Kerala High Court
Jaleel C.N vs The Administrator on 23 September, 2010
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 18TH DAY OF NOVEMBER 2014/27TH KARTHIKA, 1936
OP (CAT).No. 2431 of 2011 (Z)
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AGAINST THE JUDGMENT IN OA 546/2008 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 23.9.2010
PETITIONER(S):
--------------------------
JALEEL C.N, AGED 42,S/O.KASMI KOYA C.P
CHERIYANNALLAL HOUSE, KALPENI ISLAND
U.T OF LAKSADWEEP.
BY ADVS.SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
RESPONDENT(S):
----------------------------
1. THE ADMINISTRATOR, UNION TERRITORY OF
LAKSHADWEEEP, KAVARATTI. 682555
2. THE EXECUTIVE ENGINEER, DEPARTMENT OF
ELECTRICITY, KAVARATTI. 682555
3. MUSTHAFAM.V, MATHIL VALIYAMMADA HOUSE,
KALPENI ISLAND, UNION TERRITORY OF LAKSHADWEEP. 682557
4. AHMAD KOYA P.O, PUTHIYA PURA HOUSE,
BITHRA ISLAND, UNION TERRITORY OF LAKSHADWEEP. 682555
5.SAYED MOHAMMED MUHSIN A., AHIKAKAM HOUSE,
ANDROTH ISLAND, UNION TERRITORY OF LAKSHADWEEP.682555
6. BADARUDHEEN A.P,AMINAPURA HOUSE,
AMINI ISLAND, UNION TERRITORY OF LAKSHADWEEP.682555
7. SAJID KHAN M.G, MAMORUNEDGOTHI,
MINICOY ISLAND, UNION TERRITORY OF LAKSHADWEEP.682555
8. THAJUL MULLOOK B,CHETHLATH ISLAND,
UNION TERRITORY OF LAKSHADWEEP.
R,R1-2 BY ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN
R3 TO R5 BY ADV.T.SETHUMADHAVAN
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 18-11-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT).2431/11
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF the ORIGINAL APPLICATION AS OA.546/2008 ALONG WITH ITS
ANNEXURES.
EXT.P2: TRUE COPY OF THE REPLY STATEMENT IN O.A.546/2008 FILED BY
RESPONDENTS 1 AND 2.
EXT.P3:TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN OA.546/2008.
EXT.P4: TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY
RESPONDENTS 1 AND 2 IN OA.546/2008.
EXT.P5:TRUE COPY OF THE ORDER IN OA.546/2008 DATED 23.9.2010.
/TRUE COPY/
PS TO JUDGE
ANTONY DOMINIC & ANIL K.NARENDRAN, JJ.
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O.P(CAT).No.2431 of 2011
-----------------------------------
Dated this the 18th day of November, 2014
JUDGMENT
Antony Dominic, J.
1.This Original Petition is filed challenging the order passed by the Central Administrative Tribunal, Ernakulam Bench dismissing OA.546/08. The said OA was filed by the petitioner, an engineering graduate, challenging Annexure A1 notification issued by the respondents, inviting applications for appointment to the post of Junior Engineer (Electrical) in the Lakshadweep Electricity Department and Annexure A9, the select list of candidates finalised in pursuance of Annexure A1. The OA having been dismissed by the Tribunal, this original petition is filed.
2.We heard learned counsel for the petitioner and learned counsel appearing for respondents 1 and 2.
3.As far as Annexure A1 notification issued for appointment to the post of Junior Engineer (Electrical) is concerned, three contentions are raised before us by the learned counsel for the OP(CAT).2431/11 2 petitioner. First contention is that graduate engineers who responded to the post of Junior Engineer (Electrical) are entitled to weightage of 15% of the total marks. This contention is raised relying on Annexure A8, an order issued by the Administration of the Union Territory of Lakshadweep on 28.4.2007. This order, in so far as it is relevant, provides that in any recruitment to group 'C' posts, up to 15% of marks of the total marks may be assigned to desirable qualification/ experience/higher qualifications, taking into account the provisions of the recruitment rules.
4.The second contention raised is that the recruitment rule for the post of Junior Engineer (Electrical), to the extent it equates degree and diploma in Electrical Engineering, is arbitrary and unconstitutional. The third and the last contention raised is that Annexure A1 notification was issued without complying with the requirement of reservation as provided under the Persons with Disabilities (Equal Opportunities, protection of Rights and Full Participation) Act, 1995.
OP(CAT).2431/11 3
5.In so far as the first contention claiming weightage of 15% of the total marks is concerned, as we have already mentioned, it is evident from Annexure A8 that such weightage could have been claimed by the petitioner herein only if the qualification of degree possessed by him is a qualification higher to what is prescribed or a desirable qualification. Annexure A1, the notification issued, shows that the qualifications prescribed for the post of Junior Engineer (Electrical) are degree in Electrical Engineering of a recognized university or diploma in Electrical Engineering of a recognized institution with two years experience in anyone of the fields specified therein. Evidently therefore, the recruitment rules do not prescribe any desirable qualification and the degree possessed by the petitioner is one of the prescribed qualifications. This therefore means that the qualification of degree in Electrical Engineering possessed by the petitioner is neither a desirable qualification nor a higher qualification in terms of the provisions of Annexure A8 order dated 28.4.2007, entitling the petitioner to claim the benefit of weightage up to 15% of the OP(CAT).2431/11 4 marks. Therefore, the first contention raised by the petitioner is to be rejected and we do so.
6. The second contention raised is that the equation of degree in Electrical Engineering and diploma in Electrical Engineering in the recruitment rules is arbitrary and unconstitutional. It is contended before us that a candidate who has passed matriculation can acquire the diploma by undergoing a two year training whereas a candidate has to undergo training for 4 years and that too, after +2 course, to acquire degree in Engineering. It is also contended that the syllabus prescribed for both these courses are also different. Therefore, according to the counsel, degree and diploma in Electrical Engineering could not have been validly equated by the rule making authority.
7.While in abstract, we do agree with the learned counsel, the question is whether there has been such an equation in the recruitment rules in question. A reading of the recruitment rules show that the qualifications prescribed for the post are degree in OP(CAT).2431/11 5 Electrical Engineering of a recognized University or diploma in Electrical Engineering of a recognized institution with two years experience in anyone of the fields specified in the recruitment rules. In other words, a diploma holder with two years experience in the prescribed field alone is equated with a degree holder for the purpose of recruitment to the post of Junior Engineer (Electrical). Such a provision is common in service jurisprudence and we do not find any illegality in equating the experienced diploma holder with a raw degree holder. This, in our view, does not become arbitrariness justifying its invalidation.
8.The third contention is in relation to the non- compliance of the reservation as provided under the Disabilities Act. It is contended before us that the respondents ought to have reserved two posts for physically handicapped persons and that this obligation is not complied with. However, in the reply statement filed before the Tribunal, the contention raised by the respondents were as follows:
OP(CAT).2431/11 6 "8. On the question of reserving certain posts for physically handicapped person in the category of Junior Engineers it is submitted as follows. A true copy of the statement showing the categories of posts identified for handicapped persons under the Administration is produced herewith and marked as Annexure R1(c). Against 9 categories of posts available with the Dept. only two categories have been identified for appointment against the handicapped quota. As per Annexure R1(c) the reservation for physically handicapped persons under the Electricity Department is as follows:-
Sl.No. Name of post Sanctioned No. of posts strength identified for handicapped persons 1. Junior Engineer,Ele 38 2 2. Tracer 5 1
9. A reply furnished regarding filling up the persons against handicapped quota was furnished to the Directorate of Social Justice, Empowerment & Culture, Kavaratti by this Dept. by letter F.No.40/13/2002 Estt/ele/1523 dated 25.06.2007. A true copy of the above said letter dated 25.06.2007 is produced herewith and marked as Annexure R1(d). As the reservation point is considered on the basis of sanctioned OP(CAT).2431/11 7 strength of posts and the sanctioned strength of Junior Engineer, Electrical is only 38 and reserved point comes only 2. The dept. had made appointments to 2 candidates against the point. No more posting in the handicapped quota can be made until any one of officials appointed against handicapped quota vacates the post. As already stated above, the Junior Engineer, Electrical is not a feeder post of Group "A" posts of Asst. Executive Engineer, Electrical and Executive Engineer, Electrical whereas the Junior Engineer, Electrical is a feeder post of Asst. Engineer, Electrical only."
Reading of the above shows that according to the respondents, the sanctioned strength of posts being 38, the number of posts identified for handicapped persons are two. It is also their case that two persons by name P.P.Aboobacker and A.K.Beefathummabi were appointed to those two identified posts.
9.In the rejoinder filed by the petitioner, he has disputed the claim made by the respondents in the reply statement by stating thus:
"4. The contention of the Respondents that the application is not based on a single cause of action OP(CAT).2431/11 8 and the reliefs prayed are not consequential to one another and hence hit by Rule 10 of CAT (Procedure) Rules is denied. It is submitted that Ann-A1 is a notification dated 16.5.08 issued for appointment to the post of Junior Engineer (Electrical). Ann-A8 criteria for award of marks were in existence as is dated as early as 28.4.07. The cause of action and the prayer sought are iterlinked and is a matter relating to the selection and appointment of the junior Engineer (Electrical). Admittedly two posts are liable to be reserved for physically handicapped candidates under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955. The Ann-A1 was issued without following this mandate. The contention of the Respondents on the strength of Ann-R1(d) that 2 posts of Junior Engineers reserved for handicapped persons have been filled is false in as much as the appointment of Smt.A.K.Beefathummabi as per order dated 6.2.04 is not one against the post notified for the physically handicapped persons. The Respondents issued notice dated 25.4.03 inviting application to the one post of Junior Engineer (Electrical) in open quota. A true copy of the said notification is produced herewith and marked for reference as Annexure A10. Pursuant to Ann-A10 notification, Smt.A.K.Beefathummabi applied and was selected by order dated 6.2.2004. This selection and appointment as is clear from Ann-A10 is not one made against the reserved seat of handicapped OP(CAT).2431/11 9 persons. In the circumstance admittedly one post of Junior Engineer (Electrical) has to be reserved for physically handicapped persons and that one post out of the vacancies notified under Ann-A1 notification is liable to be filled by handicapped persons from among the qualified handicapped persons. The Applicant is claiming a right to be considered for appointment against this reserved quota also which is liable to be filled under the provisions of the Persons with Disabilities (Equal Opportunities, protection of Rights and Full Participation) Act, 1995. The Respondents is attempting to deny the reserved seat for handicapped persons citing the appointment of Smt.A.K.Beefathummabi named in Ann-R1(d) who was appointed under general quota as is evident from Ann-A10. There is no bonafide in the said contention and the claim of the Applicant for reserved quota is therefore liable to be allowed.
8. In Ann-A9 rank list no reservation is given to the physically handicapped persons thereby violating the mandate of the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Junior Engineer (Electrical) being a Group 'C' post and is one identified for reservation to physically handicapped persons, the administration was bound under the aforesaid Act to reserve 3% in favour of the physically handicapped persons but that mandate has been flouted inspite being alerted OP(CAT).2431/11 10 about this illegality. There is only one handicapped person working in Group C in the Department of Electricity. In the circumstance the rank list drawn vide Ann-A9 is illegal."
10.Reading of the above paragraphs shows that in the rejoinder filed by him, the petitioner has disputed only the appointment of Smt.A.K.Beefathummabi. According to him, this appointment made in pursuance of Annexure 10 notification is against a general vacancy and therefore, cannot be claimed as an appointment made in discharge of the statutory obligation created under the Disabilities Act. The question to be considered in the context of this contention is whether the respondents have complied with the requirement of reservation as provided in the Disabilities Act. As per the provisions of the Act, 3% reservation should be provided and the 33rd, 66th and 99th posts out of 100 posts are to be reserved. The records show that the cadre strength of the post of Electrical Engineer is 38. If that be so, going by the provisions of the Act, the statutory obligation is to reserve only one post. If this be the statutory obligation and as the petitioner OP(CAT).2431/11 11 himself raised dispute only in relation to the appointment of Smt.A.K.Beefathummabi and accepted that the appointment of Smt.A.K.Beefathummabi was made against a post reserved in terms of the provisions of the Act, the statutory obligation is complied with. This, therefore, shows that the third contention raised by the counsel for the petitioner also does not merit acceptance.
11.In the aforesaid circumstances, we do not find any error in the view taken by the Tribunal dismissing OA.546/08.
Original petition fails. It is accordingly dismissed.
Sd/-
ANTONY DOMINIC, Judge.
Sd/-
ANIL K.NARENDRAN, Judge.
kkb.