/o B-7 G F Parsvnath

Paradise, Mohan Nagar, Ghaziabad (U.P.) who is

an employee of RTO office Ghaziabad has taken

part time but full fledged training as Motor

Mechanic in the evening session w.e.f.

07/10/2011 to till date without any

remuneration.

He has submitted duly acquired permission

from department in the workshop. He had good

knowledge of Motor Vehicle repairs Overhauling

and inspection of both light motor vehicle, heavy

goods vehicle & heavy passenger motor vehicles

fitted with Petrol & Diesel Engines.

We wish him all success in life &

profession.

For:Ghaziabad Automobiles

Auth.Signatory”

9.The respondent no.3 on 12.4.2018 issued a list

of candidates who were found to be eligible after

scrutinising their records for practical test.

However, the name of the petitioner-appellant was

found missing in the said list. The petitioner-

appellant made a querry before the Commission

and sought specific reasons for rejection of his

application. The Commission provided an E-mail

dated 12.4.2018 communicating the reply from the

respondent no.3, which stated:

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‘FOR THE ABOVE QUESTION KINDLY INFORM

YOU THAT YOU HAVE NOT FULFIL THE

ESSENTIAL QUALIFICATION THAT MENTIONED

ADVERTISEMENT PARA NO-11 SUB PARA-3’ (sic)

This means that the petitioner did not possess the

required working experience of at least one year in

a reputed automobile shop.

10.In these circumstances, the petitioner-

appellant approached before learned Single Judge

by way of filing the writ petition and sought reliefs

as mentioned in paragraph 3 above.

11.Counter and rejoinder affidavits were

exchanged before the learned Single Judge. In the

counter affidavit filed on behalf of the respondent

no.3, it was specifically mentioned that the

petitioner-appellant had part time experience of

repairing work under Ghaziabad Automobile

without any remuneration, therefore, the petitioner

did not hold essential qualification no.3, in terms of

Clause 11 of the advertisement, therefore, his

candidature was rejected by the respondent no.3.

12.Reliance was also placed in the counter

affidavit on the letter dated 08.5.2000 and also the

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decision of the Commission taken in its meeting

held on 31.8.2001 that the part time work and any

work done without any remuneration could not be

treated as an experience within the meaning of

U.P. Transport (Subordinate Technical Service

Rules, 1980) as amended.

13.Rejoinder affidavit was filed before the learned

Single Judge, wherein it was reiterated that the

petitioner- appellant fulfilled all the pre-requisite

qualifications seeking appointment on the post of

Regional Inspector (Tech). The petitioner-appellant

had also filed an amendment application before the

learned Single Judge whereby the letter of

Transport Commissioner dated 08.5.2000 was also

challenged.

14.The learned Single Judge after considering the

submissions made by the parties as well as the

material available on record, dismissed the writ

petition vide judgment and order dated 07.5.2018

and held as under:

“In the facts and circumstances of the

case, this Court is of the view that the

experience certificate dated 16.5.2016 (page '20'

of the paper book) and 13.4.2018 (page '41' of

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the paper book) both being of later date than

last date of the submission of the application

form cannot be taken into consideration to hold

that the petitioner possessed requisite

qualification on the date of submission of the

application form. Challenge to the

communication dated 8th May, 2000 of the

Transport Commissioner to the Secretary, Public

Service Commission is, therefore, of no

relevance.”

15.In these circumstances, the appellant-

petitioner has filed the present special appeal,

questioning the judgment and order dated

07.5.2018 passed by the learned Single Judge.

16.Counter and rejoinder affidavits have been

exchanged.

17.In the counter affidavit, the respondent no.3

had specifically stated that the post of Regional

Inspector (Tech) demands that persons selected

on the said post must possess requisite and perfect

knowledge of work and maintenance of the

machine required to be operated. The intent

behind experience of one year regular work was to

have complete knowledge which could not be

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achieved while working as part time trainee by the

incumbent.

18.In the rejoinder affidavit, the appellant has

reiterated and reaffirmed the grounds and

averments mentioned in the special appeal and

stated that experience certificate of the appellant

was genuine. Remuneration or no remuneration

does not in any way or in any manner renders the

experience certificate obtained by appellant as

nugatory. Appellant had an experience of more

than 1 year which is self evident from the

certificate appended.

19.Shri. S.K. Singh, learned counsel appearing on

behalf of the appellant vehemently argued that the

appellant took part time training from the Ghaziabd

Automobiles, and the training was full fledged

training as motor mechanic in the evening session

(5.30 to 8.30 p.m. daily and full time on Sunday)

w.e.f. 7.10.2011 to 16.5.2016 without any

remuneration. He has also relied upon the

certificate issued by the Ghaziabad Automobiles

dated 16.5.2016, wherein it was certified that the

appellant had good knowledge of motor vehicles

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repairs, overhauling and inspection of both light

motor vehicle and heavy goods vehicle and heavy

passenger motor vehicles fitted with petrol and

diesel engines.

20. Learned counsel for the appellant further

submitted that for the purpose of training the

department had granted requisite permission and

the training period was more than one year as

required for the purpose of selection. Even though

it was part time, it could not be said that the

appellant had not gained adequate experience in

that field. The advertisement had not distinguished

the experience certificate on the basis of full time

or part time, therefore, the rejection of his

candidature was not correct.

21.Per contra, learned Standing Counsel has

opposed the submissions made by the learned

counsel for the appellant on the ground that the

experience certificate required under the rules was

to be based on the full fledged training and the

certificate based on part time training would not be

considered to be sufficient for essential educational

qualifications. He placed reliance on the

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Government Order dated 08.5.2000 as well as the

decision of the Commission taken on 31.8.2001 to

the effect that the part time work and work done

without remuneration would not be treated as

experience within the meaning of Uttar Pradesh

Transport Rules, 1988 as amended. He further

submitted that last date of submission of

application was 29.1.2015, whereas the certificate

submitted by the appellant-petitioner was dated

16.5.2016 and 13.4.2018, therefore, appellant was

not qualified on the date of submission of form.

22.We have considered the submissions made by

the learned counsel for the rival parties and

perused the record.

23.One of the essential educational qualifications

for the post of Regional Inspector (Technical) was

“(3) Working experience of at least one year in a

reputed automobile workshop which undertakes

repairs of both light motor vehicles, heavy goods

vehicle and heavy passenger motor vehicles fitted

with petrol and diesel engine.” The appellant had

submitted two documents first was the certificate

dated 16.5.2016 issued by the Ghaziabad

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Automobiles which certifies that the appellant-

petitioner had taken part-time but full fledged

training as motor mechanic in the evening session

w.e.f. 7.10.2011 till date without any remuneration

and second was a certificate dated 13.4.2018

issued by the Ghaziabad Automobiles which states

that the petitioner had good knowledge of motor

vehicle repairs, overhauling and inspection of both

light motor vehicles, heavy goods vehicles and

heavy passenger motor vehicles fitted with petrol

and Diesel engines. Both of these certificates were

issued after the last date of submission of

application form which was 03.2.2015, therefore,

the learned Single Judge has rightly held that the

petitioner did not possess requisite experience as

on the last date of submission of application form.

24. The appellant had undertaken training on part

time basis, which could not be treated at par to the

candidates who had undertaken full time training

especially when there was a Government Order

dated 8.5.2000 as well as the decision of the

Commission dated 31.8.2001 to the contrary that

the part time working and work without

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remuneration would not be treated as an

experience under the relevant rules.

25. Learned counsel for the appellant has failed to

show any material that the part time training is

equivalent to the full time training.

26.The purpose of one year regular training is

that the person must possess requisite and perfect

knowledge of work and maintenance of the

machine required to be operated.There is no

challenge to any of the requisite essential

qualifications.

27.Having heard learned counsel for the parties

and having perused the material on record as well

as the impugned judgment and order passed by

the learned single judge, we are of the considered

opinion that one year part time work that too

without remuneration in Ghaziabad Automobiles

undertaken by the appellant is nothing but a

training acquired by the appellant with the firm,

cannot be covered and considered in the category

of ‘Working Experience’ in terms of the

advertisement. As such there is no illegality in the

impugned judgment and order of the learned

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Single Judge, which calls for no interference by this

Court and the appeal deserves to be dismissed.

28. In view of the above, the appeal is dismissed.

No costs.

Order Date:28.11.2019.

SB