Central Administrative Tribunal - Ernakulam
P.S.Dhanoop vs Union Of India Represented By The ... on 27 October, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00191/2015
Thursday, this the 27th day of October, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P. GOPINATH, ADMINISTRATIVE MEMBER
P.S.Dhanoop,
S/o.P.M.Sahadevan,
Residing at Paramikkattil House,
Koodapuzha, Chalakudi P.O.,
Thrissur - 680 307. . . . Applicant
(By Advocate Mr.Shafik.M.A.)
Versus
1. Union of India represented by the Secretary,
Department of Posts/Director General, Posts,
Ministry of Communications & IT,
New Delhi - 110 011.
2. The Chief Postmaster General,
Kerala Circle, Trivandrum - 695 033.
3. The Superintendent of Post Offices,
Irinjalakuda Division,
Irinjalakuda - 680 121.
4. Shri.K.Aswin Kumar,
Alloor House, Thottipal,
Thrissur - 680 310.
5. Smt.Geethu.K.S.,
Kalathikudiyil House,
Anaviratti P.O., Koomparipara - 685 561. . . . Respondents
(By Advocates Mr.Anil Ravi,ACGSC [R1-3] & Mr.C.V.Milton [R4-5])
This application having been heard on 28 th September 2016, the
Tribunal on 27th October 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant is a graduate with MBA. He has competed in the selection conducted by the respondents for selection and appointment as Postal Assistant. Though his name was published in the select list, his name was removed from the same stating that his basic qualification is VHSC. As per the Recruitment Rules published in 2011 VHSC is not an admissible qualification for recruitment to the post. The applicant has done the VHSC course instead of HSC of the State Government or 12 th of the CBSE. The State itself has clarified that the course which the applicant has undergone and passed is equivalent to the normal 12 th with arts subjects. The applicant has undergone an internship at Chalakudy PO also during his studies. The applicant is aggrieved by the letter No.BB/53/Rectt/xx dated 21.11.2013 issued by the 3rd respondent by which his name is removed from the select list for the selection made for appointment as Postal Assistant/Sorting Assistant in the Direct Recruitment Quota conducted as per Notification No.Rectt/4-3/2011/II dated 11.8.2012 issued by the 2 nd respondent. The present action of the respondents which excludes VHSC with vocational streams from being considered for selection as Postal Assistants without considering the facts and changed circumstances is challenged. The Vocational Higher Secondary Course in Office Secretaryship is conducted by the Government of Kerala and Annexure A-5 certificate is issued by the Secretary, State Board of Vocational Higher Secondary Examinations, Kerala which comes under the purview of public authority. The comparison of Annexure A-10 applicant's mark list with Annexure A-11 and Annexure A-12 regular Higher Secondary mark lists shows that more or less the same subjects are studied for state and central plus 2 courses. Annexure A-13 certificate issued by the Director of Vocational Higher Secondary Examination, Kerala indicates that the course which was undertaken by the applicant is one with non vocational subjects and is equivalent to two years Higher Secondary course at Plus Two level with corresponding subjects conducted by the Department of Higher Secondary Education, Government of Kerala. The Department should have amended and modified the Recruitment Rules to correspond to the present day situation. Annexure A-13 certificate indicates that the course which was undertaken by the applicant is equivalent to the normal Plus 2 course and declared as equivalent to various qualifications which the Kerala Public Service Commission specifies, for appointment to the posts under the State Government. Annexure A-3 memo appointing the 4 th respondent as Postal Assistant who is lower in rank, in the place of applicant and Annexure A-4 memo appointing the 5th respondent as Postal Assistant who is not even included in Annexure A-8 select list is challenged. Relief sought by the applicant is to quash that portion of Annexure A-2 Recruitment Rules which excludes the candidates with VHSC course from being considered for appointment as Postal Assistants and to declare that he is entitled to be appointed as Postal Assistant as per his selection and inclusion in Annexure A-8 select list.
2. The respondents in their reply submit that the Department of Posts (Postal Assistants and Sorting Assistant) (Group C Non Gazetted) Recruitment Rules 2011 published in the Gazette of India dated 3.11.2011 details that the educational and other qualifications required for direct recruitment to the cadre of the post of Postal Assistants/Sorting Assistant is 10+2 standard or 12th class pass with at least 60% mark from recognized university/board of school education with English as compulsory subject (excluding vocational stream), 55% for other backward classes and 45% for SC/ST. The above qualifications were included in Annexure R-1 Recruitment Rules notification dated 11.8.2012. It is also mentioned in Para 13 (i) of Annexure A-7 notification that 'the applicants need not enclose/attach copies of any certificates/testimonials along with the application except original ACG-67/UCR receipt issued by Post Office towards payment of examination fee. All the applications are treated as provisional and admit card will be issued subject to his/her satisfying the eligibility conditions.' It is submitted that aptitude test for direct recruitment to the cadre of PAS/SAS for the vacancies 2011 and 2012 was conducted through approved outsourced agency ie. CMC India Ltd., by issuing Optical Mark Recognition Application (OMR) kits with following documents through post offices :
(i) Information Brochure/Instruction sheet. (ii) One optical mark recognition (OMR) application form. (iii) One envelop with a window. (iv) One brown envelop with pre-address. (v) Information Brochure/Instruction sheet.
3. In the information brochure/instruction against item 8-A qualification it was specifically mentioned that applicants who studied in vocational streams in 10+2 or equivalent examination are not eligible to apply. In Annexure R-3 it is mentioned in para 7 that 'it is also stated that all the candidates will be permitted provisionally. The candidature of the applicants will be sole discretion of the competent authority and if it is found that the applicant has furnished incorrect or false information, his/her candidature will be cancelled. It is evident from Annexure R-3 that the applicant was permitted to take up the aptitude test provisionally on the basis of the information furnished by the applicant himself in the application form. Applicant has applied for the post, knowing very well from Annexure R-2 information brochure that he is ineligible to apply for the post. The aptitude test paper for direct recruitment to the cadre of PA/SA for 2011 and 2012 were held in Kerala on 12.5.2013 and computer/typing test (paper III) on 10.8.2013 and 11.8.2013. A merit list of candidates provisionally selected for Postal Assistants/Sorting Assistants were published vide Annexure A-8 on 22.10.2013. Annexure A-8 list was only a division wise provisionally select candidate list for PA/SA and their merit cum preference, subject to their eligibility and availabilities of vacancies announced. The applicant was provisionally selected as Postal Assistant in Irinjalakuda Postal Division. While publishing the provisionally selected candidate Annexure A-8 list divisions were requested to inform the provisionally selected candidates about their provisional selections and subject to verification of documents like educational qualification, caste, age, police verification and fulfillment of all terms and conditions. Accordingly, Superintendent of Post Offices, Irinjalakuda informed the applicant about his provisional selection to cadre of Postal Assistant, Irinjalakuda Division vide Annexure A-9 and requested to produce original certificates for verification on 30.10.2013. During the original certificate verification it was revealed that the applicant did not possess the prescribed educational qualification required for the post as per Annexure R-1 notification dated 11.8.2012. Hence the applicant's name was removed from the provisional select list and the applicant was informed vide Annexure A-1. The other provisionally selected candidates who possessed the prescribed eligibility conditions as prescribed in Annexure A-7 notification were given provisional appointment with effect from 18.11.2013 vide Annexure A-3. Contention of the applicant that 5 th respondent, Smt.K.S.Geethu was not included in the select list is not correct. As per the extant Rules/instructions on direct recruitment to the cadre of PA/SA, a waiting list will be prepared to the extent of vacancies announced in the relevant category. The candidates in the waiting list will be considered against the drop out candidates under relevant category. Accordingly, the respondents announced the list of provisionally selected candidates for the drop outs in the select list according to the merit and choice of station and allotted the said candidates to respective divisions/units vide Letter No.Rectt./4-3/2011- IV dated 27.11.2013. Sl.No.1, Smt.K.S.Geethu (belonging to OBC community but meritorious to be considered under UR category) was provisionally selected under UR category and allotted to Irinjalakuda Division. Therefore the contention of the applicant that the 5 th respondent is not included in the select list is denied. Applicant qualified the 10+2 standard in the vocational stream which is not a prescribed qualification as per the Department of Posts (Postal Assistants and Sorting Assistants) (Group C Non Gazetted) Recruitment Rules 2011 published in the gazette of India dated 3.11.2011 marked as Annexure A-2 in the O.A. In the Recruitment Rules it is specifically mentioned that the educational and other qualification required for direct recruitment to the cadre of Postal Assistant/Sorting Assistant is 10+2 standard or 12 th class pass with at least 60% marks from recognized university/Board of School Education with English as a compulsory subject (excluding vocational streams), 55% for Other Backward Classes and 45% for SC/ST. The applicant produced Annexure A-11 and Annexure A-12 +2 mark list of candidates Mr.Manu Francis and Revathy R conducted by the Board of Higher Secondary Examination Kerala and mark list of another candidate in the SSC Examination conducted by the Central Board of Secondary Education and certificate issued by the Director of the Vocational Higher Secondary Examination Kerala Annexure A-13 to the effect that the course which was undertaken by the applicant is one with non vocational subject and is equivalent to two year Higher Secondary Course at plus two level with subjects corresponding to Higher Secondary Education, Government of Kerala. Department contests this by arguing that it has it own notified rules for recruitment and recruitment is conducted as per the notified rules. The State Government Rules/Orders are not binding on the Central Government. The Recruitment Rules for PA/SA notified by the department clearly stipulates that candidates possessing educational qualification from vocational streams are not eligible for consideration for appointment to the cadre of PA/SA. The Recruitment Rules are statutory and common to all Postal Circles in India.
4. The 2nd respondent had referred the case to Postal Directorate, New Delhi along with Government of Kerala GO No.2700/03/G.E dated 10.9.2003 vide Director of Postal Services DO Letter No.Rectt/4-1/Rig/04 dated 23.11.2006. Postal Directorate in their reply submitted that the Recruitment Rules are statutory in nature and the provisions contained therein cannot be deviated. No representation produced by the applicant as Annexure A-14 was received by any of the respondents. It is fabricated one as a result of afterthought to support his claim.
5. It is also submitted that while notifying PA/SA Direct Recruitment in 2005, Smt.Susan George John and another filed O.A.No.265/2005 before the Ernakulam Bench against exclusion of Vocational Higher Secondary in PA/SA Direct Recruitment. The Tribunal disposed of the O.A with directions to the applicants to file comprehensive representation to the Chief Post Master General, Trivandrum, the 1 st respondent and also directed the respondent to give appropriate reply to the applicants. The representation submitted by the applicants were disposed of by the Chief Postmaster General, intimating that the department has its own rules for recruitment. The State Government(s) rules/orders are not binding on the Central Government. The Recruitment Rules for PA/SA notified by the department clearly stipulates that candidates possessing educational qualification from vocational streams are not eligible for consideration for appointment to the cadre of PA/SA and this applies uniformly to all similarly placed persons. Smt.Gisha Beegam a candidate for compassionate appointment filed O.A.No.222/2007 before the Ernakulam Bench of the Tribunal against the PA/SA Recruitment Rules which excludes the vocational stream for PA/SA Recruitment and also for a direction to the respondents to appoint her in the post of PA/SA or to quash Recruitment Rules 2002. The Tribunal disposed of the OA and directed that the prayer of the applicant cannot be granted.
6. In the reply statement filed by Respondent Nos.4-5 it is submitted that applicant in this O.A was not possessing the specified qualification mentioned in Annexure A-2 Recruitment Rules published in Gazette of India dated 3.11.2011 to apply for the post of Postal Assistant. Educational and other qualifications required for direct recruits is mentioned below :
10+2 standard or 12th class pass with at least 60% marks, from recognized University/Board of School Education, Board of Secondary Education with English as a compulsory subject (excluding vocational streams), 55% for Other Backward Classes and 45% for Scheduled Castes/Scheduled Tribes.
As the vocational streams are excluded the applicant is not a qualified person to apply for this post. The applicant was duly informed this matter vide Annexure A-1 letter dated 21.11.2013. The 4 th and 5th respondents were duly selected to this post by a due process of selection and 4th respondent is ranked as No.3 in the main list as evidenced by Annexure A-8. 5th respondent was assigned No.1 in the supplementary rank list. After the appointment of the 5 th respondent 14 more persons included in the supplementary list were appointed. The main contention of the applicant is to amend the Recruitment Rules to provide opportunities to the Vocational Higher Secondary candidates to apply for this post stating that the VHSC certificate is equivalent to the SSC and CBSC examinations and the Kerala Public Service Commission has already treated it as equivalent for appointment to the posts under the Government of Kerala. The applicant had never brought this matter to the notice of the respondents 1 to 3 during or before the process of selection, but simply applied for the post knowing that he was not in possession of the specified qualification mentioned in Annexure A-2 notification. The complaint should have been made at the time of notification and there were ample time to challenge it.
Without doing so now the applicant filed this application after a lapse of 1 B= years.
7. Heard the counsel for applicant and respondents and perused the written submissions made. We note that the challenge to the educational qualification provision has been made in a similar OA by an applicant similarly placed. The Tribunal in O.A.No.222/2007 on 18 th December 2007 held as follows :
' The limited issue which now falls for our consideration is whether the educational qualification of the applicant comes within the purview of the Recruitment Rules prescribed for appointment for PA/SA.
7. According to the Recruitment Rules, Annexure R-2 as submitted by the respondents - 'the minimum educational qualification for direct recruits for the post is 10+2 standard or 12 th class pass of a recognized University or Board of School Education or Board of Secondary Education with English as a compulsory subject (excluding vocational streams)'. The applicant has passed 10+2 examination in vocational school stream, which has specifically been excluded under the Recruitment Rules, extracted above. Thus prima facie the applicant is not eligible to be considered for the post.
8. The applicant's further contention is that on the basis of the vocational qualification she has been admitted to the degree course of the Kerala University and she has passed B.Com Examination of the Kerala University in 2005. Therefore, being in possession of higher qualification than the 10+2 she is fully qualified to be appointed as PA/SA. The contention of the respondents is that holding of higher qualification does not mean that the applicant is in possession of the basic qualification prescribed by the Recruitment Rules; and that the approval of the Government of Kerala that the Vocational Higher Secondary Course is equivalent to the Higher Secondary Course (plus two) conducted by the Kerala Board of Higher Secondary Education was brought to the notice of Directorate, however, it was informed by Annexure R-4 that the Department has its own rules for recruitment and State Governments order/rules are not binding on the Central Government.
9. As regards determination of equivalence of qualification, the applicant has relied on the Annexures A-6 and A-7 which is the correspondence between the Hon'ble Minister of the HRD and Hon'ble Member of Parliament. In his reply, the Hon'ble Minster stated that the Association of Indian Universities (AIU) has already given equivalence to the +2 level Vocational Courses of Vocational stream with Senior Secondary Examination/Pre-University of an Indian Board. As seen from the letter, which is extracted below got further clarifies that such equivalence certificate can only be issued by the Association of Indian Universities and not by the Ministry and it is considered for admission to their affiliated Colleges. The Annexure A-6 letter dated 4th December, 2006 of Hon'ble Minister of Human Resource Development, reads as follows :
'Dear Shri.Rajendranji, Kindly refer to your letter dated 16.10.2006 regarding recognizing the Vocational Higher Secondary Course Examination conducted by the Kerala Government as equivalent to the Higher Secondary Courses.
As you are aware, Association of Indian Universities (AIU) has already given equivalence to the +2 level Vocational Courses of Vocational stream with Senior Secondary Examination/Pre University of an Indian Board. This is to inform you that such equivalence certificate is issued only by AIU and not by the Ministry. The Universities in India that are members of AIU recognize the equivalence issued by AIU while considering admission to their affiliated Colleges.
With regards.
Yours sincerely, Sd/-
Arjun Singh'
10. Since Kerala University had admitted her into degree course it can very well be presumed that Kerala University had recognized the vocational course for the purpose of admission to its Degree Course. The only fact evident from this correspondence is that the Association of Indian Universities including Kerala University have recognized plus two level Vocational Courses of Vocational stream as equivalent to the Senior Secondary Examination/Pre University in their Colleges. The respondents have not disputed this position. However, this position would not implicitly mean that the qualification also gets automatically recognized so far as employment is concerned. For the purpose of employment, recruitment under the Government is determined by the Recruitment Rules of the post in question. In the instant case, the Recruitment Rules issued in 2002 have for some reasons not exactly discernible from the pleadings, excluded the vocational stream and has specifically insisted upon passing 10+2 in the regular scheme. It is well settled law that the Executive has the power to make Recruitment Rules and prescribe method of recruitment, qualification etc., requires for various categories of posts and this power should not be interfered with by the Courts as has been laid down in several judgments by the Hon'ble Supreme Court. For whatever reasons such an exclusion of the vocational stream exists in the Recruitment Rules and the underlying purpose is not made known, but it cannot be held to be irregular/illegal and this Court cannot issue a direction that the Vocational Higher Secondary Course should be treated for the purpose of employment as equivalent to the regular Plus Two Course of Board of Secondary Education or Pre University Course. This is a decision to be taken by the competent authority for framing of the Recruitment Rules.
11. The Apex Court in a recent judgment in Bihar Public Service Commission & Ors. Vs. Kamini & Ors. Reported in (2007) 5 SCC 519 has laid down that 'in the field of education, Court of law cannot act as an expert. Normally, therefore, whether or not a student/candidate possesses requisite qualification should better be left to educational institutions. This is particularly so when it is supported by an Expert Committee. Such a decision, in our judgment, cannot be termed arbitrary or otherwise objectionable.' The same view was taken by the Apex Court in the case of University of Mysore vs. CD Govinda Rao (AIR 1965 SC
491). These decisions of the Apex Court clearly point to recognition of the fact of primacy of the Recruitment Rules in the matter of employment. We can express the hope that the authorities concerned will take note of the position as brought out at Annexure A-6 letter of the Hon'ble Union Minister of HRD, which is also the decision taken by the Association of Indian Universities and consider its impact on the Recruitment Rules and the prospects of the candidates appearing for such selections and take an appropriate decision whether any amendment is required to be carried out in the Recruitment Rules. But as the Recruitment Rules stand at present, we cannot find fault with the stand of the respondents that the applicant does not possess the qualification required for the post of PA/SA as illegal and unreasonable. The case relied on by the learned counsel for the respondents also does not help the applicant as the issue under consideration in that case was whether the respondents possessing qualification of Bachelor of Unani Medicine and Surgery from Kanpur University apart from Matric with Hindi and 10+2 with Science, who were denied appointment on the ground of not possessing diploma in Unani Dispenser or Up-Vaidya, as the Bachelor of Unani Medicine and Surgery could be considered as possessing the essential qualification prescribed under the Recruitment Rules. The Apex Court held that neither diploma was stipulated as required qualification nor degree was expressly excluded from the required qualification in the advertisement or the Rules and, therefore, the respondents should be treated as possessing the required qualifications and directed to appoint them in the post within one month. The stand of the respondents in the instant case is that the applicant has completed Higher Secondary Examination in the Vocational Stream, which is specifically excluded from the purview of the essential qualification, as per the Recruitment Rules, and hence both the cases are not comparable.
12. So far as giving compassionate appointment to the applicant is concerned, the respondents have not ruled out that the applicant is not entitled to get appointment on compassionate ground and only stated that she is not eligible for appointment in the post of PA/SA as she does not possess the essential qualification as mentioned in the Recruitment Rules. Her request is being considered for the post of Group D or LDC and it is pending for examination in the Circle Relaxation Committee (CRC) scheduled to be held shortly. We expect and hope that the CRC would take a final decision soon and if the applicant is found eligible she could be appointed in the post of Group D or Postman.
13. In the light of the legal position as discussed above, prayer of the applicant to direct the respondents to appoint her in the post of PA/SA or to quash the Annexure R-2 Recruitment Rules cannot be granted........'
8. The Tribunal has in above case considered the subject matter of this O.A and dismissed the same. The applicant is well qualified but does not have the basic qualification prescribed in the notified Recruitment Rules for the post. Giving a relaxation of the Recruitment Rules to applicant will open a pandora's box of similarly placed persons seeking a similar employment by application of relaxation. Recruitment Rules are not notified for being overlooked nor to be honoured by its breach, to suit individual needs. Recruitment Rules provide uniformity and an opportunity to ensure that the same yardstick is applied to thousands of persons who apply for a job. Any relaxation favouring one person against others who are similarly placed but not before us can not be countenanced. Such a concession should not be followed at all. This is not a case where rule was not applied or not known to applicant. This is a case where relaxation is being sought by amending the Recruitment Rules. If such a relaxation is given we will be doing injustice to many similarly placed and who did not apply in compliance to qualifications stipulated in the vacancy notification. It will also be subjugating Recruitment Rules to individual demand and not to the requirement of the job notified. Every department of Government of India should be given the liberty to draft the Recruitment Rules as per job requirements. The Recruitment Rules should not be subject to alterations or modifications on the basis of qualifications possessed by non eligible candidates. Nor should non eligible candidates dictate the terms of the Recruitment Rules. There are several streams of employment open to persons qualified in Vocational Courses and it is not a case where employment opportunities are closed to such candidates.
9. The respondent is a All India Service provider covering all the States in the country. All the States have their own version of Vocational Courses and would be addressing the respondents for recognition to be accorded to their students. Hence the respondents having considered the requirements for the job have drafted the Recruitment Rules. The candidates cannot dictate the requirements of Recruitment Rules. The job requirements and not individual requirement should guide the drafting of Recruitment Rules. Once drafted and gazetted, the Recruitment Rules are final and should be followed without fear or favour uniformly for all applicants in the country in all States. The applicant is seeking a favour which is denied to other similarly placed persons who had not applied as they did not possess the qualification prescribed in the notification. This is not a case where notified Recruitment Rules have been violated or any mala fide established. This is an already adjudicated matter where the prayer has been considered in great detail and Tribunal came to the conclusion that the right to draft Recruitment Rules according to job specification rests with the respondent department.
10. In the light of what is stated above, the O.A is dismissed. No costs.
(Dated this the 27th day of October 2016)
(P.GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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