Central Administrative Tribunal - Hyderabad
Barnana Jhansi vs South Central Railway on 1 October, 2021
OA No.474/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH : AT HYDERABAD
OA/021/00474/2021 & MA 546/2021
Date of CAV : 23.09.2021
Date of Pronouncement : 01.10.2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr. B.V. Sudhakar, Admn. Member
Ms.Barnana Jhansi W/o Padala Jeeva Ratnam, age 30 years,
OBC Hindu, Occ : Unemployed, R/o H.No.16-2-740/22, Kalyan
Nagar, Gaddiannaram, Dilsukhnagar, Hyderabad-500060,
Telangana State. ...Applicant
(By Advocate : Mr.P.Ramchander Rao)
Vs.
1.Union of India, Ministry of Railways, Rep. by its
Chief Executive Officer, Railway Board, Room No.256-A,
Rail Bhavan, Raisina Road, New Delhi, Delhi 110001, India.
2.The Chairman, Railway Recruitment Board, South
Lallaguda, Back Gate, Beside IRISET, Mettuguda,
Secunderabad, Telangana 500017.
3.The Secretary, Railway Recruitment Board, South
Lallaguda, Back Gate, Beside IRISET, Mettuguda,
Secunderabad, Telangana 500017. ....Respondents
(By Advocate : Mr.M.Venkateswarlu, SC for Railways)
---
Page 1 of 12
OA No.474/2021
ORDER
(As per Hon'ble Mr.B.V.Sudhakar, Administrative Member) Through Video Conferencing:
2. The OA is filed in regard to the selection of the applicant to the post of Assistant Loco Pilot against Centralized Employment Notice (CEN) No. 01/2018, dated 3.2.2018.
3. Brief facts of the case are that the applicant belonging to OBC Community - Non-creamy Layer, having done B.Tech. in Aeronautical Engineering applied for the post of Asst. Loco Pilot ( for short ALP) against notification issued by the respondents on 3.2.2018. She came out successful in the 3 phases of the examination and was awaiting appointment orders. However, applicant was not issued any offer letter on the ground that she has shown her educational qualification as other streams of Mechanical Engineering in the online application whereas in the document submitted it is Aeronautical Engineering, the latter being a separate branch.
Hence her name was kept in the standby list. Aggrieved the OA is filed.
4. The Institute of Aeronautical Engineering, an autonomous body, has clarified on 31.12.2020 that Aeronautical Engineering may be treated as a super specialty of Mechanical Engineering. Further, AICTE on 10.11.2020 has stated that the equivalency of degrees has to be verified with the concerned department/University and a decision has to be taken. Respondents have not clarified as to what are the other streams of Page 2 of 12 OA No.474/2021 Mechanical Engineering. The training for the ALP will commence from 12.7.21/16.8.21 ignoring the applicant's candidature, though she is fully eligible for the post with a merit rank of 1553. The Railway Board instructions contained in letter dated 30.9.2015 have not been followed. The applicant was medically qualified for A-1 category. Articles 14 & 21 of the Constitution have been violated.
5. Respondents state that the letter of the Institute of Aeronautical Engineering does not state Aeronautical Engineering as "Other streams of Mechanical". As per Railway Board circular dated 28.8.2014 issues in question have to be got clarified from the concerned Council / University. Therefore, All India Council for Technical Education (for short AICTE) was approached, which has advised vide letter dated 23.1.2020 to refer AICTE- Approval Process Handbook (for short APH) for 2019-2020 for taking a decision in the matter. Accordingly, it was verified and found that Aeronautical Engineering is a separate Branch and it does not come under Mechanical Branch (Annexure A-X). The annexure -7 submitted by that applicant listing the courses covered under each stream of engineering by AICTE is denied since it has not been authenticated. The clauses of the notification namely clauses Sl. No.1, 2, 6 & 14 were strictly followed in processing the candidature of the applicant.
Applicant filed a rejoinder comparing her case with that of Sri P.V. Krishna whose case was considered under other streams of Electronics though he did Avionics. Applicant cited the judgment of Hon'ble Ernakulam Bench of this Tribunal in OA 846/2011 dated 23.2.2012 in Page 3 of 12 OA No.474/2021 regard to equivalence of educational qualifications and claims that she should be granted the relief sought as she is similarly situated. The details furnished in annexure 7 along with OA have been down loaded from the Govt. Web site and hence are valid. Applicant has referred to the letter written by Member Secretary of AICTE (A-3) claiming that he has confirmed that Aeronautical Engineering is an allied course of Mechanical Engineering. Further, the RTI reply of AICTE (A-2) has surprisingly affirmed that Electronics and Avionics is a relevant course of the major discipline of Electronics and Communication Engineering. Respondents have followed the instruction of the Railway Board dated 28.4.2014 and not the subsequent Railway Board memo dated 30.9.2015 advising to seek clarification in regard to any course from Board/ University/ Institution/ Council.
Respondents filed an additional reply clarifying that the case of P.V. Krishna was considered based on the RTI reply dated 2.3.2020 by Member Secretary informing that Electronics and Avionics is the relevant course of the Major discipline of Electronics and Communication Engineering. The Member Secretary, AICTE when asked to clarify about the letter sent to counsel for the applicant on 13.8.2021 informing that Aeronautical Engineering is an allied Course of Mechanical Engineering, has replied on 2.9.2021 that Aeronautical Engineering is a separate basket.
6. Heard both the counsel and perused the pleadings on record. Page 4 of 12 OA No.474/2021
7. I. The dispute is about the selection of the applicant as ALP based on the qualification of B.Tech in Aeronautical Engineering. Against the notification dated 3.2.2018 of the respondents, applicant has applied by indicating her Educational qualification under other streams of Mechanical Engineering. Applicant has successfully cleared the 3 phases of the selection process and the hitch arose at the time of documentation process. Respondents when they approached AICTE, the final authority on technical education, it was clarified vide letter dated 23.1.2020 that the respondents can refer to the APH for resolving the issue. Accordingly, respondents referred to the relevant APH of 2017-18, 2018-19 & 2019-2020 and found that Aeronautical Engineering was a separate branch. In the meanwhile, some confusion arose when the ld. counsel for the applicant was informed by the Member Secretary of AICTE on 13.8.2021 that Aeronautical Engineering is an allied branch of Mechanical Engineering. The respondents on taking up with the Member Secretary, AICTE to authenticate the reply sent to the applicant counsel and clarify on the raging controversy, it was finally intimated to the applicant on 20.9.2021 (Annexure R-10 to Addl. Reply) by the respondents that Aeronautical Engineering is in a separate Basket as under:
"With reference to the letters cited above reference (i) and (ii), it is to inform you that clarification has been received from Member Secretary, AICTE and it has been clarified that "On examining the Gazette Notification, it was found that Aeronautical Engineering is a separate basket."
In view of the above, your request to issue offer letter for the post of Assistant Loco Pilot is not possible."
Page 5 of 12 OA No.474/2021 II. Therefore, once the final authority on the subject ie AICTE has clarified that the Aeronautical Engineering does not come under Other Streams of Mechanical Engineering, it would mean that the applicant does not have the requisite qualifications as specified in the notification dated 3.2.2018. The clarification given by the Institute of Engineering on 31.12.2020, which indeed was not very clear, pales into significance when the supreme authority on the subject ie AICTE has clarified that Aeronautical Engineering is in a separate basket.
III. Besides, the Hon'ble Supreme Court has made it clear that the mandatory instructions contained in a notification have to be followed in State of Tamil Nadu & Ors v G. Hemalathaa & Anr in Civil Appeal No. 6669 of 2019 decided on 28.8.2019, as under:
10. In her persuasive appeal, Ms. Mohana sought to persuade us to dismiss the appeal which would enable the Respondent to compete in the selection to the post of Civil Judge. It is a well-known adage that, hard cases make bad law. In Umesh Chandra Shukla v. Union of India4, Venkataramiah, J., held that:
"13.... exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. It may also result in the violation of the principle of equality and may lead to arbitrariness. The cases pointed out by the High Court are no doubt hard cases, but hard cases cannot be allowed to make bad law. In the circumstances, we lean in favour of a strict construction of the Rules and hold that the High Court had no such power under the Rules.
11. Roberts, CJ. in Caperton v. A.T. Massey5 held that: (1985) 3 SCC 721 556 U.S. 868 (2009) "Extreme cases often test the bounds of established legal principles. There is a cost to yielding to the desire to correct the extreme case, rather than adhering to the legal principle. That cost has been demonstrated so often that it is captured in a legal aphorism: "Hard cases make bad law."
12. After giving a thoughtful consideration, we are afraid that we cannot approve the judgment of the High Court as any order in favour of the candidate who has violated the mandatory Instructions would be laying down bad law. The other submission made by Ms. Mohana that an order can be passed by us under Article 142 of the Constitution which shall not be treated as a precedent also does not appeal to us.
Page 6 of 12 OA No.474/2021 The Mandatory Instructions/ Important Instructions contained in the Centralized Employment Notice (CEN) No. 01/2018, which are relevant to the case are extracted hereunder:
Sl. No. 2 - Eligibility of the candidates will be considered only on the strength of the information furnished in the ONLINE application. If at any stage of recruitment or thereafter, it is found that any information furnished by the candidate in his/ her application is false/ incorrect or the candidate has suppressed any relevant information or the candidate does not satisfy the eligibility criteria for the post (s), his/ her candidature will be rejected forthwith.
Sl. No. 14.0 HOW TO APPLY:
(c) - The onus is on the candidates to prove with valid documents that all the information submitted by them in the ONLINE application is true.
Sl. No.1.0 GENERAL INSTRUCTIONS:
1.1. Admission to all stages of recruitment process shall be purely provisional, subject to the candidates satisfying the prescribed eligibility conditions.
1.2 Mere issue of e-call letter to the candidates will NOT imply that their candidature has been finally accepted by the RRBs.
1.3 RRBs conduct verification of eligibility conditions with reference to original documents only after the candidates have qualified in all the stages of examinations and are shortlisted for Document Verification. RRBs may reject the candidature of any applicant at any stage of recruitment process in case the candidate is found to be no fulfilling the requisite criteria and if appointed, such a candidate shall be removed from service summarily.
1.4 Before applying for the post(s), against this notification, candidates should satisfy themselves that they fulfill all the eligibility norms including age, educational qualification (s) and medical standard(s).
Candidates should ensure that they have requisite Technical qualifications from recognized Board/ University/Institute as on the date of closure for submission of the application for this CEN. Those awaiting results of the final examination for the prescribed qualification are not eligible and hence should not apply.
Sl. No. 6. Educational Qualifications:
Candidates should have the Educational/ Technical qualifications indicated for notified posts in the CEN from recognized Institute/ University as on the closing date for submission of the ONLINE application. Annexure-A may be referred for the prescribed qualification against each of the posts."Page 7 of 12 OA No.474/2021
IV. The respondents have just followed the instructions and one cannot find fault with their decision. In terms of the clauses of the notification it is difficult to consider the relief sought. If any relaxation is granted to the applicant then it would mean doing injustice to those candidates who had a similar issue but did not apply in view of the instructions contained in the notification.
V. The other contention of the applicant is the comparison she has made with another candidate Sri P.V. Krishna whose educational qualification was Avionics and applied under 'other streams of Electronics'. In his case it was again clarified by AICTE vide letter dated 2.3.2020 that Avionics comes under major discipline of Electronics and Communications Engineering. Therefore based on the clarification of AICTE the candidature of Sri P.V. Krishna was considered.
VI. The applicant took support of the decision of the Hon'ble Ernakulam bench of this Tribunal in OA 846/2011 dated 23.2.2012 in support of her contention. The equivalence of degrees is an aspect well left to the authorities who are competent to decide the matter and the courts should refrain from entering into such a domain, as observed by the Hon'ble High Court of Allahabad in Asheesh Kumar And Others vs State Of U.P. And Others on 11 November, 2020 in WRIT-A No. 6083 of 2020, by relying on the judgments of the Hon'ble Apex Court as under:
"15. That leaves the Court to consider the submission of it embarking upon an exercise to declare a degree in General English to be equivalent to the essential qualifications enumerated in the advertisement. The submission which is commended for acceptance would clearly amount to undertaking an exercise which would be legally impermissible and transgress the inherent Page 8 of 12 OA No.474/2021 limitations recognized by Courts while exercising their powers of judicial review as explained hereinafter.
16. The correctness of the submission advanced would essentially have to be tested bearing in mind the following cardinal principles. The prescription of a qualification is essentially and primarily a role reserved for the employer. It is not for this Court while exercising its jurisdiction under Article 226 of the Constitution to arrogate to itself that function. Similarly, it is neither the function nor the role of the Court to adjudge or assess the suitability or desirability of a particular qualification that may be stipulated. Lastly, it is not for Courts to assume upon themselves the authority to delve into questions of equivalence of degrees and educational qualifications. That function must necessarily stand reserved for the experts in the field namely the academicians.
17. The Supreme Court in Zahoor Ahmad Rather Vs. Imtiyaz Ahmad2 reiterated these settled principles holding: -
"26. ...... The prescription of qualifications for a post is a matter of recruitment policy. The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on a specific statutory rule under which the holding of a higher qualification could presuppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the High Court was justified in reversing the judgment [Zahoor Ahmad Rather v. State of J&K, 2017 SCC OnLine J&K 936] of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the Division Bench."
18. A similar note of restraint was entered in Maharashtra Public Service Commission Vs. Sandeep Shriram Warade ( 2019) 6 SCC 362:
9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being on a par with the essential eligibility by an interpretive re-Page 9 of 12 OA No.474/2021
writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same."
19. More recently three learned Judges of the Supreme Court in Punjab National Bank Vs. Anit Kumar Das4 observed:-
"21. 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......"
20. The principles enunciated in Zahoor Ahmad and Maharashtra Public Service Commission were reiterated by a Full Bench of the Court in Deepak Singh Vs. State of U.P.5 where it observed:-
"52. Now we proceed to deal with the reference in the case of Himani Singh v. State of U.P., the advertisement in question prescribed the qualification of Graduate in Commerce ''O' level Diploma issued by any Government Recognized Institution. The petitioners were non- suited as they hold a Post-Graduate Diploma in Computer Application. Thus, the claim of the petitioners, before the learned Single Judge, was that their qualifications are superior to the prescribed qualification i.e. ''O' level Diploma in Computer Application. In the said case, the Uttar Pradesh Subordinate Services Selection Commission, Lucknow had issued a Notification on 27.8.2018 notifying that the ''O' level Diploma in Computer Application had been specified as essential eligibility qualification and it further provided that there does not exist any Government Order specifying the equivalent of qualification with ''O' level Diploma in Computer Operation and that National Institute of Electronics and Information Technology (hereinafter referred to ''NIELIT'), earlier DOEAC Society had informed that apart from NIELIT no other institution was authorized to grant ''O' level Certificate in Computer Operation. The learned Single Judge, in his judgement dated 04.12.2018, rejected the contention of the petitioners therein relying upon the earlier decision of the learned Single Judge in Civil Misc. Writ Petition No. 19687 of 2018 (Yogendra Singh Rana v. State of U.P.). While dismissing the said writ petition, learned Single Judge held that the assessment with regard to the suitability of the higher qualification with a higher proficiency in the field of Page 10 of 12 OA No.474/2021 Computer Operation is in the field of policy and would not justify interference by the Writ Court. Before the Special Appeal Court, the petitioners had argued that the judgement of the Yogendra Rana (supra) is subject matter of pending appeal in which interim order has also been passed. It was thus argued before the Special Appeal Court that in view of decision in the case of Jyoti K.K. (supra) and Parvez Ahmad Parry (supra), the matter requires to be considered by the larger Bench that is how the matter was referred vide order dated 15.2.2019.
53. In view of the facts in the case, it is clear that there was no clarification/notification by the State Government providing for equivalence of any other qualification as equal to ''O' level Diploma in Computer Application. There being no material on record either before the learned Single Judge or before us to show that qualification possessed by the petitioners was in the same line of progression and also there being no material on record to show that the entire syllabus as is prescribed for grant of ''O' level Diploma in Computer Application was also the syllabus studied by the students for grant of Post Graduate Diploma in Computer Application (hereinafter referred to ''PGDCA'). In view of the said facts, we record that the degree PGDCA does not pre-suppose the qualification of ''O' level Computer Operation as is awarded by NIELIT."
21. As a result of the aforesaid discussion, the Court is of the considered view that the petitioners holding a degree in General English were clearly not qualified to participate in the recruitment process. The mere fact that on earlier occasions holders of such a degree were possibly permitted to participate in selection or came to be appointed as TGT teachers can neither erase the evident ineligibility of the petitioners here in light of the plain language employed in the advertisement nor can that mistake or error on the part of the respondents confer on them a positive right to move further in the selection process. The plea of discrimination advanced in that respect as noted above is clearly misconceived. A mistake or illegality committed in the past cannot constitute a ground for extending benefit or relief to the petitioners who are otherwise ineligible. Selection in respect of public employment must be tested strictly in accordance with the command of Articles 14 and 16 of the Constitution. The Court has no hesitation in holding that the acceptance of such a plea would be wholly contrary to the letter and spirit of those constitutional provisions.
22. For all the aforesaid reasons, the Court finds the petitioners disentitled to any relief. The writ petition stands dismissed." In view of the legal principle laid by the Hon'ble Apex Court as referred to in the cited judgment, the decision of the Hon'ble Ernakulam Bench of this Tribunal would not come to the rescue of the applicant. Other Page 11 of 12 OA No.474/2021 contentions raised by both the parties were gone into and finding them to be irrelevant no observations have been made.
VII. We empathize with the applicant, who has come from a poor background and made all out efforts to clear the 3 phases, but she did not possess the requisite qualification to be considered. We wish her better luck in her future endeavors. People became great when they realized that 'Failure is the stepping stone for success'.
VIII. In view of the aforesaid circumstances, finding no merit in the OA we dismiss it, with no order as to costs. MA stands disposed accordingly.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
'evr'
Page 12 of 12