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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. ::: Downloaded on – 09/06/2013 17:54:36 :::
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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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