Central Administrative Tribunal - Delhi
Liji V vs Kendriya Vidyalaya Sanghthan on 31 May, 2023
1
OA No. 1487/2023
MA No. 238/2020
MA No. 1784/2023
Item No. 08
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1487/2023
M.A. No. 238/2020
M.A. No. 1784/2023
Reserved on: 17.05.2023
Pronounced on: 31.05.2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
1. Liji V.
W/o Pradeep
R/o Vavukodekalam, Thattamangalam
Palakkad, Kerala-678102
2. Saritha P.M.
W/o Navaneetha Krishnan S
R/o Karikkalacolumbu, Vandithavalam
Palakkad, Kerala-678534 ... Applicants
(By ADVOCATE: Sh. Suvidutt M.S., Ms. Deepika Singh and
Ms. Somlajna Biswas)
Versus
1. Kendriya Vidyalaya Sangathan
Through Joint Commissioner
18, Institutional Area
Shaheed Jeet Singh Marg
New Delhi-110016
2. Union of India
Through the Secretary
Human Resource Development Ministry
Shastri Bhawan, New Delhi-110001
2
OA No. 1487/2023
MA No. 238/2020
MA No. 1784/2023
Item No. 08
3. Central Board of Secondary Education
Through its Controller of Examinations
Shiksha Kendra-2, Community Centre
Preet Vihar, Delhi-110092.
... Respondents
(By ADVOCATE: Sh. Gyanendra Singh)
ORDER
Mr. Ashish Kalia, Member (J):
The applicants have filed this OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following main reliefs:
"(a) Pass the direction, orders and instructions thereby directing the Respondents, their agents, servants and employees herein to re-consider the selection of the Applicant No. 1
herein and Applicant No. 2 herein as well for the post of Primary Teacher from the years 2012-13 and 2013-14 till the date of their retirement;
(b) Pass the direction, orders and instructions thereby directing the Respondents, their agents, servants and employees to provide the applicants with all service benefits, back pay and allow the instant Original Application in favor of the Applicants herein and against the Respondents herein with exemplary costs‟
(c) Pass any such other order(s)/relief as may be deemed appropriate, fit, just and proper according to facts and circumstances of the present case to meet the end of justice in the circumstances of the present case."
3OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08
2. The facts as stated in the OA are that pursuant to Advertisement issued by respondent No. 1 for recruitment of Teaching and Miscellaneous Teaching Posts for the years 2012- 13 and 2013-14, the applicants herein applied for the post of Primary Teacher. Admit cards were issued and written examination was conducted on 16.12.2013. Both the applicants appeared in the examination and were declared pass in the result announced on 04.03.2014. They were later issued Interview Call Letter and appeared for viva-voce on 20.05.2014.
3. On 01.09.2016, Rank List (Main List) for the post of Primary Teacher for the year 2012-13 and 2013-14 was published. Later, revised/amended Rank List of rejected candidates was published which included the names of the applicants stating that they have B.Ed degree to their credit and not a Diploma in Elementary Education as prescribed for the post of Primary Teacher and therefore, they are not entitled for being considered for appointment.
4OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08
4. The applicants submit that as per the Advertisement, the essential qualification for appointment to the post of Primary Teacher are as follows:
Essential:
(i) Senior Secondary School Certificate with 50% marks or intermediate with 50% marks or its equivalent;
(ii) Pass in the Central Teacher Eligibility Test (CTET) conducted by the CBSE in accordance with the Guidelines framed by the NCTE for the purpose.
(iii) Competence to teach through Hindi & English media.
Desirable: Knowledge of Computer Applications.
5. It is further submitted that both the applicants had passed Senior Secondary School Certificate Examination with 50% marks and also passed in Central Teacher Eligibility Test (CTET) conducted by the Central Board of Secondary Education (CBSE).
6. The applicants submit that the Advertisement did not include B.El.Ed (Bachelor of Elementary Education) or D.Ed (Diploma in Education) as an essential requirement for selection of the candidates. They have also drawn our attention to Notification of National Council for Teachers Education (NCTE) dated 23.08.2010 which provides that a person with 5 OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08 B.Ed qualification was also eligible for appointment, provided they underwent, after appointment, an NCTE recognized six month program in elementary Education.
7. Attention is also drawn to an amended notification dated 28.06.2018 wherein the following clause has been added:
"(a) who has acquired the qualification of Bachelor of Education from any NCTE recognized institution shall be considered for appointment as a teacher in classes I to V provided the person so appointed as a teacher shall mandatorily undergo a six month Bridge Course in Elementary Education recognized by the NCTE, within two years of such appointment as primary teacher."
8. Reference is made to judgments of the Hon‟ble Supreme Court in the case of Jyoti K.K. v. Kerala Public Service Commission, [(2010) 15 SCC 596], Chandrakala Trivedi vs. State of Rajasthan, [(2010) 3 SCC 129], Parvaiz Ahmad Parry v. State of Jammu & Kashmir [(2015) 17 SCC 709] and judgments of Hon‟ble High Courts in Govt. (NCT of Delhi) vs. Monika Sharma [2015 SCC Online CAT 5066] and Manjit Singh v. State of Punjab [2009 SCC Online P&H 2878].
9. Aggrieved by their non-selection, the applicants made representation dated 17.07.2019 before respondent No. 1 which has not been responded to as yet. Hence, the OA. 6 OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08
10. Notices were issued to the respondents who put appearance through Sh. Gyanendra Singh, learned counsel who has filed reply.
11. The respondents have opposed the MA seeking condonation of delay of 1242 days arguing that the applicants have failed to disclose any reason for condoning the delay, which is almost 07 years. They have placed reliance upon the judgment of Hon‟ble Supreme Court in SLP(C) No. 7956/2011, D.C.S. Negi vs. Union of India & ors.
12. In their reply to the OA, the respondents have averred that in the clarification menu of the portal hoisted in the KVS website for filling up online application for the post of Primary Teacher, it was also mentioned that "4 years Bachelor of Elementary Education (B.El.Ed) or 2 years Diploma in Elementary Education" is essential for the post of PRT. The Kendriya Vidyalaya Sangathan in the advertisement at point no. 4 under „general conditions‟ has clearly mentioned that the verification of the certificates shall be taken at the time of interview and the candidates applying for the examination must ensure that they fulfill the eligibility conditions for admission to 7 OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08 examination and that their admission at all stages of the examination will be purely provisional subject to satisfying the prescribed eligibility conditions.
13. They have further averred that the certificates of the applicants were verified at the time of interview and on verification, it was found that they did not fulfill the eligibility criteria for the post of Primary Teacher as per Advertisement and Recruitment Rules in force at that time as they did not possess the qualification of B.El.Ed or D.Ed. It was also found that the applicants had filled wrong information regarding their professional qualification of B.Ed against the column meant for filing in the professional qualification of B.El.Ed or D.Ed.
14. The respondents submit that as per NCTE notification dated 23.08.2010, a person with BA/B.Sc. with at least 50% marks and B.Ed. qualification was also eligible for appointment for class I to V upto 1st January, 2012, provided he/she undergoes, after appointment, an NCTE recognized six months special programme in Elementary Education. Accordingly, KVS referred the matter to National Council of Teacher Education(NCTE) for clarification and vide its letter dated 8 OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08 02.06.2014, the NCTE clarified that the candidates having professional qualification of B.Ed cannot be considered eligible for appointment as teachers for classes I to V beyond 01.01.2012.
15. The applicants were not eligible for the post of PRT as they did not possess the qualification of D.Ed./B.El.Ed. and as regard to the NCTE notification dated 28.06.2018 which says that one who has acquired the qualification of Bachelor of Education (B.Ed) from any NCTE recognized institute shall be considered for appointment as a teacher in Classes I to V provided the person so appointed as a teacher shall mandatorily undergo a six month Bridge Course in Elementary Education recognized by the NCTE, within two years of such appointment as primary teacher, the said notification is effective from the date it is issued and not from the back date.
16. Heard the learned counsel for the parties, perused the records and appreciated the legal position.
17. Short questions raised before us are whether (i) the Original Application is time barred or not? and (ii) whether the 9 OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08 applicants are having requisite qualification for appointment to the post in question?
18. As regards the point of limitation, no doubt, the applicants are claiming reconsideration of their appointment to the post of Primary Teacher for the years 2012-13 and 2013-14. They have approached this Tribunal in the year 2019. Certainly, it is more than three years. This Tribunal, under Section 21 of the Administrative Tribunals Act, 1985, has powers only to condone the delay of maximum three years. As has been held by the Hon‟ble Supreme Court in numerous cases including in the case of D.C.S. Negi vs. Union of India & Ors. where it has been observed as under:
"13. A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21 (2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21(3).10 OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08
19. As regards the second question regarding the possession of requisite qualification, the requirement includes 4 years Bachelor of Elementary Education (B.El.Ed) or 2 years Diploma in Elementary Education. Meaning thereby, Bachelor of Education in Elementary level is required whereby they have to impart education to children aged between 4 - 10 years. The Degree of B.Ed, which the applicants possess, will not hold good because in elementary education, for small kids, whose problems are different than middle class and secondary class students, there are certain subjects which only deal with the children aged between the age group of 4-10 years and, thus, B.El.Ed is essential for the post of Primary Teacher.
20. The applicants cannot claim the post of Primary Teacher on this pretext that they are having higher qualification. However, they may have been eligible for the higher post, but that does not give them a license to get a specific post where preschoolers also have to be taught by them. Requirements are different for teaching preschoolers and adolescent children. 11 OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08
21. In the matter of Mallikarjuna Rao & Ors. vs State of Andhra Pradesh & Ors., (1991) 2 SCC 707, the Hon‟ble Apex Court has observed as under:
"11. The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature. The High Court was aware of its limitations under Article 226 of the Constitution of India and as such the learned Judge deliberately used the word „advisable‟ while making the observations. It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. Imaging the executive advising the judiciary in respect of its power of judicial review under the Constitution. We are bound to react scwolingly to any such advice."
XXX XXX XXX
13. The Special Rules have been framed under Article 309 of the Constitution of India. The power under Article 309 of the Constitution of India to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State government to legislate under Article 309 of the Constitution of India. The courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner. The courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India."12 OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08
22. In another judgment in Indian Airlines Corporation vs. Capt. K.C. Shukla & Ors., (1993) 1 SCC 17, on similar lines, the Apex Court has held that it is not for the courts to consider relevance of qualifications prescribed for the post. The relevant paras read as under:
"2. Whether the decision of the High Court is well founded on various aspects shall be examined presently but the alternative relief granted by the High Court probably in an anxiety to be fair and just to those others who had been selected by reducing the interview percentage to 12.5% then working out proportionally the marks obtained by respondent on ACR evaluation and interview and directing to promote him as by this method he would secure the minimum required cannot be accepted as proper exercise of jurisdiction under Article 226. Adjusting equities in exercise of extraordinary jurisdiction is one thing but assuming the role of selection committee is another. The Court cannot substitute its opinion and devise its own method of evaluating fitness of a candidate for a particular post. Not that it is powerless to do so and in a case where after removing the illegal part it is found that the officer was not; promoted or selected contrary to law it can issue necessary direction. For instance a candidate denied selection because of certain entries in his character roll which either could not be taken into account or had been illegally considered because they had been expunged the Court would be within jurisdiction to issue necessary direction. But it would be going too far if the Court itself evaluates fitness or otherwise of a candidate, as in this case.
23. The case in J. Rangaswamy vs. the State of Andhra Pradesh & Ors., (1990) 1 SCC 288, rules out the possibility of 13 OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08 constitution of statutory rules in realm of judicial scrutiny. The relevant para is extracted as under:
"........6. So far as the second plea is concerned, admittedly, the petitioner does not have, while the respondent has, a doctorate in nuclear physics. The plea of the petitioner is that, for efficient discharge of the duties of the post in question, the diploma in radiological physics (as applied in Medicine) from the Bhabha Atomic Research center (BARC) held by him is more relevant than a doctorate in nuclear physics. It is submitted that in all corresponding posts elsewhere, a diploma in radiological physics is insisted upon and that, even in the State of Andhra Pradesh, all other physicists working in the line, except the respondent, have the diploma of the BARC. It is not for the Court to consider the relevance of qualifications prescribed for various posts. The post in question is that of a Professor and the prescription of a doctorate as a necessary qualification therefor is nothing unusual. Petitioner also stated before us that, to the best of his knowledge, there is no doctorate course anywhere in India in radiological physics. That is perhaps why a doctorate in nuclear physics has been prescribed. There is nothing prima facie preposterous about this requirement. It is not for us to assess the comparative merits of such a doctorate and the BARC diploma held by the petitioner and decide or direct what should be the qualifications to be prescribed for the post in question. It will be open to the petitioner, if so advised, to move the college, university, Government, Indian Medical Council or other appropriate authorities for a review of the prescribed qualifications and we hope that, if a doctorate in nuclear physics is so absolutely irrelevant for the post in question as is sought to be made out by the petitioner, the authorities concerned will take expeditious steps to revise the necessary qualifications needed for the post appropriately. But, on the qualifications as they stand today, the petitioner is not eligible to the post and cannot legitimately complain against his non-selection."14 OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08
24. Further, it has been held in Dr. (Major) Meeta Sahai vs State of Bihar & ors., (2019) 20 SCC 17 that :
"Courts must interpret text of provision and construct it literally-provisions in statute must be read in their original grammatical meaning to give its words common textual meaning-However, this tool of interpretation can only be applied in cases where text of enactment in susceptible of only one meaning-Nevertheless, where there is ambiguity in meaning of text, court must also give due regard to consequences of interpretation taken-Further held, responsibility of courts to interpret text in manner which eliminates any element of hardship, inconvenience, injustice, absurdity or anomaly-If ordinary meaning of text of law is non-conducive to object sought to be achieved it must be interpreted to remedy such deficiency-Furthermore, executive actions like advertisements can neither expand nor restrict scope or object of law..."
25. After careful examination of the facts of the case and considering the judgments cited above, the interference of this Tribunal in the present case is not within the realm of judicial scrutiny. The Courts/ Tribunals cannot alter the qualifications and cannot interfere in the Recruitment Rules and matters of appointment. The Recruitment Rules should be read as it is and nothing contrary to it is tenable.
26. Undisputedly, the applicants are having the qualification of B.Ed but not B.El.Ed which is essential requirement. Thus, 15 OA No. 1487/2023 MA No. 238/2020 MA No. 1784/2023 Item No. 08 the present case is devoid of merit and the same is liable to be dismissed.
27. Hence, the M.A. seeking condonation of delay and the OA, both stand dismissed. Pending MA, if any, shall also stand disposed of.
There shall be no order as to costs.
(Dr. Anand S. Khati) (Ashish Kalia)
Member (A) Member (J)
/NS/