Central Administrative Tribunal - Ernakulam
Raheemabi P vs The Administrator on 17 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 801 of 2009
Thursday, this the 17th day of February, 2011.
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
Raheemabi P,
D/o. A.B. Syed Muhammed Koya,
Puthalam (House), Andrott Island,
Lakshadweep. ..... Applicant.
(By Advocate Mr. Muhammed Shafi M)
v e r s u s
1. The Administrator,
U.T. of Lakshadweep,
Kavarathi, U.T. Of Lakshadweep,
2. The Director of Education,
(District Institute of Education & Training),
Directorate of Education,
U.T. Of Lakshadweep, Kavarathi : 682 555
3. Ansarali K.C.,
Kuttiashada House,
Kalpeni Island, U.T. Of Lakshadweep. ...... Respondents.
(By Advocate Mr. S. Radhakrishnan for R1-2 and
Mr. P.V. Mohanan, for R-3)
The Original Application having been heard on 10.02.2011, the
Tribunal on 17.02.2011 delivered the following:
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicant has filed this O.A challenging the selection of the 3rd respondent to the post of Lecturer in Botany and for a direction to the respondents to appoint her as Lecturer in Botany in the District Institute Education and Training (DIET), Kavaratti.
2. The 2nd respondent, the Director Education, Union Territory of Lakshadweep, had issued Employment Notice bearing F.No.2/7/2007-DIET (2) dated 23.09.2009 inviting applications from qualified local candidates for appointment to the post of Lecturers in various subjects including Botany in the DIET. The applicant had applied for the post of Lecturer (Botany). She claims that she is better qualified and is having more teaching experience than the 3rd respondent. The 3rd respondent who has been selected does not have the prescribed qualification of 3 years teaching experience as stipulated in the notification. Therefore, his selection is arbitrary and illegal. The applicant was placed higher in rank than the 3rd respondent in the select list of Post Graduate Teacher published by the 2nd respondent in the year 2009, for which also the qualifications prescribed were almost similar to that of the present post.
3. The respondents opposed the O.A. In their reply statement, they submitted that the averment that the applicant has got teaching experience of more than 5 academic years, is not fully correct. She had not produced the Annexure A-6 certificate for the period from 04.06.2008 to 26.08.2008 and from 13.10.2008 to 16.02.2009 neither alongwith her original application nor at the time of registration and interview. As such, the experience certificates based on the four certificates already produced by the applicant alongwith her application only were taken into account in counting applicant's teaching experience of 29 months. If the Annexure A-6 certificate was produced alongwith her application or atleast at the time of registration , then she would have been eligible for total experience of 36 months only. The omission of Annexure A-6 certificate is directly attributable to the applicant alone. Further, it was submitted that the experience prescribed in the schedule annexed to A-7 notice is not an essential qualification and the same was not actually meant for direct recruits. Out of 4 candidates who applied for the post of Lecturer (Botany), only 3 candidates including the applicant were qualified as per requirements of the relevant Recruitment Rules. Mere securing a little higher mark or rank in academic qualifications alone cannot be fixed as a criterion for selection of a candidate to a post especially to become DIET Faculty as averred by the applicant. The selection of the 3rd respondent was based on his overall merit and not based on any other consideration. The respondents relied on the following decision to butress their contention that the academic bodies should not ordinarily be interfered with by Courts.
(i) Secretary, Department of Health and Family Welfare vs. Dr. Anita Puri , (1996) 6 SCC 282.
(ii) R.K. Jain vs. Union of India, AIR 1993 SC 1769
(iii) Union of India vs. S. Vinod Kumar, (2007) 8 SCC 100
(iv) Chandra Prakash Tiwari vs. Shakundala, (2002) 6 SCC127
(v) The Chancellor vs. Dr. Bijayandra Kar, AIR 1994 SC 579
(vi) Dananjay Malik vs. State of Uttaranchal, 2008 (2) KLT 969
(vii) Madanlal State of J&K, (1995) 3 SCC 486
(viii) M. Nagararaja vs. Govt. of AP, (2007) 11 SCR 506 In Dananjay Malik's case (supra), the Apex Court held that if a candidate takes a calculated chance and appears at the interview, then, only because the result of interview is not palatable to him, he cannot turn around and subsequently contend that the process of interview was unfair or the selection committee was not properly constituted.
4. The 3rd respondent in his reply statement submitted that the selection committee found him eligible, demonstrably superior to the applicant and he was, therefore, selected as Lecturer in Botany. After having participated in the selection process, the applicant cannot later challenge the selection process.
5. In the rejoinder, the applicant denied the averment of the respondents that he had not produced the Annexure A-6 certificate at the time of registration or interview. If there was no qualified candidate to a post, the authority ought to have cancelled the notification and issued a new one considering the importance of the post of a Trainer's Trainer. If the experience was not an essential qualification for the post in question, the respondents ought to have very well mentioned the same in the notification. The respondents have wilfully denied the .9 marks to the applicant for her admitted experience itself. The cases cited by the respondents are not at all relevant to the present case..
6. We have heard Mr. Muhammed Sajfi M, counsel for the applicant, Mr. S. Radhakrishnan, counsel for respondents No. 1 and 2 and Mr. P.V. Mohanan, counsel for respondent No. 3 and perused the records.
7. The short question to be decided in this O.A is whether 3 years experience is essential criterion for selection to the post of Lecturer in Botany in the DIET. This point was considered in O.A. No. 389/10 by this Tribunal. In the order in the aforesaid O.A, the Tribunal held as under :
"6. The issue to be decided in this O.A. is whether teaching experience of 3 years is essential for the selection to the post of Lecturer (Hindi) as per notification dated 23.09.2009 (Annexure A-
1) and the recruitment rules dated 12.01.2008 (Annexure A-2).
Annexure A/1 notice states that the educational qualification, experience etc. required for the posts are as per the relevant recruitment rules prescribed vide notification F.No.2/7/2007-DIET dated 12.01.2008 published vide Extra Ordinary Gazette Vol.XLIII dated 15th January, 2008 as amended vide notification F.No.2/7/2007-DIET dated 10.09.2009. The aforesaid A/1 notice is reproduced as under :
"F.No.2/7/2007-DIET(2) ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP DISTRICT INSTITUTE OF EDUCATION AND TRAINING (DEPARTMENT OF EDUCATION) KAVARATTI ISLAND Dated 23rd September, 2009 NOTICE Sub: Department of Education - District Institute of Education & Training - Filling up the post of Lecturers - regarding.
Ten (10) posts of Lecturers, Group-B Non Gazetted in PB-2 Rs. 9300-34800 + GP Rs. 4800 (Rs. 6500-200-10500 PR) under the District Institute of Education and Training, Lakshadweep, are proposed to be filled up either on deputation among the teachers working under Lakshadweep Administration or by direct recruitment limited to Islanders. The educational qualification, experience etc. required for the posts as per the relevant recruitment rules prescribed vide notification F.No.2/7/2007-
DIET dated 12.01.2008 published vide Extra Ordinary Gazette Vol.XLIII dated 15th January, 2008 as amended vide notification F.No.2/7/2007-DIET dated 10.09.2009 published vide Extra Ordinary Gazette Vol.XLV.No.38 dated 14.09.2009 is given in Annexure-I. The selection will be made strictly on academic merit and through a personal interview.
The interested local candidates, within the age of 18- 35 years as on the last date fixed for the receipt of application (relaxable for specified categories as per rules) possessing the requisite qualifications, may submit their applications alongwith their CVs and copies of certificates (including mark statements of qualifying examinations) to prove their age and educational and professional qualifications etc., so as to reach the Principal, District Institute of Education & Training, DIET Building, Kavaratti, on or before 10th October, 2009. Applications received after the due date will not be considered.
This issues with the approval of Hon: Administrator vide Diary No.3026 dated 23.09.2009.
Sd/-
Radhey Shyam Director of Education ForSecretary (Deducation)"
In the Annexure-I to the above notice, it is mentioned that "preference will be given to those having M.Phil or P.hd".
7. The relevant extract (column 7 - Schedule-III) from Annexure A/2 Notification dated 12.01.2008, is also reproduced as follows :
"7. Educational and other qualifications required :
Essential : (A) (i) Master Degree in Malayalam/ Arabic/English/ Hindi / History/ Economics or Geography / Physics/ Chemistry/ Botany / Zoology/ Mathematics.
(ii) M.Ed. Preferably with specialization in Elementary Educational or in-service/Continuing Education or Distance Education or Educational Extension O R Degree/Diploma/Certificate in Teacher Education (Preferably Elementary Teacher Education) O R Degree/Diploma/Certificate in Distance Education / Counting Education - Extension.
Experience : (i) At least 3 years experience of teaching in a School preferably Elementary School/TEI (preferably ETEI).
(ii) Experience of active involvement in (a) In-
service/Continuing/ Distance Education of Teachers and or (b) Educational Extension."
8. Though the Annexures A-1 and A-2 speak of at least 3 years experience of teaching in a School preferably Elementary School/TEI (preferably ETEI), the point of contention is the essentiality of 3 years experience. A plain reading of the recruitment rules shows that it is mandatory. Rule-7 states that at least 3 years experience of teaching is required. The words 'at least' indicate the barest minimum and therefore, it is mandatory. The official respondents in their reply statement have admitted that when the recruitment rules were amended, it was not specifically clarified that instead of experience additional qualification of M.Phil or P.hd. was prescribed for direct recruitment. It is not in dispute that the Administrator is competent authority to frame recruitment rules and to prescribe various criteria to be adopted by the interview board. But once the recruitment rules are notified anything which is not in the recruitment rules cannot be read into it. The official respondents are bound to select candidates for appointment in accordance with the recruitment rules. Their stand that instead of experience additional qualification of M.Phil or P.hd is prescribed for direct recruitment is not tenable as there is no such provision in the recruitment rules. It is also to be kept in mind that DIET is meant for giving training to teachers. For a Lecturer in DIET, experience in teaching is very essential as he has to train the teachers. He is a trainer's trainer. Unless he has experience in teaching he will be lacking something which is essential to train the teachers.
9. In the notice dated 23.09.2009, it is stated, "The selection will be made strictly on academic merit and through a personal interview." This announcement is not in tune with the recruitment rules in so far as it is silent on the prescription of at least 3 years experience. If the intention of the respondents was to prescribe M.Phil or P.hd as preferred qualification for direct recruitment instead of experience, then that intention is not carried out in the modification of recruitment rules. Therefore, the recruitment rules stand as they are, with the mandatory three years experience. Whether it is wise to dispense with experience is to be pondered over by the respondents.
10. It is contended by the respondents that the applicant does not have the experience in teaching. Here again, a plain reading of the prescription of experience "at least 3 years experience of teaching in a School preferably Elementary School/TEI (preferably ETEI)" shows that experience in any School will do, but experience of teaching in Elementary School/TEI and in particular in ETEI is preferable. Therefore, it can be said that the applicant has got experience that can be taken into account. That is why he has been awarded 04.50 points on that count. Even then, in over all rating he was below the 5th and 6th respondents who do not have teaching experience.
11. As discussed above, teaching experience is a must for selection to the post of Lecturer (Hindi) in DIET in accordance with the recruitment rules. Although the respondent No. 1 is the competent authority to frame recruitment rules, he or the interview board headed by him cannot go against the notified recruitment rules in selecting candidates. Therefore, the O.A. is allowed to the extent indicated below:
12. Annexure A-10 select list F.No. 2/7/2007-DIET dated 22nd April, 2010, to the extent of selection to the post of Lecturer (Hindi) is quashed and set aside. The respondents 1 to 4 are directed to make selection to the post of Lecturer (Hindi) under the DIET, Department of Education, Lakshadweep, strictly in accordance with the recruitment rules."
7. The decision of this Tribunal in O.A. No. 389/2010 squarely covers the instant O.A. 3 years teaching experience is an essential qualification as per the Recruitment Rules and the notification.
8. It is contended by the applicant that she has got teaching experience of 5 academic years. This is not accepted by the respondents. However, the respondents admitted that if Annexure A-6 certificate was produced by the applicant alongwith her application or at the time of registration or interview, she could have been credited with teaching experience of 36 months. The applicant could not substantiate her averment that she had produced Annexure A-6 certificate before the Interview Board. In such a situation, it cannot be held that non consideration of Annexure A-6 certificate of the applicant for the purpose of selection to the post Lecturer in Botany as arbitrary. It is also seen that the 3rd respondent has teaching experience of 10 months only as per Annexure R-1(A), which is less than the stipulated minimum 3 years experience of teaching. Therefore, as per the material available to the selection committee, neither the applicant nor the 3rd respondent had the minimum essential teaching experience of 3 years. The selection of 3rd respondent who did not qualify to apply for want of minimum teaching experience is vitiated in law. In such circumstances, the proper course of action on the part of the respondents is to issue a fresh notification for selection to the post of Lecturer in Botany in the DIET. Accordingly, it is ordered as under.
9. It is declared that the selection of 3rd respondent to the post of Lecturer in Botany pursuant to Annexure A-7 notification is illegal. Annexure A-8 select list to the extent it applies to the post of Lecturer in Botany is hereby quashed and set aside. The respondents 1 and 2 are directed to make fresh selection to the post of Lecturer in Botany in the DIET strictly in accordance with the Recruitment Rules.
10. The O.A is allowed to the above extent. No order as to costs.
(Dated, the 17th February, 2011)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.