Central Administrative Tribunal - Bangalore
N Kalimullah vs South Western Railway on 18 December, 2023
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OA.No.11/2019 & 123/20121/CAT/Bangalore
Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00011/2019
AND
ORIGINAL APPLICATION NO.170/00123/2021
ORDER RESERVED ON:07.11.2023
DATE OF ORDER: 18.12.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
OA.No.11/2019
N. Kalimullah
S/o Late Noorulla
Aged about 40 years,
O/o Senior Section Engineer (P.Way)
South Western Railway, Dharmapuri(North)
R/o C/o Sri.O. Zabirullah,
#11, 8th Main, 5th Cross,
Shamanna Garden
Bengaluru-560016. ....Applicant
(By Advocate Shri M. Raghavendrachar)
Vs.
1.Union of India
Rep. by General Manager
South Western Railway,
Hubli-580020.
2. Senior Divisional Personnel Officer,
South Western Railway,
Bengaluru-560023.
3. Mahendra,
Aged about Major
JE/P.Way/TK
Office of the Senior Section,
Engineer, Permanent Way, Tumkur,
South Western Railway-572102.
4. Balu Naik
Aged about Major
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OA.No.11/2019 & 123/20121/CAT/Bangalore
Bench
JE/P.Way/YPR,
Office of the Senior Section
Engineer, Permanent Way,
Yeswantpur,
South Western Railway-560022.
5.M. Subramanyamn,
Aged about Major
JE/P.Way/BYPL,
Office of the senior Section
Engineer, Permanent Way,
Baiyappanahalli,
South Western Railway-560093.
6. Dhara Singh Meena,
Aged about Major
JE/P.Way/SSPN,
Office of the Senior Section
Engineer, Permanent Way,
Sridi Sai Prashanthi Nilayam,
South Western Railway-515133.
7. Harish,
Aged about Major
JE/P.Way/SSPN,
Office of the Senior Section
Engineer Permanent Way, Penekonda,
South Western Railway-515110.
8. Alex Pandi,
Aged about Major
JE/P.Way/PMD,
Office of the Senior Section
Engineer, Permanent Way,
Mandapam,
South Western Railway-623518
9. Huligeva Chikngodappa,
Aged about Major
JE/P.Way,
Working under the Office of
Principle Chief Engineer,
South Western Railway,
Rail Soudha, Gadag Road,
Hubballi-580020. ....Respondents
(By Shri N. Amaresh for Respondents No.1 & 2,
None for Respondents No.3, 4 & 6 to 9,
Shri P.A. Kulkarni for Respondent No.5)
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OA.No.11/2019 & 123/20121/CAT/Bangalore
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OA.No.123/2021
Sri.M.Subramanyam,
Age 34 years,
PF No:42504517442
S/o Sri.B.Muneppa,
JE/P.Way/BYPL
Office of Senior Section Engineer/P.Way/SBC
Bengaluru: 560 023. ....Applicant
(By Advocate Shri P.A. Kulkarni)
Vs.
1.General Manager
South Western Railway,
Gadag Road, Hubballi: 580 023,
for and on behalf of Union of India.
2. Personnel Department,
South Western Railway Headquarters,
Zonal Headquarters Building,
Hubballi: 580020,
Represented by Chief Personnel Officer
3. Divisional Railway Manager,
Divisional Office,
South Western Railway,
City Railway Station,
Bengaluru: 560 023.
4 Sri.N.Kalimullah,
Age 38 years,
PF No: 04507718
S/o Late Noorulla,
TM.III/DPJ(N)
O/o Senior Section Engineer (P.Way)
South Western Railway,
Dharmapuri (North).
With last given residential address as
C/o Sri.O.Zabirullah,
11, 8th Main, 5th Cross,
Shamanna Garden,
Bengaluru: 560 016. ....Respondents
(By Shri N. Amaresh for Respondents No.1 to 2,
Shri M. Raghavendrachar for Respondent No.4)
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OA.No.11/2019 & 123/20121/CAT/Bangalore
Bench
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. Two separate Original Applications i.e., OA. No. 170/00011/2019 and OA.
No. 170/00123/2021, have been filed before this Tribunal, under Section 19 of the Administrative Tribunals Act, 1985. The issues involved in both these OAs are inter connected. Accordingly, both the OAs were heard together and are being disposed of through this common order.
2. OA.No.11/2019 has been filed by Shri N. Kalimullah, seeking the following reliefs:
a) Direct the respondents to produce the selection file and on perusal, order for quashing of the selection panel dated 25.10.2018 (Annexure A-7), as it has been done against selection procedure.
b) Grant any other relief or reliefs as deemed fit and proper in the interest of justice and equity.
3. OA.No.123/2021 has been filed by Shri M. Subramanyam, seeking the following reliefs:
a) Quash the action taken by Bengaluru Railway Division Respondent No.3 herein under No: B/P.608/VII/JE/P.Way-17 dated 28.01.2021, (Annexure-A7) in cancelling applicant's finalized selection for the promotion post of JE/P.Way and reverting him to the feeder cadre post of Track Maintainer III in Level 02 with a further direction to the respondents not to disturb the applicant's position held by him in terms of the posting order bearing by No:B/P.608/VII/JE/P.Way/17 dated 5 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench 05.02.2020 (Annexure A5) issued by Bengaluru Railway Division, R-
3 herein.
b) Quash the selection of Respondent No.4 as evidenced by the impugned order No: B/P.608/VII/JE/P.Way-17, dated 28.01.2021, (Annexure- A7) passed by Divisional Railway Manager, Bengaluru, R-3, in case it should entail the consequence of this applicant's reversion in terms of the said order.
c) Pass any other order or direction that this Tribunal may deem fit and necessary in the facts and circumstances of the present case and in the interest of justice and equity.
4. In the Original Application No. 11/2019 filed by the applicant Shri N. Kalimullah, the applicant had stated that the impugned selection as prescribed was through a written test, followed by perusal of service records. The applicant had qualified in the written examination and had become eligible to be considered for empanelment. However, his name was not in the final selected panel in spite of having performed well in the written test and having a clean official record.
5. The respondents in OA No. 11/2019 had taken the stand, that as per the notification issued, the minimum education qualification prescribed for the post was 10+2 pass with at least three subjects out of Mathematics, Physics, Chemistry and Computer Science OR having a Diploma in Civil Engineering (Transportation), recognised by AICTE. After completion of the written examination, it was noticed that Shri Kalimullah was not in possession of the prescribed educational qualifications, since he did not have 6 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench a Diploma in Civil Engineering (Transportation) from an institute having recognition/ affiliation of AICTE. Accordingly, he was not considered to be eligible for the post and was not selected.
6. This Tribunal, vide its order dated 26.2.2020 in OA. No. 11/2019, held as follows:
"2. It merely says that diploma may not be accepted because it does not have any affiliation to AICTE as per the information acquired from the website. Which website, they have not mentioned, may be the website of AICTE themselves. But then the institution of Permanent Way Engineer (India) is internal institution of the Railways themselves and they train these people only for employment in Railways and no other purpose. There cannot be any doubt that their own diploma is valid for their own employment.
3. Therefore, applicant is held to be eligible and a mandate is issued for the same. Consequences of that will follow within the next two months. OA is allowed. No costs."
7. In accordance with the orders passed by the Tribunal, the respondents considered Shri Kalimullah as eligible and consequently inserted the name of Shri N. Kalimullah in the selection panel and removed the name of one Shri M. Subramanyam from the selection panel and reverted him from the post of JE/P. Way in Level 6 to Track Man in Level 2 vide orders No:
B/P.608/VII/JE/P.Way-17 dated 28.1.2021 (Annexure A7). 7
OA.No.11/2019 & 123/20121/CAT/Bangalore Bench
8. Aggrieved by this order, Shri Subramanyam filed a Review Application No.4/2021 seeking leave of this Tribunal to review the orders dated 26.2.2020 passed in OA.No.11/2019 on the ground that the Review applicant was not a party respondent in OA.No.11/2019 and the outcome of the OA had adversely affected the review applicant in respect of his promotion as JE/P. Way.
9. The said RA No.4/2021 was allowed by this Tribunal vide orders dated 8.9.2022. The operative portion of the order passed in RA No. 4/2021 was as follows:
"5. A perusal of the prayer clause in OA.No.170/0011/2019 indicates that the relief sought for by the Original Applicant (Respondent No.1, N. Kalimullah), in that OA was as follows:
"Direct the respondents to produce the selection file and on perusal order for quashing of the selection panel dated 25.10.2018, as it has been done against selection procedure."
6. The relief sought for by Respondent No.1 (applicant in OA.No.170/0011/2019) was for quashing the selection panel issued on dated 25.10.2018. A perusal of the OA further reveals that the party respondents in that OA were as follows:
1. Union of India, Rep. by General Manager, South Western Railway, Gadag Road, Hubli-580020.
2. Senior Divisional Personnel Officer, South Western Railway, 8 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench Bengaluru - 560 023.
7. It is therefore apparent that the order passed in the said OA was without impleading the persons in the said panel, who would be affected adversely, and without giving any opportunity to them to defend their case. The present Review applicant was a part of this selection panel and the orders in the OA were passed without giving any opportunity to the present Review applicant.
8. Accordingly, keeping in view the above facts, there is merit in the Review Application. The Review Application is accordingly allowed. List the OA No. 170/0011/2019 for hearing afresh after impleading all the affected parties in the case.
9. OA.No.170/0011/2019 may accordingly be listed along with the connected OA.No.123/2021 on 16.11.2022.
10. The applicant, Shri M. Subramanyam, in OA.No.123/2021, had also sought for an interim stay of order No. B/P.608/VII/JE/P.Way-17, dated 28.1.2021 (Annexure A-7), passed by Divisional Railway Manger, Bengaluru, so far it related to him and to respondent No.4. This Tribunal granted an interim stay as prayed for, vide orders dated 9.2.2021.
11. The cause of grievance in OA.No.11/2019 and OA.No.123/2021 are interlinked and have arisen due to the fact that Shri Kalimullah had initially been declared to be eligible for consideration for selection in the panel notified on 25.10.2018, which had consequently resulted in Shri Kalimullah, in pursuance to the orders issued by this Tribunal, being included in the panel vide order dated 28.1.2021 issued by Respondent No.3, and the name 9 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench of the Review Applicant Shri Subramanyam being simultaneously removed from the panel which had been notified and acted upon earlier.
12. The amended OA No.11/2019 was heard afresh, after impleading all the affected parties in the case.
13. The contentions of the applicant Shri Kalimullah in the amended OA No. 11/2019 are as follows:
a) The applicant while working as Track Maintainer Grade-III in the office of the Senior Section Engineer (P.Way), Dharmapuri (North) applied for the post of Junior Engineer against 20% LDCE quota in response to the notification dated 06.11.2017 issued by Respondent No.2.
b) The notification dated 06.11.2017 was issued for filing up seven vacancies with the communal break up of 1-SC and 6- UR. This was amended by a communication dated 17.04.2018 with a communal break up of 1-SC, 1-ST and 5-UR. The mode of selection was through a written test followed by perusal and assessment of service records.
c) The employees who secure at least 60% marks in professional ability and also obtain 60% in the aggregate are placed in the panel.
d) The written examination was held on 07.06.2018 and 14 employees qualified in the written examination and become eligible for consideration for empanelment. The applicant's name is figuring at serial No.12 in the said memorandum.10
OA.No.11/2019 & 123/20121/CAT/Bangalore Bench
e) One of the co-employees of the applicant, could not find his name in the written test qualified list. He sought his marks in the written examination and cut off marks for the general category and SC/ST in the subject selection under RTI. In response to that, he was supplied with the instructions based on which the selection had been finalized by the respondents by their letters dated 30.08.2018 and 24.10.2018.
f) The applicant could not find his name in the selected panel in spite of having performed well in the written test and having a clean official record. He filed a representation to the respondent No. 2 on 29.10.2018 which has not been addressed by the respondent so far. The applicant sought the written exam marks etc., on 27.10.2018 and 29.10.2018, which has not been furnished to him so far, which also raises a doubt about the selection procedure followed and the selected panel released.
14. The respondents No.1 & 2 filed their written statement wherein they have averred as follows:
a) Applications were invited from the staff of P. Way wing who fulfil the condition stipulated in notification for filling up of 07 vacancies (UR-
05, SC-01 and ST-01) in the category of JE/P.WAY in level-6 of Civil Engineering Department against 20% LDCE vacancies, vide Sr. DPO/SBC notification No. B/P.608/VII/JE/P.Way/17 dated 06.11.2017.
b) In pursuance to the aforesaid notification, 127 employees submitted their applications volunteering for the above selection. Out of 127 employees, 113 employees were provisionally considered eligible for 11 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench the selection, subject to verification of certificates on the Educational Qualification and making entry of education qualification in the Service Register.
c) The written examination was held on 07.06.2018. Out of the 113 employees alerted, 104 attended the examination and nine 09 employees remained absent. Out of the 104 employees who attended the written examination, fourteen 14 candidates, including the applicant secured the requisite qualifying marks. The result was declared vide Sr.DPO/SBC memorandum No.B /P.608 /VII /JE /P.Way/17 dated 13.07.2018 (A-5). The empanelment of these employees was subject to verification of education qualification certificates, suitability to be assessed by a duly constituted selection committee, based on the service records, marks secured in the written examination and assessed vacancies duly following reservation provisions.
d) The minimum educational qualification prescribed for the post was "10+2/Intermediate/PUC/12th Std. pass with three subjects out of Mathematics, Physics, Chemistry and Computers" OR "Diploma in Civil Engineering (Transportation) with affiliation of AICTE".
e) After publication of the written examination results, it was noticed that the applicant Shri N. Kalimullah (PF N04507718), working as Track Maintainer/Gr.III/Dharampuri (N), was not in possession of the prescribed educational qualification and as such he was declared not eligible vide letter No.B/P.608/VII/JE/P.Way/17 dated 09.10.2018. 12
OA.No.11/2019 & 123/20121/CAT/Bangalore Bench The applicant/employee was accordingly notified. As per Service Register entry made as on the date of notification, the applicant had passed SSLC (Tenth Std.) only. The Diploma awarded to him was not from an AICTE affiliated institution. Therefore, he did not fulfil the requisite Educational Qualifications as stipulated in the notification.
f) The suitability of the candidates was therefore assessed only for 13 candidates based on the written examination marks, Annual Performance Appraisal Reports (APARS)/Working report and Service Register for the preceding three years i.e. 2014-15, 2015-16 and 2016- 17 of the date of notification.
g) Being a safety category, one has to secure 60% marks in professional ability and 60% in aggregate to be placed in the panel and also should be declared medically fit in Aye Three medical classification. The selection committee recommended names of seven employees to be placed on the panel to the post of JE/P.Way in level 6 of VII PC pay matrix (in pay band Rs.9300- 34800+GP 4200 VI CPC) against 20% LDCE quota in Civil Engineering Department/SBC Division purely on merit as per instructions contained in RBE No113/2009 and in terms of instructions contained in para (2) of DOP&T Office Memorandum No-36012/11/2016-Estt (Res 1){Pt. II} of 15.06.2018 to the extent of vacancies notified, vide Sr. DPO letter No. B/P.608/VII/JE.P.Way/17 dated 25.10.2018.
15. The respondent No.5 (Shri M. Subramanium) has filed his written statement, wherein he has averred as follows:
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OA.No.11/2019 & 123/20121/CAT/Bangalore Bench
a) Railway Board vide No: E(NG)1-2007/PM/5 dated 29.10.2014 under RBE 120/2014 has prescribed the method of induction in the category of JE (Path. Way) of Civil Engineering Department carrying a pay scale of Rs.9300- 34800 +Grade Pay of Rs.4200 (Level 6 of 7th CPC pay matrix).
b) As per RBE No. 120/2014 referred to above, SWR, Bengaluru Division, Bengaluru issued notification dated 6.11.2017 to fill up 07 vacancies meant for 20% LDCE quota. The employees belonging to the grades mentioned in serial no.1 in Annexure-Al should have completed three years regular Railway Services in P. Way wing as on the date of notification and should have the essential qualification of 10+2 with at least three subjects out of Mathematics, Physics, Chemistry and Computer Science or having Diploma in Civil Engineering (Transportation) having the recognition/affiliation of AICTE.
c) This respondent No.5, having the essential qualification as well as required number of years of regular Railway Service, was a candidate in this selection process. The applicant Shri Kalimullah, admittedly possessing a Diploma in Railway Engineering awarded by the Institution of Permanent Way Engineers (India), Railway Bhavan, New Delhi was also a candidate in this selection process.
d) Selection panel in respect of this selection process came to be notified by the Bengaluru Division on 25.10.2018. The respondent is one of the selected candidates. Applicant was not selected on the ground of his 14 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench not possessing essential qualification of Diploma in Civil Engineering (Transportation) having the recognition/affiliation of AICTE.
e) This Tribunal at the time of final hearing by referring to the information furnished by the Railways under No: SWR (P)HQ/2009/OA 170/11/2019/NKM dated 10.02.2020 concluded that the Diploma awarded to the applicant by the Permanent Way Engineers (India) conducted by the Institution of Engineers (India) being an internal Institution of the Railways themselves, is also a valid qualification for the post in question. By an order dated 26.02.2020 the OA No.11/2019 came to be allowed.
f) The selection committee proceedings were re-drawn considering Sri. N. Kalimullah as eligible for consideration for selection. Further, selection committee under the circumstances sought to exclude/delete the name of this respondent from the original panel. That is how the revised select panel dated 28.01.2021 which is under challenge in OA No. 123/2021, has come into being.
g) Next selection notification was also issued by the administration namely, DRM Bengaluru on 11.02.2019 in response to which 146 applications are reportedly received and 115 employees were found eligible. In respect of this selection exercise, initially 15 vacancies were sought to be filled up. The vacancy position came to be revised to 37 as per the revised notification dated 29.08.2019. The applicant Sri. N. Kalimullah was a candidate in this selection process also and even though he was entitled to be recommended for including his name in 15 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench the select panel, his name was not recommended by the select panel for empanelment on the ground that he is already empaneled in the revised panel issued on 28.01.2021 with reference to 2017 notification.
h) In view of recalling of this Tribunal's earlier order passed in OA No.11/2019 as explained above, the administration ought to have adjusted the instant applicant in the selection process initiated in the year 2019 about which a mention has been made above. It is further to be noticed that in respect of 2019 selection process vacancies, only 28 persons are absorbed and thus the total vacancies notified under the revised notification dated 29.08.2019 i.e., 37 have not been filled up in 2019 selection exercise. From the records it is clear that the instant applicant ought to have been absorbed in 2019 selection process as his name was at SI.No.4 in the selection committee's proceedings on the basis of his merit. This respondent therefore, humbly submits that official respondents owe a duty to appraise this Tribunal in this connection for effective adjudication of the instant OAs and in the interest of justice and equity.
i) That candidature of Shri. N. Kalimullah, the instant applicant, in the 2019 selection exercise is purportedly entertained by the administration, not on the ground of his possessing essential qualification Diploma but on the ground of his possessing educational qualification of 10+2 pass with three subjects out of Mathematics, Physics, chemistry and Computer Science. It is pertinent to clarify here itself that as per RBE 20/2014 according to which both 2017 & 2019 16 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench selection exercise has taken place, prescribes essential qualification for competing against 20% LDCE is as follows "Either 10+2 pass with at least three subjects out of Mathematics, Physics, Chemistry and Computer Science OR Having diploma in Civil Engineering/Civil Engineering (Transportation) having the recognition/ affiliation of AICTE."
j) When the matter was heard and decided on 26.02.2020, the applicant herein only pressed into service the validity of his candidature on the ground of his possessing Diploma awarded by Institution of Permanent Way Engineer (India) and not on the ground of his possessing 10+2 pass with Physics, Chemistry and Mathematics. From the service record, it is evident that this applicant did not possess 10+2 pass with Physics, Chemistry & Mathematics subjects as enjoined in RBE 120/2014, at that time. It was impermissible to permit the instant applicant to contest in the 2017 selection process with the threshold bar of his admittedly not possessing essential qualifications prescribed by the Railway Board under RBE 120/2014 referred to above.
k) In addition to the attendant facts as above, with the announcement of the next select panel in reference of 2019 exercise, the original panel notified on 25.10.2018 with reference to 2017 exercise is not at all open for meddling.17
OA.No.11/2019 & 123/20121/CAT/Bangalore Bench
l) It is also to be noticed herein that the order dated 26.02.2020 passed initially by this Tribunal in the instant OA is no more available in view of its recalling by this Tribunal in RA 04/2021. Pursuant to this Tribunal's said order dated 26.02.2020, the respondent administration had come out with a revised select panel thereby removing this respondent's name and including instant applicant's name in the revised panel. It is therefore, submitted that, in respect of 2017 selection process, applicant admittedly did not possess the essential education qualification and as such OA No. 11/2019 on that ground itself is liable for dismissal.
m) Since the applicant was not eligible to be a candidate in view of his not possessing the essential educational qualification prescribed for the post in question, he has no right to question the selection process in any manner. In other words, the OA filed by the applicant itself is without locus.
n) Diploma in Railway Engineering offered by the Institution of Permanent Way Engineers (India) is treated as an additional qualification for promotion but not an essential qualification prescribed under RBE 120/2014. In this connection a reference material namely, prospectus for correspondence course of "Diploma in Railway Engineering offered by Institution of Permanent Way Engineers (India)" is produced as Annexure-R7, for reference of this Tribunal.
o) This respondent also refers to a decision rendered by the High Court of Madras in case of 'S.K.Sujatha & others versus State of Tamil Nadu & 18 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench others' reported in (2022) SCC Online Madras 3707' and the same is produced as Annexure-R8 for ready reference. In this case it is held that the powers of judicial review does not provide for going into the educational qualification in any manner, and the essential qualifications as prescribed in the rules alone prevails.
p) After this selection, with the passage of time, regular absorption has also taken place in the promotional post, and the other selected candidates in this panel, namely the other private respondents herein, vide R-2's order dated 31.12.2022, have been issued with further promotion order to the grade of Senior Section Engineer (P.Way) level 7 of 7th PC pay matrix in Civil Engineering Department.
q) R-2 authority, in the interest of justice and equity, ought to have issued promotion orders to the instant applicant also in view of his qualifying in the 2019 selection process as already explained above. It is submitted that administration has no justification whatsoever in not doing so. Such course of action by the administration would be an equitable solution under the circumstances instead of subjecting the applicant and this respondent to the present uncertainty.
16. Respondents No.3, 4 and 6 to 9 have filed their separate reply and they have averred as follows:
a) Respondents No.-3, 4 and 6 to 9 were selected since they are possessing the requisite qualifications as prescribed in the R.B.E. No.120/2014 dt.29.10.2014. Qualifications prescribed for this examination is 3 years of Railway Service and either 10+2 pass with at least three subjects out 19 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench of Mathematics, Physics, Chemistry and Computer Science OR having Diploma in Civil Engineering/Civil Engineering (Transportation) are eligible. All Diplomas should have the recognition/affiliation of AICTE. The R3, R4 and R6 to R9 are possessing all the above said requisite qualifications and passed the LDCE. Based on them having the requisite qualification and passing of LDCE, the R-3, R-4, and R-6 to R-9 the Railway Department selected and appointed them to the post of JE/P.Way in level 06 against 20% LDCE Vacancies.
b) The Hon'ble Apex Court in the case of "Maharashtra Public Service Vs. Sandeep Shriram Warade, in Civil Appeal No.(S) 4597 of 2019 dated 03.05.2019 ordered as follows:
"The essential qualification 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 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 the eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with essential eligibility by an interpretive re- writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rule 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 20 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench 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".
17. Heard learned counsels for the parties and perused the pleadings made by them.
18. In the present case, the primary issue to be decided is whether the applicant in OA.No.11/2019 Shri Kalimullah is eligible to be considered for promotion post to be filled under 20% LDCE quota after appearing and qualifying in the written test held on 7.6.2018.
19. A perusal of the proceedings of the selection Committee for the post of JE/P.Way against 20% LDCE quota furnished by Respondent No.5 vide Annexure A-5 indicates that Shri Kalimullah had obtained 60 marks out of a total of 80 marks i.e. 75% and was considered as qualified based on the written examination as well as assessment of record of service. However, after publication of the written examination results, it was noticed by the respondents that the applicant Shi Kalimullah was not in possession of the prescribed educational qualification and as such he was declared as not eligible for consideration.
20. The educational qualification prescribed for the post as per the notification dated 29.10.2014 issued by Ministry of Railways was as follows:
(ii) 20% by Limited Departmental Competitive Examination (LDCE). 21
OA.No.11/2019 & 123/20121/CAT/Bangalore Bench Eligibility Criteria: Track Maintainers of all grades and Civil Engineering staff, such as USFD Staff, BlackSmith, Hammermen, Welder, Moulder, Aligner, Painter, Carpenter etc. working on P. Way Side, with 3 years of Railway Service and either 10+2 pass with at least three subjects out of Mathematics, Physics, Chemistry and Computer Science OR having Diploma in Civil Engineering/Civil Engineering (Transportation) are eligible. All Diplomas should have the recognition/affiliation of AICTE.
21. It was clearly prescribed that for the candidate to be considered as eligible the Diploma in Civil Engineering/Civil Engineering (Transportation), obtained by him should have the recognition/affiliation of AICTE. The applicant was in possession of a Diploma issued by the Institution of Permanent Way Engineer (India) Ltd. which is apparently a technical body under the auspices of Indian Railways. It offers a correspondence course of Diploma in Railway Engineering. However, it is abundantly clear that this diploma does not have affiliation of AICTE as required under the prescribed minimum education qualifications required for the post. As clarified by the respondents, the applicant had passed SSLC (Xth standard) only, on the date of the notification and, therefore, he did not fulfil the requisite education qualifications as stipulated in the notification.
22. There are a plethora of Judicial Pronouncements where it has been held that Judicial review can neither expand the ambit of the prescribed qualifications, nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as Recruiting Authority, to determine. 22
OA.No.11/2019 & 123/20121/CAT/Bangalore Bench
23. In State of Rajasthan & Ors. v. Lata Arun, dated 17 July, 2002, AIR 2002 SC 2642, the Apex Court has held that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It was held thus:
"13. From the ratio of the decisions noted above, it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority."
24. In Guru Nanak Dev University v. Sanjay Kumar Katwal & Anr., Civil Appeal No.2252 of 2006, dated 21st October, 2008, the Apex Court has reiterated as follows:
"Equivalence is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body of the university relating to equivalence should be by a specific order or resolution, duly published. The first respondent has not been able to produce any document to show that appellant university has recognized the M.A. English (OUS) of Annamalai University through distance education as equivalent to M.A. of appellant university. Thus, it has to be held that first respondent does not fulfil the eligibility criterion of the appellant university for admission to three-year law course."
25. In Civil Appeal Nos. 11853-11854 of 2018, Zahoor Ahmad Rather vs Sheikh Imtiyaz Ahmad, dated 5 December, 2018., the Apex court has categorically held as follows:
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 23 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench 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.
26. The Hon'ble Apex Court in the case of Maharashtra Public Service vs. Sandeep Shriram Warade in Civil Appeal No (S) 4597/2019 dated 03.5.2019 has reiterated as follows:
"The essential qualification 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 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 the eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with essential eligibility by an interpretive re- writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rule 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 24 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench interpret the conditions of the advertisement contrary to the plain language of the same".
27. It would not, therefore, be appropriate for this Tribunal to declare that a diploma which is admittedly not recognised by AICTE, be considered as an equivalent qualification for a post where the essential qualification prescribed is a Diploma recognized by the AICTE. The respondents have therefore, rightly rejected the candidature of the applicant Shri Kalimullah, although he had apparently qualified in the written test, on the ground that he did not possess the requisite education qualification, as prescribed on the date of notification i.e. 06.11.2017.
28. However, it is noticed that the applicant Shri Kalimullah had appeared in a subsequent selection process notified on 29.8.2019, where he has been declared as eligible for consideration for empanelment vide letter dated 04.11.2020.
29. It is also apparent from the records that the applicant, Shri Kalimallah had subsequently acquired 10+2 qualification, in the year 2019, which rendered him eligible to apply for the post in the process notified in August 2019. In the additional rejoinder filed by Shri Kalimullah, the applicant has submitted that he completed his intermediate examination conducted by Government of Andhra Pradesh, Amaravathi in June 2019. Apparently, since the applicant has now acquired 10+2 in subject Mathematics, Physics and Chemistry on 15.6.2019, hence he could now possibly be considered as eligible, under the rules, by the Respondents, for being considered for promotion to the post of JE/P.Way. The applicant has already qualified in 25 OA.No.11/2019 & 123/20121/CAT/Bangalore Bench the examination conducted in the year 2019. However, his selection has not been finalised so far on the ground that the present OA filed by him is pending consideration.
30. Keeping in view the above, both the OAs, i.e. OA.No.11/2019 and OA.No.123/2021 are disposed of with the following directions:
i) The contention of the applicant Shri Kalimullah, in OA.No.11/2019, that he is eligible to be considered for selection in the panel dated 25.10.2018, and consequently seeking to quash the selection panel dated 25.10.2018, being devoid of any merit whatsoever, is rejected.
The OA No: 11/2019 is accordingly dismissed.
ii) The OA.No.123/2021 filed by Shri M. Subramanium has merit and is allowed.
iii) As a consequence, the orders issued by Respondent No.3 vide No. B/P/608/VII/JE/P.Way-17 dated 28.1.2021, in cancelling the selection and reverting Shri Subramaniam to the feeder cadre post, is quashed with a further direction to the respondents not to disturb the position held by him in terms of the posting order No. B/P/608/VII/JE/P.Way/17 dated 05.2.2020 issued by Respondent No:
2.
iv) Selection of Respondent No.4 Shri Kalimullah, vide impugned order No. B/P.608/VII/JE/P.Way-17 dated 28.1.2021 passed by Respondent No.3 is quashed.
26
OA.No.11/2019 & 123/20121/CAT/Bangalore Bench
v) Respondents are further directed to consider the selection and appointment of the applicant Shri Kalimullah from the panel prepared after the result of the LDCE examination held on 05.8.2020 notified vide memorandum No. B/P/608/VII/JE/P.Way LDCE dated 04.11.2020, if otherwise eligible, as per law.
31. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
/vmr/