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Bombay High Court
Meshram vs 4] Director on 9 November, 2011
Bench: B. P. Dharmadhikari, A. B. Chaudhari
                                     1




                                                                     
     IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR 
                       BENCH NAGPUR.




                                             
             WRIT    PETITION     NO.    317    OF     1997   




                                            
    Hemantkumar Sadashivrao




                                   
    Meshram, aged 34 yrs., Occu.
    Instructor, c/o P. L. Suryawanshi 
                     
    at & Post Jambhulghat, Tah 
    Chimur, Distt. Chandrapur.                            PETITIONER.
                    
                                   VERSUS
      
   



    1] The State of Maharashtra,
    thr. Its Secretary, Higher &
    Technical Education & Employment
    Department, Mantralaya, Extension





    Building, Mumbai. 

    2] The Deputy Director, Vocational
    Education & Training, Regional
    Office, Civil Lines, Nagpur.





    3] Principal, Nehru Junior College,
    Chimur,m Distt. Chandrapur.

    4] Director, Vocational Education
    & Training, 3, Mahapalika Road,
    Mumbai.                                               RESPONDENTS.

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Shri. Anil Mardikar, Counsel for the petitioner.

Smt. K. S. Joshi, AGP for the respondents 1, 2 & 4.

CORAM: B. P. DHARMADHIKARI &
A.

B. CHAUDHARI JJ.

Date: 9th NOVEMBER 2011.

ORAL JUDGMENT: (Per B.P. DHARMADHIKARI J.)

Heard Shri Mardikar, learned counsel for the petitioner

and Smt. Joshi, learned AGP for respondents 1, 2 and 4. No body

has appeared for respondent no. 3 though served.

2] Shri Mardikar learned counsel at the out set points out

that one of the prayer in the petition is to direct the respondent

no. 3 to pay to petitioner his salary from May 1995 till the date of

filing of petition and to continue to do so during its pendency.

However, he fairly pointed out that respondent no. 3 School is

already closed down. It is, therefore, obvious that no such relief

can be given in present writ petition against respondent no. 3

atleast at this stage.

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3] The other contention of Shri Mardikar, learned counsel

for the petitioner is though school is closed down, benefit of

provisions of Rule 25(A) of Maharashtra Employees of Private

Schools (Conditions of Service) Rules 1981, is not extended to

petitioner on the ground that his petition was pending. Petitioner

holds qualification of Diploma in Plant Engineering & on the

strength of this qualification, he was given employment in

respondent no. 3-college as Instructor in 1992 and after almost

three years the respondent no. 2 refused to grant approval on the

ground that he does not possess Diploma in Mechanical

Engineering. He has invited our attention to the fact of filing of

Writ Petition No. 2992 of 1995 before this Court and its

withdrawal on 02.04.1996 as the State Government was then in

process of considering the equivalence of said Diploma with

Diploma in Mechanical Engineering. He has invited attention to

impugned order dated 04.12.1996 passed by State Government to

urge that instead of considering equivalence between two

diplomas, the suitableness of the candidates holding those

diplomas for employment has been looked into and thus there is

failure to exercise the jurisdiction. Our attention is invited to a

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Report submitted by three member Committee on 07.12.1993 in

this respect, holding that both these Diplomas are equivalent.

Learned counsel states that on 25.04.1990, some courses were

recognized as equivalent and on 16.11.1993 petitioner was

informed that issue of equivalence of his Diploma with Diploma in

Mechanical Engineering was still under consideration. In this

background he contends whether two Diplomas were equivalent

or not, needed to be decided on the basis of the Report of the

Committee dated 07.12.1993 and in the light of the syllabus or

course taught therein. Suitability of the candidates passing out to

perform a particular work or type of job could not have been a

decisive test for said purpose.

4] Learned Assistant Government Pleader on the other

hand has relied upon return as filed. She states that the report

dated 07.12.1993 is prepared by Committee not constituted

statutorily or by State Government and therefore State

Government on 26.12.1995, constituted a Committee of 10

experts. Those experts did not find & recommend grant of

equivalence on 09.08.1996 and after evaluating material on

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record, the State Government has issued the communication

dated 04.12.1996. She points out that the recommendation

dated 09.08.1996 by this Committee of 10 experts has been

accepted by the State Government.

5] During arguments learned AGP also sought time to

produce before this Court the letter dated 09.08.1996 and also

Minutes of discussion of said Expert Committee so as to show to

this Court that Committee has looked into all required facets and

relevant material and thereafter has made recommendation

against the petitioner.

6] Shri Mardikar learned counsel for the petitioner has

opposed any adjournment as according to him impugned order

dated 04.12.1996 is passed by State Government and reasons

given therein are only germane at this stage.

7] The perusal of impugned order dated 04.12.1996 shows

that it contains reference to the letter dated 09.08.1996 submitted

by Committee of 10 member experts. Said letter is in fact the

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recommendation of that Committee. Equivalence of Diploma in

Plant Engineering has been considered in Clause (C) of that order

by State Government. State Government has found that there is

major difference between these two courses but the said

difference is noted to be “for the appointment on the posts in the

Government”. The equivalence has been rejected only on that

account.

8] Vide its report dated 07.12.1993 the Committee of

three members has not looked into the purpose for which the

expertise or education secured by student undergoing that course

was to be utilized. It appears to have compared subjects taught

and treatment given to diploma (plant engineering) for future

The report dated 09.08.1996 by the Expert Committee appointed

by State Government is not before this Court. However, contents

of that report are also not relevant at this stage. State

Government has looked into only one aspect i.e. the fitness of

candidate holding diploma in Plant Engineering for appointment

or employment in its other departments. From return as filed &

from impugned order, it seems that the Government has found

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that insofar as such employment is concerned, courses were

materially different and plant engineers were not possessing the

mechanical knowledge in detail so as to enable them to function

in other departments like B&C, Irrigation, MSEB, Water Supply

etc. as supervisors except power plants.

9] We, therefore, find substance in the contention of Shri

Mardikar that purpose to which knowledge was to be put could

not have a decisive factor while ascertaining the equivalence. The

question was of comparison between two courses and the same

could have been decided only by looking at the curriculum taught

and the extent of knowledge imparted during studies in respective

course. How 10 Members Experts Committee has held that there

is no equivalence & what made them to so opine, is not relevant

because the State Government has not accepted or mentioned that

point of difference. Its order dated 4.12.1996 records only one

reason and it has not come to conclusion that two courses cannot

be viewed as equivalent because of any other difference between

the two. Because of this position we find that even if learned AGP

produces Minutes of said committee or Report of the said

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Committee before us, the said document cannot save the

impugned order. The reason given by State Government is very

specific and State Government has viewed the controversy only

through employment point of view in other departments like B&C,

PWD etc. Its order can not be attempted to be justified by

pointing out some other material on record which State

Government itself has found not necessary to be considered.

10] According to Black’s Law Dictionary (9 th Ed.) word

“equivalent”, when used as an adjective, means equal in value,

force, amount, effect or significance. Second meaning given is

“corresponding in effect or function,nearly equal, virtually

identical”. When it is employed as a noun, it means that which

can perform the same function as an other element or substance.

In 2009 AIR SCW 2027 -“Godrej and Boyce Manufacturing Co.

Ltd. v. State of Maharashtra”, Hon. Apex Court has noted its

explanation as “equal in such properties as affect ourselves or the

use which we make of things,such as value” given in Advanced Law

Lexicon-(3rd Ed.-2005) by P. Ramanatha Aiyar. It also finds that

Webster’s Third New International Dictionary defines it as an

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adjective as” 1 : equal in force or amount…..equal in area or

volume but not admitting of superposition (a square – to a

triangle) 2 a : like in signification or import 3 a : equal in value,

compensative. After noticing these meanings, following conclusion

reached by Hon. Apex Court are important. It observes that,

“The last of the above makes the meaning of the

word ‘equivalent’ very clear by explaining it in
contradistinction to the word ‘equal’. It says

equivalent is equal in such properties as affect

the use which we make of things. Seen thus any
of the relevant properties, e.g., value, area,
volume, quantity, quality etc. may form the

basis for determining equivalence.”

One can not forget that in present case, the equivalence is

required to be found out as two courses are not same. In AIR

2008 SC (Supp) 1321 “Basic Education Board, U. P. v. Upendra

Rai“, Hon. Apex Court has declared that grant of equivalence

and/or its revocation is an administrative decision in the sole

discretion of the concerned authority, and the Court has nothing

to do with such matters. The matter of equivalence is decided by

experts appointed by the government, and the Court does not

have expertise in such matters. Hence it should exercise judicial

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restraint and not interfere in it.

11] However, when relevant material is lost site of or

irrelevant material is relied upon, the decision making process

itself gets vitiated. Here, the competency of petitioner to function

as plant engineer in power plants is not in dispute. He is found

not holding qualification equivalent to diploma in mechanical

engineering and hence, he is found unfit to function in any other

department. Job requirements for working as an instructor do not

appear to form basis of application of mind. From return as filed

on record, it appears to be the stand of State Government that

unless he obtains more knowledge in the branch of mechanical

engineering by prosecuting graduate course, he can not be posted

in such other departments. We find the tests applied erroneous.

State Government has not found out whether a diploma holder in

mechanical engineering can function as plant engineer or then a

person like petitioner needs to be given preference for that job or

whether he has any special advantage because of his diploma in

plant engineering and a diploma holder in mechanical

engineering lacks it. State Government has on oath asserted that 3

members of earlier Committee were from academic field & had

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nothing to do with employment in PWD, Irrigation etc. State,

being employer, has claimed right to examine such equivalence.

The capacity to function in its employment , thus appears to be a

decisive factor used by it. But, here petitioner was appointed as

instructor to teach students & question of equivalence has arisen

in that backdrop. If in inquiry into equivalence, concentration

has to be only on one facet, whether it should be centered around

only fitness for employment or it has to be his potential to teach.

Has such application of mind all pervasive. Whether opinion of 3

academic experts was totally irrelevant? Presuming that such

enquiry can be only in respect of any one particular angle,

question is whether ability to teach & learning or knowledge

possessed by such diploma holders and bearing of their respective

diplomas thereon, ought to have been & needs to be also the part

of that investigation by an expert committee in order to find out

that equivalence. This aspect of teaching or its relevance, does not

figure in impugned order at all. Purpose for which such

equivalence is required to be ascertained or object behind that

exercise will definitely determine the nature of norms to be

employed. State Government nowhere finds petitioner

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incompetent or not eligible to teach. Filing of Writ Petition No.

2992 of 1995 before this Court by him and its withdrawal on

02.04.1996 as the State Government was then considering the

issue of equivalence is admitted fact. That concentration has to be

based upon relevant material & test. We, therefore, find enquiry

undertaken by the Sate Government without reference to context

& not in right perspective. This error in impugned exercise can

not be supplemented by producing any records not considered by

the State. The said order or communication therefore, suffers

from non-application of mind & is unsustainable.

12] We, therefore, quash and set aside the order dated

04.12.1996. We direct the respondent no.1 to consider the issue

of equivalence independently, and without any regard to the

purpose for which the knowledge imparted during that course is

to be put. The appropriateness of grant of such equivalence with

employment or its use is entirely a different issue and can not be

the sole deciding factor . State Government may ,in a given case,

say that a candidate with particular qualification is not fit for a

particular job. However, that cannot be a reason to hold in all

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cases, the courses are not equivalent.

13] Hence, we direct respondent no.1 to consider the issue

of equivalence again afresh as early as possible and in any case

within a period of four months from today. Needless to mention

that if the qualification of petitioner is found equivalent to

Diploma in Mechanical Engineering, he will then be free to raise

claim for absorption under Rule 25(A) of the Maharashtra

Employees of Private Schools (Conditions of Service) Rules, 1981

along with claim for salary in accordance with law.

14] Rule is made absolute accordingly. Writ Petition is

thus partly allowed. However, in the circumstances of the case

there shall be no order as to costs. Certified copy be expedited.

                             JUDGE                                 JUDGE



    svk
                                            




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