Central Administrative Tribunal - Ernakulam
Devi Priya G B vs Kendriya Vidyalaya Sanghthan on 10 September, 2018
1 OA/180/323/15
Central Administrative Tribunal
Ernakulam Bench
OA No180/00323/2015
Monday, this the 10th day of September, 2018
CORAM
Hon'ble Mr.E.K.Bharat Bhushan, Administrative Member
Hon'ble Mr.Ashish Kalia,Judicial Member
Devi Priya G.B., aged 35 years
D/o Geetha Devi.S., Hari Priya
T.C.17/2433 Jagathy, Thycaud P.O.
Thiruvananthapuram-695 014. Applicant
[Advocate: Ms.I.Sheela Devi rep by Mr.Aditya Thejus Krishna]
versus
1. Commissioner
Kendriya Vidyalaya Sangathan (HQ)
18, Institutional Area
Shaheed Jeet Singh Marg
New Delhi-110 067.
2. Kendriya Vidyalaya Sangathan represented by
its Commissioner, Kendriya Vidyalaya Sangathan (HQ)
18, Institutional Area, Shaheed Jeet Singh Marg
New Delhi-110 067. Respondents
[Advocate: Mr.K.I.Mayankutty Mather rep by Mr.Vineth Komalachandran]
The OA having been finally heard on 4th September, 2018, this Tribunal
delivered the following order on 10th September, 2018:
ORDER
By E.K.Bharat Bhushan, Administrative Member This OA is filed by Ms.Devi Priya G.B., aggrieved by the action on the part of the respondents in rejecting her candidature for appointment as Primary Teacher under the respondent organization. She contends that the respondents had done so by incorporating additional qualifications, which were not part of the Recruitment Rules or the Notification, inviting applications for the post. The reliefs sought in the OA are as follows:
2 OA/180/323/15
(i) Declare that Annexure A5 notice prescribing qualifications which are not there either in the Recruitment Rules or in the Notification are highly arbitrary and not sustainable in the eye of law.
(ii) Declare that the applicant is eligible and qualified to be considered for the post of Primary Teacher in accordance with the Recruitment Rules and Notification.
(iii) Declare that non-awarding of any marks to the applicant in the interview is clearly arbitrary, wrong and illegal.
(iv) Direct the respondents to incorporate the marks granted by the interview Board for the post of Primary Teacher to the applicant in the select list and to incorporate her name in the ranked list in the appropriate position.
(v) Direct the respondents to appoint the applicant as a Primary Teacher in KVS if her name is included in the ranked list at a position within the number of vacancies.
2. The applicant had secured 80% marks for SSLC, 64% marks in Pre- Degree and 84% marks for B.Sc (Zoology). She took her M.Sc Degree in Biology with 79% marks and also obtained B.Ed Degree in Natural Science. She also qualified in State Eligibility Test (SET), 2006 and in the Central Teachers Eligibility Test in 2013 (CTET), having also 3 years of teaching experience to her credit. She had come by the notification at Annexure A1 calling for applications for recruitment to the post of Teaching and Miscellaneous Teaching Posts in Kendriya Vidyalaya Sangathan (KVS) for the years 2012-13 and 2013-
14. Among other posts, the KVS invited applications to fill up 998 unreserved vacancies of Primary Teachers also along with 1979 of total vacancies. The qualifications prescribed in Annexure A1 Notification under 'Post 51' were indicated as follows:
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 3 OA/180/323/15 Desirable: Knowledge of Computer applications.
3. The requirements of the posts were in line with entry 15 of the Recruitment Rules for the post of Primary Teachers specified in Schedule-I to Appointment, Promotion, Seniority etc., Rules, 1971 of KVS, a copy of the same being marked as Annexure A2. Annexure A2(a) is a copy of the relevant extract of Office Memorandum dated 13.7.2012 relating to Primary Teachers which, as per amended Recruitment Rules, is 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.
As can be seen, the qualifications specified as essential for the post of Primary Teacher are the same in the relevant Recruitment Rules as well as in the Notification inviting applications. The applicant was invited for a written test in which she participated on 16.12.2013. She came out successful and was further asked to attend an interview scheduled on 15.5.2014, a copy of the call letter being at Annexure A4. All of a sudden, on 29.4.2014, the respondents published a notice stating that the candidates, not in possession of B.El.Ed or Diploma in Elementary Education (2 years) and having professional qualification of B.Ed and passed CTET (Paper 1) are not eligible for the post of Primary Teacher. This notice was published on the respondents' website. A copy of the notice is at Annexure A5 and is extracted below:
4 OA/180/323/15 "Notice During the conduct of interview for the post of Primary Teachers, it has been observed that some of the candidates having professional qualification of B.Ed and having passed CTET (Paper-I) also applied for the post of Primary Teacher in Kendriya Vidyalaya Sangathan.
As per the PORTAL for filling the information for online submission of applications for the post of Primary teacher, the following professional qualification was mentioned in the DROP DOWN:
B.El.Ed/Diploma in Elementary Education.
It is observed that the candidates having professional qualification of B.Ed have submitted their online applications by giving wrong information in the column meant for professional qualification.
As such, the candidates not having the requisite professional qualification of B.El.Ed or Diploma in Elementary Education (02 years) and having professional qualification of B.Ed and passed CTET (Paper- I) are NOT ELIGIBLE for the post of Primary Teacher.
Accordingly, such candidates will not be allowed to appear in the interview".
4. It is maintained by the applicant in the OA that the stand of the respondents is clearly against what is mentioned in the Recruitment Rules. The applicant had applied for the post, her application was accepted, had participated in the written test and had come out successful. Thereupon, she had been invited for an interview when all of a sudden, the respondents chose it fit to amend the eligibility for the post.
5. The applicant calls to her assistance the judgments of the Apex Court in Asokkumar Sharma vs. Chander Shekhar & Anr (1997) 4 SCC 18, wherein it is stated:
"An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it."
Further the Hon'ble Supreme Court again in K.Manjusree vs. State of Andhra Pradesh (2008) 3 SCC 512 observed as follows:
5 OA/180/323/15 "The rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced."
Again, a Full Bench of the Apex Court in Tej Prakash Pathak vs. Rajasthan High Court (2013) 4 SCC 540 ruled that regulations for recruitment cannot be tinkered with once the process of selection is under way.
6. Applicant had challenged Annexure A5 Notice in W.P.(C) No.12310 of 2014 before the Hon'ble High Court. On the respondents assuring the Court that they shall permit the applicant to participate in the interview, the said Writ Petition had been disposed of; but when the final list was published, the applicant was informed that she was not eligible for the post for the reason that she did not posses the B.El.Ed qualification. This action of the respondents is arbitrary and illegal, contends the applicant. It is learnt that she was not awarded any marks for the interview thereby excluding her from the select list. This is violative of the undertaking given by the respondents, on which the Writ Petition had been closed, permitting her to participate in the interview. The very purpose of participating in the interview is defeated if she is not awarded any marks.
7. As one of the grounds, the applicant claims that B.El.Ed is an equivalent qualification for B.Ed and a candidate with B.Ed need not have B.El.Ed. Due to this reason, the old Recruitment Rules at Annexure A2 had been so crafted. It is claimed that no educational institutions in Kerala or indeed in South India is imparting a course in B.El.Ed. Specifying such a qualification is done in order to exclude a vast segment of aspiring candidates.
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8. The respondents have filed a reply statement wherein the contentions made by the applicant have been disputed. The thrust of the argument adopted by the respondent is that it was the guidelines framed by the NCET (National Council for Teacher Education) that required a modification in the qualifications. NCTE, being a statutory body, is mandated to take all steps necessary for better administration of the teacher education system throughout the country and for regulation and proper maintenance of norms and standards thereof. By Right of Children to Free and Compulsory Education Act, 2009, the Central Government had authorized NCTE as the Academic Authority to lay down the minimum qualifications for a person to be eligible for appointment as a Teacher. Accordingly, NCTE by Gazette Notification dated 23.8.2010 had laid down the qualifications for teachers teaching classes I to V and VI to VIII separately. Under the eligibility provisions for teachers for classes I to V, the following is indicated:
"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.
OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El.Ed.) Or Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Education (Special Education) AND
b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose".
Thus according to the Gazette Notification referred to, candidates not having the qualification of B.El.Ed or Diploma in Elementary Education are not entitled to be appointed as Primary Teachers with effect from the date of the 7 OA/180/323/15 Gazette Notification. The power to issue these Rules are enshrined under Article 309 of the Constitution of India and has been upheld in various orders of judicial bodies.
9. The respondents also dispute the contentions of the applicant that the norms had been amended abruptly. While admitting that Recruitment Rules and the Notification published did contain the set of qualifications as claimed by the applicant, the respondents elaborately explained that in the portal posted by the respondents, a "Clarification Menu" intended to guide the candidates making online submission of applications had been introduced and in the drop-down, the following had been indicated as essential qualifications:
Bachelor of Elementary Education (B.El.Ed.) or Diploma in Elementary Education.
Thus, according to the respondents, it would be incorrect to conclude that the applicant had no knowledge of the said change until she received the notice at Annexure A5.
10. Sri Aditya Thejus Krishna representing Ms. I. Sheela Devi, learned counsel for the applicant and Sri Vineeth Komalachandran representing Sri Mayankutty Mather, learned counsel for the respondents were heard and all pleadings were examined. The facts of the case are not in dispute. The applicant had applied against a public notice. The qualifications required for the post applied for, mentioned in the notice, are the same as contained in the relevant Recruitment Rules. The applicant who was successful in the screening took part in the written examination in which she came out successful. She was also issued a call letter to appear for interview. At this stage, matters took an abrupt turn with respondents issuing Annexure A5 bringing in an altogether new qualification. For their part, the respondents argue that such a revised 8 OA/180/323/15 qualification had been indicated under a relevant menu available to the applicant while submitting her application online. The Hon'ble High Court had positively responded to the plea of the applicant to permit her to appear for the interview. However, she was declared unqualified ostensibly for not possessing the qualification of BE.El.Ed or Diploma in Elementary Education, the revised eligibility criteria.
11. Learned counsel for the applicant points out that the NCTE Notification referred to as a reason for the revision is dated 23.8.2010, whereas the posts in question are for the years 2012-13 and 2013-14 with online registrations called for from 29.7.2013 onwards. If it had been the intention of the respondents to scrupulously follow the NCTE Guidelines, they could have made the revision in the eligibility norms well in time and sought recruitment as per the changed eligibility norms. It is interesting to note that from the next year onwards, this had been done. We feel that the applicant's case has considerable merit in this aspect. She had traversed part of the recruitment process and her fortunes have been severely impaired by the sudden change in the eligibility norms. As pointed out in the body of the OA itself, the two decisions of the Hon'ble Supreme Court clearly decry any act to change the rules of the game once the process has started.
12. The respondents on their part, during the final hearing, drew our attention to several judgments such as:
í) W.P.No.2852(W) of 2012 with CAN 8593 of 2012 All B.Ed. Degree Holders Welfare Association & Ors vs. The State of West Bengal & Ors.
(High Court of Calcutta)
ii) University Grants Commission and another vs.Neha Anil Bhode (Gadekar) 2013 KHC 4754 (Supreme Court) 9 OA/180/323/15
iii) Bhupendra Nath Hazarika and another vs. State of Assam and others; 2012 KHC 4697
iv) Dilip Kumar Ghosh and others vs. Chairman and Others 2005 KHC 1424 Latha Vs. State of Kerala 2003 KHC 160
v) State of U.P.& Anr. vs. Anand Kumar Yadav & Ors in Civil Appeal
13. However, it is seen that these orders affirm the rights and privileges of rule making bodies in order to prescribe qualifying criteria, a right which is not disputed in the OA. The only point for consideration here is the legality and the question of fair play involved in changing the eligibility norms in the midst of a recruitment process. The applicant is M.Sc with a B.Ed in Natural Science and was successful in the written test and was turned back at the interview. It is alleged that even when she was allowed to participate in the interview, she was denied any marks with intent to exclude her selection. This action mocks at the face of justice and fair play, according to her, a contention we conclusively agree with.
14. On a consideration of all factors before us, we come to the conclusion that the OA has merit on its side. We allow the OA and the reliefs as prayed for. Action pursuant to this order is to be taken within two months of receipt of a copy of the same. OA stands disposed of with no order as to costs.
(Ashish Kalia) (E.K.Bharat Bhushan)
Judicial Member Administrative Member
aa.
Annexures produced by the applicant:
Annexure A1: Copy of the advertisement No.7 published in the website of
KVS.
Annexure A2: Copy of the Recruitment Rules for the post of Primary
Teachers.
Annexure A2(a): A true relevant extract of the office memorandum relating to Primary Teachers.
10 OA/180/323/15 Annexure A3: Copy of the print out of the result notified by the KVS. Annexure A4: Copy of the call letter issued to the applicant by the respondent.
Annexure A5: Copy of the notice dated 29.4.2014 published in the website of the respondent.
Annexure A6: Copy of the 1st page and last page of the ranked list. Anneuxre A7: Copy of the final result of written test and interview for the post of Primary Teacher issued to another candidate with separate marks for interview and written test.
Annexure A8: Copy of the first page and last page of supplementary select list for the post of Primary Teacher in KVS.
Annexures produced by the respondents:
Annexure R2(a): Copy of the Gazette Notification dated 23.08.2010 issued by the National Council for Teachers Education (NCTE). Annexure R2(b): Copy of the notice issued by KVS Annexure R2(c): Copy of the letter No.F.49-2/2014/NCTE/N&S/National Council for Teacher Education (NCTE).
Annexure R2(d): Copy of the notification for Kerala Teachers Eligibility Test (K-TET).