Central Administrative Tribunal - Allahabad
Bhaskar Mishra vs Union Of India Through Principal ... on 31 March, 2011
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 31st DAY OF March 2011) HONBLE DR.K.B.S. RAJAN, MEMBER (J) HONBLE MR. S.N. SHUKLA, MEMBER (A) Original Application No.993 of 2009 (U/S 19, Administrative Tribunal Act, 1985) Bhaskar Mishra, Son of Sri Shriniwas Resident of 63 E/13 G, Beli Colony Stanley Road-Allahabad, District- Allahabad (U.P.) Applicant By Advocate: Shri Gurez Khan Versus 1. Union of India through Principal Secretary, Ministry of Human Resources Development, Govt. of India, North Block, New Delhi. 2. Kendriya Vidyalaya Sanghthan, (KVS) under The Human Resources Development, Govt. of India, 18-Institutional Area, Shaheed Jeet Singh Marg, New Delhi through its Commissioner/Chief Executive. 3. Commissioner/Chief Executive Officer, Kendriya Vidyalaya Sangathan, (KVS) under the Human Resources Development, Government of India, 18-Institutional Area, Shaheed Jeet Singh Marg, New Delhi. Respondents By Advocate: Shri N.P. Singh O R D E R
(DELIVERED BY HON. DR. K.B.S. RAJAN, MEMBER-J) The challenge in this case is that the applicant, though possessing M.Com Degree (from Allahabad University) with B.Ed., had not been considered for the post of Graduate Teachers (Commerce) for which notification for selection of 99 posts of such teachers in the Kendriya Vidyalaya (KV for short) was published on 12/18/11/07. He had been successful in the written examination and interview was held but according to him, no marks were awarded to him in the interview with a view to making him ineligible for selection. Under the Right to Information Act when he sought for information relating to his non-selection, he was informed that he not having the M. Com Degree with accounting or cost accounting or financial accounting as main subject, which are the essential qualifications, he was not selected. However, according to the applicant one Ms. Suman with identical degree from Allahabad University had been selected as PGT (Commerce) at KV Gwaliar. Also, one Abhishek Tripathi was also selected and he was possessing the same degree.
2. When the Applicant filed writ petition being W.P. 22207 of 2009 before the High Court, the same was dismissed on account of jurisdiction being available with the C.A.T. and thus, the applicant has filed this O.A. praying for the following relief(s):-
(a) The respondents be directed to declare and treat the applicant eligible for the post of PGT (Commerce) on the basis of requisite qualification of M.Com having been awarded to the applicant from Allahabad University in year 2001 and further the respondent be directed to declare the selection on the basis by awarding the marks in interview at least about 35 or 40 or as per average of 90 marks of applicant in written examination in comparison to other candidates and grant the appointment to the applicant on the post of PGT (Commerce) on any of the school or KVS forthwith.
(b) Any other and further relief which this Honble Tribunal may deem fit and proper be also awarded to the applicant.
( c) Court of proceeding be awarded to the applicant.
3. Respondents have contested the O.A. The sum and substance of their contention is as follows
(a) The Essential educational qualifications for the post of PGT (Commerce) are Commerce with Accountancy/Cost Accounting/Financial Accountancy as a major subject of study. Holder of Degrees of M.Com in Applied/Business Economics shall not be eligible.
(b) As a part of Preliminary objections the respondents have contended that the KVS which is a registered Society can sue and be sued by the Joint commissioner and as such, the OA which does not implead the Joint Commissioner is liable to be dismissed due to the non joinder of necessary party. Again, when the representation was decided by the Joint commissioner but rejected, challenge of rejection should have been made before the Commissioner, K.V.S. and thus, alternative remedy has not been exhausted. .
4. As regards merits of the matter, the respondents have contended that as per Marks Sheet applicant does not possess the essential qualifications.
5. With regard to the case of Suman and Abhishek, the respondents have stated that it was decided to have these cases reviewed vide letter dated 07-09-2009 and in fact, the services of Suman have been terminated vide letter dated 01-09-2010 - OA No. 1360 of 2010 by the said individual had been decided on 21-09-2010 holding that the alternative remedy be first exhausted. Thus, the individual had preferred a representation and the same is still pending. And, as per the information of the respondents, the said Suman Singh has preferred an O.A. which is still pending and no stay has been granted. One more individual Shri Ajay Kumar Tiwari filed OA No. 31 of 2010 which was decided on 16-02-2010 to avail of alternative remedy. Yet another individual Chandra Bhushan Pandey filed OA No. 234 of 2010 which was also disposed of indexing availability of alternative remedy which should first be exhausted vide order dated 18-02-2010
6. The applicant no doubt has preferred an application before the Joint Commissioner which was rejected. However, he has not challenged the same before the next higher authority, i.e. the Commissioner, K.V.S.
7. Counsel for the applicant argued that the degree possessed by the applicant meets with the requirement as per the recruitment rules and the respondents have discriminated the applicant from the rest of the individuals who also hold identical degree from Allahabad University and have been selected. In all, there are as many as 39 individuals, according to the applicant, who possess the identical degree. Again, the applicant has produced information he had received through the University of Allahabad furnished by the Motilal Nehru Institute of Research and Business Administration stating as under:-
8. The Paper No. II entitled as Management Accounting of M.Com (Previous) comprises of topics from Financial Accounting and Cost Accounting. Accounting/Financial Accounting/Cost Accounting provides the raw material for Management Accounting which stands for decision-making.
9. Counsel for the applicant argued that the respondents cannot contend that the M.Com Degree conferred by Allahabad University cannot be considered to meet the requirement as per the Rules. Though the nomenclature of the subject matter is different, the contents as confirmed by the University includes Financial Accounting and Cost Accounting and that it is only the Accounting/Financial Accounting/Cost Accounting that provide the raw material for Management Accounting which stands for decision making.
10. Counsel for the respondent presented the case and also supplemented it by way of written arguments in which the contentions as raised in the counter and supplementary counter had been reiterated with greater emphasis. Further he had cited the decision in the case of State of Bihar vs Upendra Narain Singh & Ors (2009) 5 SCC 65 to hammer home the point relating to equality clause.
11. Arguments were heard, the pleadings as well as written argument considered. The recruitment rules not only defines the extent of qualification but also confines it by stating as under:-
Commerce with Accountancy/Cost Accounting/Financial Accountancy as a major subject of study. Holder of Degrees of M.Com in Applied/Business Economics shall not be eligible.
12. It is the case of the applicant that he does not come within the excluded category and since many an individual with the qualifications which the applicant possesses had been functioning as PGT(Commerce). In contrast, counsel for the respondents contends that perhaps such persons may be possessing one more degree in M.Com which may be fitting with the aforesaid requirement. However, the matter is stated to be under investigation. (Para 27 and 29 of the written submission refer).
13. The question for consideration is whether the qualification as possessed by the applicant fills the bill as provided for in the recruitment rules; another question is whether others similarly situated have been inducted into the service.
14. Though the respondents have terminated the services of Suman (which is again controverted by the applicant as according to the information he had, the said Suman is still continuing in service under Court orders), and though the matter is under investigation, it would be advisable that the matter should be considered by an expert committee. Normally, when such situation arises, an expert committee is constituted. As for example, in the case of Bihar Public Service Commission v. Kamini,(2007) 5 SCC 519 the Apex Court has observed as under:-
Since there were some cases of this nature, an Expert Committee was constituted by the Commission to consider a question whether a student can be called a graduate in Zoology subject if he/she has cleared the degree examination with Zoology as a subsidiary/optional subject and not as the principal subject. The Committee submitted its report on 24-11-2002. As per the said report, a student will be considered a graduate in the subject if he/she has obtained the degree in that subject at the graduate level. The first respondent, as per the said report, was found ineligible.
15. The above could give an inkling that decision in regard to such issue may be taken by referring the matter to an expert committee. In the instant case, the Allahabad University has linked the subject of Accounting/Cost Accounting/Financial Accounting with Management Accounting and the same cannot be dismissed without due consideration. Again, when the applicant has contended that as many as 39 individuals function with such qualifications, it is essential that it is only by an expert committee that could go deeper into the subject matter to arrive at a conclusion as to whether the qualification of M.Com conferred by the Allahabad University would meet the requirement.
16. In so far as the decisions in various O.As as cited by the respondents in the written submission, none of them had discussed the matter on merit.
17. In view of the above, interest of justice would be met if the respondents are directed to constitute a committee to analyze the matter to arrive at a decision whether the qualification of M.Com conferred upon by the Allahabad University meets the requirement as provided for in the recruitment rules and if so, the applicant should also be considered for the post. In that event, if the applicant is selected, he would be placed at par with others selected in the same selection on the basis of merit obtained by him, his pay shall be fixed notionally from the date his junior in merit position got the appointment, and actually from the date the applicant may hold the post.
18. The commissioner KVS shall take immediate steps to constitute an expert committee preferably of five members, both from inside as well as outside, and the committee so constituted may go into the subject matter and make its recommendation within a period of two months from the date of constitution. On the basis of the same the Executive Body of KVS would decide the issue and the applicant be communicated of the decision within four months from the date of communication of this order.
O.A. is disposed of on the above terms.
19. No cost.
(S.N. Shukla) (Dr. K.B.S. Rajan)
Member-A Member-J
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