Central Administrative Tribunal - Allahabad
Vineet Pandey vs Kvs on 27 February, 2024
(Reserved)
Central Administrative Tribunal, Allahabad
Bench Allahabad
****
Original Application No.10/2024
This the 27th Day of February, 2024.
Hon'ble Mr. Justice B.K. Shrivastava, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Vineet Pandey aged 24 years S/o Pramod Kumar Pandey
R/o-Dhananjaypur, Chhahin, Sultanpur (Sarnath), Varanasi.
...........Applicant
By Advocate: Shri Udai Chandani
Versus
1. Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed
Jeet Singh Marg, New Delhi through its Commissioner.
2- Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed
Jeet Singh Marg, New Delhi through its Joint Commissioner
(Personnel).
3- Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed
Jeet Singh Marg, New Delhi through its Joint Commissioner
(Administration-I).
...... Respondents
By Advocate: Shri D.P. Singh
ORDER
[Delivered by Hon'ble Mr. Justice B.K. Shrivatava, Member (J)] This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 on 02.01.2024 for the following relief(s) mentioned in Para-8 of the OA:-
Page No.2
A) To direct the respondents to consider the candidature of the applicant on the post of primary teacher in pursuance of advertisement no.16 of 2022 notified by the respondent department within a stipulated period.
B) To direct the respondent department to give the benefit of relaxation up to 5% in the qualifying marks as provided for the physically handicapped (virtually handicap) candidate.
C) To issue an order or direction may deem fit and proper in the facts and circumstances of the case.
D) To award the cost to the applicant.
2. It is not in dispute that KVS (Kendriya Vidyalaya Sangathan) issued advertisement No.16 in various Newspapers on
02.12.2022 and also published in Employment News dated 03.12.2022 for filling up the post of Primary Teacher in KVS. The online applications were invited. Last date was 26.12.2022, which was extended up to 02.02.2023. The applicant submitted the online application (Annexure A-3) and thereafter the list of candidates, shortlisted for Interview, was issued by Annexure A-4. The applicant's name was found place in the aforesaid list at Sl. No.2561. It is also not in dispute that the applicant was a visually handicapped person having a disability of about 75%. When the applicant appeared for the personal interview on 03.11.2023, he was not allowed to appear in the interview.
3. As per the applicant, he fulfills the criteria for the post regarding the prescribed education. As per circular dated 29.07.2011, he Page No.3 was entitled to a relaxation of 5%marks in qualifying marks. He got 46% marks in the Intermediate Examination, and the relaxation of 5% was available. Respondent department rejected his candidature upon the ground that he did not have the prescribed qualification of 50% marks in the Intermediate Examination. Therefore, the applicant filed this OA for the relief stated in Para-1 of this order.
4. The respondents opposed the contention by filing the counter affidavit on 30.01.2024. It is submitted by the respondents that the applicant was not allowed for the Interview because he got only 46% marks in his Intermediate Examination while the minimum qualification was prescribed Intermediate with 50% marks. The applicant also mentioned false information in his online application form in which he shows above 50% marks in the Intermediate Examination. The KVS adopted the Rule regarding the reservation of SC/ST, OBC and PH categories, but did not adopt the relaxation in the qualifying mark. The applicant had appeared in the examination. He did not challenge the aforesaid notification before the examination. Therefore, at present, the applicant cannot seek any relief. He was not entitled to a relaxation of 5% marks as per the advertisement (Annexure A-2).
5. It is submitted by the applicant that the Government Rules applicable upon the respondents and the applicant was entitled to get the 5% relaxation in the qualifying marks. The counsel draws attention Page No.4 towards the notification dated 29.07.2011 Annexure A-5. In the upper part of the aforesaid notification regarding the minimum qualification, it is mentioned:-
"National Council for teacher Education NOTIFICATION New Delhi, the 29th July, 2011 F. No. 61-1/2011/NCTE(N&S)- In exercise of the powers conferred by sub-section (1) of the Section 23 of Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009) and in pursuance of the Notification No. S.O. 750(E), dated 31st March, 2010 issued by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, the National Council for Teacher Education (NCTE) hereby makes the following amendments to the Notification No. 215 dated 25th August, 2010 published in the Gazette of India, Extraordinary, Part-III, Section-4, vide F.No. 61-1/2011-NCTE(N&S), dated the 23rd August, 2010, laying down the minimum qualifications for a person to be eligible for appointment as a teacher (hereby referred to as the Principal Notification), namely:
(1) For sub-para (1) of para 1 of the Principal Notification, the following shall be substituted, namely:
1. Minimum Qualifications:
(1) Classes I-V
(a) Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations, 2002.
He also draws attention towards the Reservation Policy in the aforesaid order. It is provided:-
"(ii) Reservation Policy Relaxation up to 5% in the qualifying marks shall be allowed to the candidates belonging to reserved categories, such as SC/ST/OBC/PH."
6. Now, if we see the online application submitted by the applicant, then it appears from the aforesaid application, Annexure A-3, the applicant mentioned the details regarding his qualification as under:- Page No.5
Qualifying Exam Marks Details Year of Passing/appearing: 2021 Pass Status: Passed University Board Name: Any Recognised Board/ University/ Open school - NIEPVD DEHARADUN UTTARAKHAND Course/Stream Name: Senior Secondary(or its equivalent) with Obtained Marks: 1944 at least 50% marks and 2-year Marks(%): 73.78 Diploma in Education (Special Education).
Result Mods: Percentage Total Marks: 2635 Subject(s): Diploma in Special Education Therefore, it appears that it was clearly mentioned that the requirement is "Senior Secondary or its equivalent with at least 50 marks" two-year diploma in education (Special Education). Against the aforesaid column, the applicant mentioned the passing year 2021, obtained marks 1944 and the percentage of marks 73.78, while as per the mark sheet of the applicant relating to the Senior School Certificate Examination, 2016 he passed the aforesaid examination in 2016 not in the year 2021 which has been mentioned in the online application. He did not secure the 73.78 marks in the aforesaid examination, he got only 46% marks. Therefore, prima facie, it can be said that the applicant concealed the fact of the actual marks obtained and passing year of the Senior Secondary School Examination. He mentioned the percentage and year of the diploma at Pages 29-30. Therefore, the intention of the applicant cannot be said a fair intention.Page No.6
7. The notification dated 29.07.2011 prescribed the age relaxation also. In the advertisement, Annexure A-2, the age relaxation has been provided. It is mentioned in Para-2 of the aforesaid advertisement (Page-35 of OA) that:-
"Reservation for persons with Benchmark Disabilities has been ensured in accordance with the provisions of Rights of Persons with Disabilities Act 2016 and instructions issued by GOI in this regard Note:
(i) The number of vacancies advertised are tentative and these may increase or decrease.
(ii) Reservation for SC/ST/OBC/EWS/PH category will be as per Govt. of India Rules.
(iii) Age relaxation to SC/ST/OBC/PH/Ex-Servicemen/ Women category will be given as per Govt. of India Rules."
8. The counsel for the applicant submitted that the aforesaid clause shows that all Government Rules were applicable; therefore, 5% relaxation should also be granted. The respondents opposed the aforesaid contention. Reading of the aforesaid clause shows that the aforesaid clause is only related to the reservation of some castes and also relaxation in age. There is no any indication for relaxation in the qualifying marks. There was no any indication in the advertisement for granting the relaxation in the marks of the qualifying examination. The applicant was very well known to the aforesaid facts but he did not challenge the aforesaid notification before appearing in the examination.
9. In Ashok Kumar Vs. State of Bihar, 2017 (4) SCC 357 [21.10.2016] [3 judges] the Supreme Court said that Candidates who Page No.7 have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful. Court said in para 11 as under :-
11. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate.
10. In the aforesaid case the supreme court also considered the various earlier judgments and mentioned:-
"13. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100 this Court held that :
"18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same... (See also Munindra Kumar v. Rajiv Govil, (1991) 3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724)."
14. The same view was reiterated in Amlan Jyoti Borroah (supra) where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful.
15. In Manish Kumar Shah v. State of Bihar, (2010) 12 SCC 576 , the same principle was reiterated in the following observations :
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the Petitioner is not entitled to Page No.8 challenge the criteria or process of selection. Surely, if the Petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in MadanLal v. State of J. and K. MANU/SC/0208/1995 : (1995) 3 SCC 486, MarripatiNagaraja v. Government of Andhra Pradesh and Ors. MANU/SC/8040/2007 :
(2007) 11 SCC 522, Dhananjay Malik and Ors. v. State of Uttaranchal and Ors. MANU/SC/7287/2008 : (2008) 4 SCC 171, AmlanJyoti Borooah v. State of Assam MANU / SC / 0077 / 2009 : (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines and Ors. (supra)."
16. In Vijendra Kumar Verma v. Public Service Commission, (2011) 1 SCC 150 , candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible.
17. In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309 , candidates who were competing for the post of Physiotherapist in the State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that :
"18. It is settled law that a person who consciously takes partin the process of selection cannot, thereafter, turn around and question the method of selection and its outcome."
18. In Chandigarh Administration v. Jasmine Kaur, (2014) 10 SCC 521, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493, this Court held that :
"17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was Page No.9 a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted."
This principle has been reiterated in a recent judgment in Madras Institute of Development v. S.K. Shiva Subaramanyam, (2016) 1 SCC
454."
11. As far as the relaxation of 5% mark is concerned, it is not clear from the aforesaid notification that the relaxation is provided for the qualification prescribed for the post or for the qualifying examination conducted for the selection. For some selections, some qualifying marks may be prescribed by the concerned department for qualifying the candidate for the purpose of appearing in the interview. In view of this court, the intention of the aforesaid circular was to provide 5% relaxation in the aforesaid competitive examination, in which the minimum qualifying marks were prescribed. The aforesaid clause cannot give the relaxation in the percentage of the Educational Qualification.
12. The department, who conducted the examination, has the power to determine and decide the relevancy and the suitability of the qualification for any post. For this purpose, the respondents' counsel also cited some case laws.
Page No.10
13. In the case of Chief Manager Punjab National bank & Anr. Vs. Anit Kumar Das, 2021 SCC 80 = 2020 SCC Online 897 [03.11.2020] the Supreme Court said that It is for employer to determine and decide relevancy and suitability of qualifications for any post. The Court considered various case laws and held:-
"17.3. Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the courts to consider and assess. A greater latitude is permitted by the courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an institution or an industry or an establishment as the case may be. The courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts. In the present case, prescribing the eligibility criteria/educational qualification that a graduate candidate shall not be eligible and the candidate must have passed 12th standard is justified and as observed hereinabove, it is a conscious decision taken by the Bank which is in force since 2008. Therefore, the High Court has clearly erred in directing the appellant Bank to allow the respondent-original writ petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement."
14. In the Case of Deepak Singh Vs. State of U.P., 2019(7) ADJ 453 = 2020(1) All. L. J. 596 [23.07.2019], the Full Bench of Allahabad High Court also discussed various cases and said in para 48 ;-
"In view of the above referred judgment, we have no hesitation in holding that the State as an employer, is well equipped to decide the desirable qualification or may prescribe additional qualification including any grant of preference. The court cannot lay down the conditions of eligibility much less; it can go into the question of desirable qualification being at par with the essential qualification."
15. In the case of Randhir Singh Vs. State of U.P., Writ-C No. 33392 of 2015 decided on 01.07.2005 by D.B. of Allahabad High Court [Neutral Citation No. - 2015:AHC:88288-DB] the petitioner challenged the qualifications prescribed by Government Order dated 25 December Page No.11 2014 for appointment to the post of Short-term Instructor (Horticulture and Food Preservation). The educational qualifications prescribed was "B. Sc Agriculture together with a diploma in Food Preservation". The contention of the petitioner was that he holds an M.Sc degree in Horticulture and that the syllabus covers the area of Food Preservation. The Court dismissed the petition and observed:-
"2. Prescribing the qualifications for a post is the function of the appointing authority. Ordinarily, the Court cannot determine the issue of equivalence or stipulate that qualifications for the effective discharge of duties of a post can be equally met by another suitable qualification. The State which fills up a post is entitled to prescribe such qualifications as it considers necessary and proper for the proper discharge of the duties attached to the post. These are not matters on which judicial review can be exercised. The Court may interfere only in those cases where the qualifications prescribed are ultra vires a legislative enactment or where it is demonstrated that the prescribed qualifications are extraneous to the duties and functions attached to the post. Such is not the case here.
3. In these circumstances, it is not proper for the Court to accept the submission of the petitioner that the qualifications which he holds should be treated as equivalent to the qualifications as prescribed. Admittedly, the petitioner did not fulfill the prescribed qualifications. Hence, we see no reason to entertain the petition."
16. The case of Chief Manager Punjab National bank & Anr. Vs. Anit Kumar Das, 2021 SCC 80 = 2020 SCC Online 897 [03.11.2020] has been also referred by single bench of Allahabad High court in 8 of Smt. Kavita Sonkar Vs. State of U.P. ,Writ -A No. 959 of 2022 decided on 21.03.2022 and held in para 9 that :-
"The recruitment / Selection process should be made strictly in accordance with the term of the advertisement and the recruitment rules as has been held in the case of Yogesh Kumar and Others Vs. Government of NTC Delhi reported in (2003) 3 SCC 548."
17. In this case, the applicant gave the false information in the application form submitted online. He did not disclosed his marks Page No.12 obtained in secondary school examination. Applicant who gives any false information is not entitled for any sympathy.
18. Therefore, it appears that the applicant was not entitled to get any relaxation in the marks provided for Educational Qualification. He did not challenge the advertisement and himself appear in the examination; therefore he cannot challenge the same at a later stage. The department rightly denied him to appear in the Interview. Hence, the OA is dismissed.
(Dr. Sanjiv Kumar) (Justice B.K. Shrivastava)
Member (A) Member (J)
Sushil