Central Administrative Tribunal - Chandigarh
Smt. Vaishali Daughter Of Sh. Shashi ... vs Union Territory Of Chandigarh Through ... on 2 February, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH ORIGINAL APPLICATION N0. 060/00233/2016 Chandigarh, this the 2ND day of February, 2017 CORAM: HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J) & HONBLE MR. UDAY KUMAR VARMA, MEMBER (A) Smt. Vaishali daughter of Sh. Shashi Bhan Bhardwaj, r/o # C-1B, Ground Floor, Parshvnath Paradise, Mohan Nagar, Gaziabad (U.P.) (Group-C) age 37 years. .APPLICANT (Argued by: Shri Ravi Verma , Advocate) VERSUS 1. Union Territory of Chandigarh through its Secretary, Department of Education, Mini Secretariat, Sector 9, Chandigarh. 2. The Director Public Instructions (School), Chandigarh Administration, 1st Floor, Additional Deluxe Building, Sector 9, Chandigarh. .RESPONDENTS (By Advocate: Shri Arvind Moudgil ORDER (Oral)
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
2. Applicant, Smt. Vaishali has filed the instant Original Application, (OA) feeling aggrieved by the impugned action of respondents dated 16.09.2015 (Annexure A-5), whereby she has been held to be ineligible for appointment to the post of TGT-English, as well as impugned letter dated 27.01.2016 (Annexure A-9), whereby her legal notice dated 16.11.2015 has been rejected.
3. The brief facts, which need necessary mention for the limited purpose of deciding the core controversy involved in the instant O.A. is that the respondent no. 2, the Director Public Instructions (School), Chandigarh Administration advertised 46 posts of Masters/Mistresses (TGT) in the subject of English and out of which 23 posts were meant for General Category vide (Annexure A-2). The requisite prescribed Educational Qualifications for the post of TGT English as per Recruitment Rules of Education Department, Chandigarh in substance are as under:
English:
i) Graduate or its equivalent from a recognized University with English as an Elective subject with at least 50% marks.
ii) Bachelor of Education Degree recognized by NCTE with at least 50% marks in aggregate or its equivalent with English as teaching subject.
iii) Pass in Teacher Eligibility Test (TET) conducted by the CBSE New Delhi in accordance with the Guidelines framed by the NCTET is compulsory.
4. The case set by the applicant is that she fulfils all the requisite essential qualifications for the post of TGT (English) as well as having higher qualifications as per advertisement notice (Annexure A-2). She passed qualification of B.A. in English as an Elective subject with 69.5% marks, M.A. (English) with 69.7% marks, B.Ed. with English as teaching subject with 67% marks, M.Ed. with 64.7% marks, M. Phil,. (English) 58.6% marks and also passed CTET with 62.6% marks. The respondent department conducted the written test for the post in question, in which she appeared and secured 154 marks out of 200 marks amongst 69 candidates who have qualified the written test. The marks obtained by her is the highest in the written test. However, after declaration of result only 23 candidates have been given appointment as TGT English by the department in September, 2015 including candidates who are junior to her in the merit list. On 16.09.2015 vide (Annexure A-5), the respondents uploaded the list of remaining 23 candidates on its web-site on 30.09.2015 (Annexure A-6) including the applicant wherein it has been indicated against her name that she has not passed English as an Elective subject in Graduation. Consequently an opportunity was given to her to prove her eligibility . She filed reply dated 6.10.2015 (Annexure A-7) stating that she fulfills the requisite eligibility condition as she has passed her Graduation with English as an elective subject from MD University, Rohtak in April 1998 and secured 69.75% marks. When no positive response was received from respondent, she served legal notice dated 16.11.2015 (Annexure A-8) through her counsel, but same was also rejected vide impugned letter dated 27.1.2916 (Annexure A-9). Hence the present O.A.
5. In support of her contentions, the applicant has placed reliance on the order dated 21.10.2015 passed by a coordinate Bench of this Tribunal in T.A. No. 060/00016/2015 titled Ambika Vs. Union Territory of Chandigarh & Ors. (Annexure A-11), which was allowed while place reliance on judgment dated 11.09.2001 of Delhi High Court in LPA NO. 485 of 1999 titled Mrs. Manju Pal Vs. Govt. of National Capital Territory of Delhi.
6. The respondents have refuted the claim of applicant in their written statement. They while reiterating the validity of the impugned action and placing reliance on relevant Recruitment Rules of 1991 which were amended from time to time and citing various judgments pleaded that the instant O.A. deserves to be dismissed. It is further stated that the order passed by this Tribunal in the case of Ambika Vs. UOI & Ors. (Supra) as relied upon by the applicant is under process of challenge in judicial review in the Honble Punjab & Haryana High Court and the applicant in that O.A. has not been appointed as TGT English as she could not score qualifying marks in both the papers separately.
7. We have heard the learned counsel for the parties, gone through the pleadings available on record, and given our thoughtful consideration to the whole matter.
8. Notwithstanding the fact that the applicant also holds a Higher Degree namely Masters Degree in English, Masters Degree in Education and also disregarding the fact that she is the highest scorer in the written examination, the key issue that needs adjudication is whether in the light of clarification dated 17.06.2015 given by Maharshi Dayanand University, Rohtak, that English (compulsory) is equivalent to English (Elective) for those students who have passed Bachelor of Arts prior to 2011-12 session from this University, the applicant could be deemed as having the essential qualification of a Bachelor Degree in English as an elective subject? We have carefully looked at the mark sheet and clarification given by Maharshi Dayanand University, Rohtak. The mark sheet, which has been appended as Annexure A-1 (page 51) of the paper book, mentions English as the first subject on top of list of subjects, neither compulsory nor elective is mentioned after English. The second subject on the mark sheet is Hindi / Punjabi/Sanskrit/Urdu (compulsory). Down below there are other subjects without any mention, whether they are elective or compulsory. A normal inference for perusing this mark sheet will be that only Hindi / Punjabi / Sanskrit / Urdu is a compulsory subject and the rest of the other subjects are not compulsory. The mark sheet, therefore, clearly indicates that the subject of English as far as the applicant is concerned was not compulsory. If this fact is seen in harmony with the clarification given by the University, it becomes abundantly clear that the University, which is the Institution awarding the Graduation Degree to the applicant, clearly maintains that the English mentioned in the mark sheet should be read as English (Elective).
9. The detailed reply of the respondents dated 16.09.2013 to the representation made by the applicant to reconsider her candidature mentions that they had also sought clarification from Kurukshetra University and Maharshi Dayanand University, Rohtak. They have recorded the clarification given by Maharshi Dayanand University, Rohtak. As discussed above, the clarification from the Dayanand University, reads as under:-
Certified that English is a compulsory subject in all the three years of B.A. (General) of Kurukshetra University,* having 100 marks in each year. The student takes courses in literature and grammar during this course BA (General) in English subject. For all practical purpose, the compulsory English subject may be treated as equivalent to English (Elective).
In terms of decision taken by the Academic Council vide Reso. No.8 of its meeting held on 11.07.2011, it is informed that English (Compulsory) is equivalent to English (Elective) for those students who have passed Bachelor of Arts prior to 2011-12 session from this University. *( should be Maharishi Dayanand University, Rohtak - added by us) The clarification from Kurukshetra University, reads as under:-
There is no provision of English Elective and there is provision of English compulsory only in the syllabus of Bachelor of Arts of Kurukshetra University, Kurukshetra. The English compulsory is taught in all the affiliated colleges of Kurukshetra University at under graduate level. The respondents have further discussed this issue in paragraph 6, which is reproduced below:-
6. A Committee consisting of officers of Education Department, Chandigarh Administration and faculty from Govt. College for Girls, Chandigarh, College of Education, Chandigarh and from Govt. Model Sr. Secondary Schools, Chandigarh discussed the issue regarding eligibility of candidates for the post of TGT-English and recommended as under:-
(i) At Graduation level, most of the universities offer compulsory subject and Elective subject as per their scheme of studies. Compulsory subjects are those subjects which are mandatory for every student to clear / pass that particular subject. Whereas, Elective subjects are chosen / opted by the candidates keeping in view career opportunities, facilities available aptitude and interest. Elective subjects are chosen from the list of subjects and passing of those particular subjects is also compulsory.
(ii) Languages studied as compulsory subject target general capability and language as an Elective / Opted subject focuses on specialization.
(iii) English as a compulsory subject cannot be equated with English Elective or Literature or Honours or the English studied as additional/optional paper.
On the basis of above discussion, the committee is of the opinion that candidates who have passed English compulsory cannot be considered eligible for the post of TGT-English as per the provision of recruitment rules. Clarification given by the universities that English compulsory may be treated as English Elective upto a particular year is not convincing. As such, the candidates who have passed English as an Elective subject or English Honours or English Literature or Functional English Additional / optional paper of English by opting / choosing can be considered eligible for the post of TGT-English.
10. From the above, it can be concluded that the so called committee disregarded the view of Maharshi Dayanand University, Rohtak, that English mentioned in the applicants mark sheet should be treated as English Elective. It is somewhat surprising. Essentially, because the judgment whether a subject is a compulsory or elective should ordinarily lie with the Institution awarding that degree. It is true that in many Universities, English may be offered as a compulsory subject, but it cannot be said that every University across the Board does the same. In our view, given the clarification of the University, which is the Institution awarding the degree of graduation and who are in the best position to certify whether the course of English pursued by the applicant is compulsory or Elective, the committee, in our view, has earned in disregarding this clarification. In the same order, the Director Public Instructions (DPI) mentions candidates who have passed English as an Elective subject or English Honours or English Literature or Functional English or Additional / optional paper of English by opting / choosing are to be considered eligible for the post of TGT-English, keeping in view requisite provisions of Chandigarh Education Service (School Cadre) Recruitment Rules, 1991 as amended from time to time.
11. Obviously, the respondents have been making exception to this stand that unless the mark sheet mentions English Elective in the Graduation Degree of the candidates, they will be considered ineligible for selection. Through a subjective process, the respondents have decided that English Honours or English Literature or Additional / optional paper of English are to be eligible for the post of TGT-English. In our view, the respondents should have also considered a category like that of the applicant, where the mark sheet does not specify whether English as a subject taken by the candidate is compulsory or elective, but the degree awarding Institution certifies that the subject English taken by the candidate is elective.
12. In the course of arguments, learned counsel for the respondents stated that principle of equivalence cannot be applied as far as essential qualification is concerned. However, we find that such an argument stands controverted by the very wording of the advertisement, where they have invoked the principle of equivalence as far as the degree as a whole is concerned, because they have sought applications from those candidates also who hold a degree equivalent to graduation. They have also invoked it while considering English (Hons) as equivalent to English Elective.
13. Given this discussion, it is our considered view that injustice will be meted out to the applicant if her eligibility is disallowed just because her mark sheet makes it open for interpretation whether the subject of English studied by her is an Elective subject, or a compulsory subject even though the concerned University certifies that it is indeed Elective English.
14. In some other case of similar nature, it has been held that if a candidate also holds a Masters Degree in English and even when in graduation level she does not have an Elective English paper, the eligibility of such candidates should be considered. In this case, the applicant not only holds a Masters Degree in English in Masters Degree in Education, but incidentally has also obtained highest marks among all the candidates in the written examination. While settling the issue for adjudication we have disregarded these facts. These, however, do give us a better understanding and perspective of the case.
15. Given the above discussion, we are of this clear view that the applicant deserves to be considered as an eligible candidate for the purposes of selection as TGT-English. The respondents shall, therefore, consider her case by treating the subject of English as an Elective subject in her graduation, and if otherwise found to be suitable, give her appropriate appointment. There shall be no order as to costs.
(UDAY KUMAR VARMA) MEMBER (A) (JUSTICE M.S. SULLAR) MEMBER (J) Dated: 02.02.2017 `SK 1 (OA No. 060/00233/2016 )