Central Administrative Tribunal - Jodhpur
Hema Ram vs Kendriya Vidyalaya Sanghthan on 5 April, 2019
1
OA No. 290/380/2015 with MA No. 290/34/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
ORIGINAL APPLICATION NO. 290/380/2015
with
MISC. APPLICATION NO. 290/34/2016
Order Reserved on: 06.12.2018
DATE OF ORDER: 05.04.2019
CORAM
HON'BLE MR. SURESH KUMAR MONGA, JUDICIAL MEMBER
HON'BLE MR. A. MUKHOPADHAYA, ADMINISTRATIVE MEMBER
HON'BLE SMT. HINA P. SHAH, JUDICIAL MEMBER
1. Hema Ram S/o Shri Mangi Lal, Aged about 23 years, R/o-
Old Bus Stand, Sayla, District- Jallore, (Office Address:-
Working as Postal Assistant at Jodhpur HO).
2. Hari Kishan S/o Shri Parsa Ram Meghwal, Aged about 29
years, R/o- Vill+Po- Narsar, via- Bhopalgarh, District
Jodhpur (Office Address:- Working as Postal Assistant at
Gotan Sub Post Office).
3. Nema Ram S/o - Shri Sangram Ram Beda, Aged about 38
years, R/o- Vill+Po- Kurdayhan, District - Nagaur (Office
Address:- Working as Postal Assistant Jodhpur HO).
....Applicants
Mr. S.P. Singh, counsel for applicants.
VERSUS
1. Union of India, through the Commissioner, Kendriya
vidhyalaua Sansthan, HQ.18 Industrial Area, Saheed Jeet
Singh Marg, New Delhi-110016
2. The Addl. Commissioner (Admn), Kendriya vidhyalaya
Sansthan, HQ.18 Institutional Area, Saheed Jeet Singh
Marg, New Delhi-110016
3. The Deputy Commissioner (Admn), Kendriya vidhyalaya
Sansthan, HQ.18 Institutional Area, Saheed Jeet Singh
Marg, New Delhi-110016
....Respondents
Mr. Avinash Acharya, counsel for respondents.
2
OA No. 290/380/2015 with MA No. 290/34/2016
ORDER
Per: SURESH KUMAR MONGA, JUDICIAL MEMBER Whether this Tribunal can grant a declaration to the effect that two different posts in different cadres are equivalent and, consequently, a candidate can be declared eligible to compete for a higher post contrary to recruitment rules prescribing a particular eligibility qualification and experience? This is the primary question that arises for consideration in this case, which has been placed before this Bench pursuant to a reference order passed on 15th September, 2017.
2. The factual matrix of this case lies within a very narrow compass. The applicants are presently working as Postal Assistants in the Department of Posts and they are in the pay scale of Rs. 5200-20200 with grade pay of Rs. 2400. They have rendered more than 04 years of service. Pursuant to an advertisement No. 08 (Annexure A/4) issued by the Kendriya Vidyalaya Sangathan (hereinafter referred to as KVS), the applicants applied for the post of Assistant in the pay scale of Rs. 9800-34800 with grade pay of Rs. 4200. In terms of the recruitment rules, the qualifications, which are prescribed for the post of Assistant in the advertisement, are as under: -
"Essential Qualification:
i. Graduate with 03 years experience as UDC in Central/State Govt./Autonomous Bodies/Public Sector Undertakings.
Desirable: Knowledge of Computer Applications."
The selection for the said post was to be made by conducting a written examination. The applicants appeared in the said written examination. Their grievance is that several 3 OA No. 290/380/2015 with MA No. 290/34/2016 candidates, who have secured less marks in the written examination, have been granted appointments on the post of Assistant. Whereas, they have been denied such appointments, though they have secured more marks in the written examination than the selected candidates. Aggrieved by the said action of the respondents, the applicants have invoked the jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 by way of instant Original Application seeking therein the following relief: -
"(a) That by writ, order or direction the respondents may kindly be directed to give offer of appointment to the applicants in accordance with the merit.
(b) That by writ order or direction the respondents may kindly be directed to treat Postal Assistant, equivalent to UDC for candidature to the post of ASSISTANT in KVS and the same may be taken into consideration.
(c). That Leave may be granted to the applicants to file this Original Application jointly under the Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987 as because the grievances of the applicants are identical and all are similarly circumstances person.
(d) That the costs of this application may be awarded to the applicant."
3. In the written statement filed by the respondents, it has been pleaded that the essential qualifications for the post of Assistant in KVS is graduate with 03 years' experience as UDC in Central/State Govt./Autonomous Bodies/Public Sector Undertakings. It is stated that the applicants are not working as Upper Division Clerks (UDCs). They are Postal Assistants working with the Department of Posts. While submitting their on-line applications, the applicants had wrongly indicated that they are working as UDCs. Since they are not having the 4 OA No. 290/380/2015 with MA No. 290/34/2016 requisite 03 years' experience while working as UDC in the pay band of Rs. 5200-20200 with Grade Pay of Rs. 2400 in Central/State Govt./Autonomous Bodies/Public Sector Undertakings, therefore, their candidatures have been rightly rejected by the respondents.
4. One of the candidates, namely Akulkumar, like applicants herein, who is also working as Postal Assistant in the Department of Posts had submitted his application with the respondents and his candidature was rejected by the respondents. He preferred Original Application No. 350/2015 before the Ahmedabad Bench of this Tribunal, which came to be dismissed on 31st March, 2017. When the present case was taken up for hearing on 15th September, 2017, learned counsel for the respondents placed reliance upon the judgment in the matter of Akulkumar vs. Union of India & Ors. (OA No. 350/2015) and submitted that the present Original Application is covered by said judgment in all fours and, therefore, the same deserves to be dismissed.
5. However, learned counsel for the applicants had submitted that in response to an RTI query, the Department of Posts vide letter dated 06.10.2015 (Annexure A/12) have clarified that the Postal Assistant / Sorting Assistant and Postal Assistant (Technical), who are in the pay band of Rs. 5200-20200 with grade pay of Rs. 2400 are equivalent to the post of UDC in the Government as they all are in the same pay band with same grade pay. Learned counsel for the applicants submitted that since the Ahmedabad Bench of this Tribunal has not considered the said aspect of the matter, therefore, the judgment rendered 5 OA No. 290/380/2015 with MA No. 290/34/2016 in Akulkumar's case (supra) cannot be relied upon by the respondents in order to defeat the cause of the applicants.
6. While keeping in view the clarification issued by the Department of Posts vide letter dated 06.10.2015 (Annexure A/12) and noticing the fact that the same was not considered by the Ahmedabad Bench of this Tribunal while rendering the judgment in Akulkumar's case (supra), reference was made to a Larger Bench vide order dated 15th September, 2017. This is how the present Original Application has been placed before us.
7. We have heard learned counsels for the parties.
8. Shri S.P. Singh, learned counsel for the applicants submitted that in response to an RTI query, the Department of Posts vide letter dated 06.10.2015 (Annexure A/12) have clarified that the Postal Assistant / Sorting Assistant and Postal Assistant (Technical), who are in the pay band of Rs. 5200-20200 with grade pay of Rs. 2400 are equivalent to the post of UDC in the Government as they all are in the same pay band with same grade pay. Learned counsel argued that the applicants are having the same status as of Upper Division Clerk in the Government as they are in the same pay band with same grade pay. Learned counsel further argued that the applicants were within their rights while applying for the post of Assistant pursuant to advertisement No. 08, dated 25.08.2014 (Annexure A/4), as they possess the requisite qualification as stipulated in the said advertisement. Shri Singh while drawing our attention towards letter dated 17th November, 2015 (Annexure A/13) submitted that the nature of duties of Postal Assistants are similar to that of the Upper Division Clerks and, therefore, the 6 OA No. 290/380/2015 with MA No. 290/34/2016 applicants, who are working as Postal Assistants cannot be treated differently and, thus, the rejection of their candidature for the post of Assistant by respondents is arbitrary and the same cannot be sustained. He further argued that one Shri Nema Ram, who had applied for the post of Assistant pursuant to an earlier advertisement issued by the respondents for the vacancies of the year 2011-12, was issued offer of appointment, counting working experience of 03 years on the post of Postal Assistant. Shri Singh, learned counsel for the applicants, thus, submitted that the applicants have been discriminated by the respondents.
9. On the other hand, Shri Avinash Acharya, learned counsel for the respondents submitted that though the applicants are possessing the requisite academic qualification but are not having the requisite experience as laid down in the advertisement. They are required to have 03 years' experience as UDC in Central/State Govt./Autonomous Bodies/Public Sector Undertakings. He drew our attention towards important instructions to candidates contained in the advertisement No. 08 (Annexure R/1) wherein it has been specifically laid down that the Upper Division Clerk in the pay band of Rs. 5200-20200 with grade pay of Rs. 2400 having 03 years regular service in Central/State Govt./Autonomous Body of Central/State Govt. and Public Sector Undertakings are eligible for the post of Assistant in KVS. Since the applicants have not worked as UDCs in the Central/State Govt./Autonomous Body of Central/State Govt. and Public Sector Undertakings, therefore, their candidatures have been rightly rejected by the respondents. Learned counsel, while referring the reply filed by the 7 OA No. 290/380/2015 with MA No. 290/34/2016 respondents, submitted that the documents received from the candidates were scrutinized by the respondents and it was observed that many candidates had applied through online application forms mentioning therein that they are working as Upper Division Clerks in the pay band of Rs. 5200-20200 with grade pay of Rs. 2400. Whereas, as per the records received from their departments/organizations, they were found working as Postal/Sorting/Office Assistant of Postal Department, Head Constable (M)/ASI (M) of PARA Military Forces i.e. CRPF, BSF, ITBP, CISF, SSB etc., Hawaldar Clerk in Army, Sergeant (AFS), PO (Writer) Indian Navy, Social Security Assistant of EFPO, Assistant/SWO of Nationalized Bank and Assistant Grade-III of FCI. Since in the advertisement issued by the respondents, there was no ambiguity about the requisite qualification with regard to experience on a post of Upper Division Clerk, therefore, the candidatures of all those candidates, who were in the same pay band with same grade pay working on different posts in different departments/organizations, were rejected by the respondents. Learned counsel, thus, submitted that merely the applicants are in the same pay band with same grade pay as of an Upper Division Clerk working in the Government, cannot be allowed to maintain their candidature for the post of Assistant in KVS. Shri Acharya, thus, submitted that any selection / appointment made in disregard to the qualifications mentioned in the advertisement amounts to a fraud on public. In order to support his said contention, Shri Acharya relied upon judgments of the Hon'ble Supreme Court rendered in the case of Bedanga Talukdar vs. Saifudaullah Khan & Ors., (2011) 2 SCC (L&S) 635 : (2011) 12 SCC 85 and District Collector & Chairman, 8 OA No. 290/380/2015 with MA No. 290/34/2016 Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr. Vs. M. Tripura Sundari Devi, (1990) 3 SCC 655. Learned counsel further submitted that while taking into consideration the said two judgments of the Hon'ble Supreme Court, the Ahmedabad Bench of this Tribunal has rightly arrived at a conclusion in Akulkumar's case (supra) that the Postal Assistant though is in the same pay band with same grade pay as of an Upper Division Clerk, cannot be considered to be eligible for the post of Assistant in K.V.S. Shri Acharya, learned counsel, further submitted that no fallacy in the said judgment can be found merely on the basis of an information supplied by the Public Information Officer vide letter dated 06.10.2015 (Annexure A/12) with regard to same pay band with same grade pay of the Postal Assistant in Department of Posts. Shri Acharya, learned counsel for the respondents further submitted that the KVS is an autonomous body and its rules are framed by its own Board of Governors and, therefore, CCS Rules and letter of DG Posts as relied upon by the applicants have no relevance in this case.
10. The vexed question of equivalence of status of two different posts on the basis of equivalent pay scales and the nature of respective duties on those posts, has confronted the Courts for a long time. No person has a right of appointment but has a right only to be considered against the vacancies if he fulfills the eligibility criteria prescribed under the recruitment rules. Laying down eligibility for a post, falls within the exclusive domain of the legislature / rule making authority and cannot be a subject matter of judicial review unless found to be arbitrary, unreasonable or has been fixed / prescribed without keeping in 9 OA No. 290/380/2015 with MA No. 290/34/2016 mind the nature of services for which the appointments are to be made or it has no rational relation to the object sought to be achieved by the Statute. It is always permissible for the Government / rule making authority to prescribe appropriate qualifications / eligibility in the matter of appointments / promotions to different posts. Even if a person joins the service, he merely acquires a status and the rights / obligations thereto are not to be determined by the consent of the parties but by the Statute or statutory rules, which may be framed and altered unilaterally by the Government / rule making authority. Reference in this regard may be made to a judgment of the Hon'ble Supreme Court in the matter of State of Jammu & Kashmir vs. Shiv Ram Sharma & Ors., AIR 1999 SC 2012. Paragraph 6 of the said judgment reads thus: -
"6. The law is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The case put forth on behalf of the respondents is that when they joined the service the requirement of passing the matriculation was not needed and while they are in service such prescription has been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those rules framed by the Government in that behalf would always be favourable to them. In Roshan Lal Tandon v. Union of India, (1968) 1 SCR 185 : (AIR 1967 SC 1889), it was held by this Court that once appointed an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by consent of parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. ..........."
11. The eligibility criteria should not be arbitrary or unreasonable and if it is found so, it becomes liable to be quashed as it falls within the mischief of Article 14 of the Constitution of India, which provides for equality before law and equal protection of 10 OA No. 290/380/2015 with MA No. 290/34/2016 law. The scope of Articles 14 and 16 of the Constitution has been widened by judicial interpretation to mean not only the right to be not discriminated but also protection of any arbitrary or irrational act of the State. Arbitrariness is an anathema to rule of equality.
12. The question does arise as to whether it is within the domain of this Tribunal to determine the equivalence of status of two different posts in different cadres on the basis of equal pay scale and the respective nature of duties on those posts. Admittedly, the post of a Postal Assistant in the Department of Posts and the post of an Upper Division Clerk in the Government are in the same pay band with same grade pay and on the basis of said equality, Shri Singh, learned counsel for the applicants argued that the status of two posts is equal and, therefore, the applicants should be treated eligible for the post of Assistant in K.V.S. We are not inclined to accept the said argument of learned counsel for the applicants as the same would lead to departure from the Statutory rules wherein the essential qualification for the post of Assistant has been laid down as graduate with 03 years' experience as UDC in Central/State Govt./Autonomous Bodies/Public Sector Undertakings. Though the applicants are in the same pay band with same grade pay and having the same status of Upper Division Clerk in terms of the same pay band and same grade pay but that does not mean that the experience acquired by the applicants as Postal Assistant is also equivalent to the experience earned on a post of Upper Division Clerk.
11OA No. 290/380/2015 with MA No. 290/34/2016
13. Equally untenable is the argument of learned counsel for the applicants, while relying upon Annexure A/13 letter dated 17th November, 2015, when he submitted that the nature of duties of Postal Assistant are similar to that of Upper Division Clerk in the Government.
14. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon assertions made by the parties in their respective pleadings. The equivalence of posts or equivalence of pay or the nature of duties or the similarity of nature of duties must be left to the Executive Government / rule making authority. It must be determined by the expert bodies only. They would be the best judge to evaluate the nature of duties and to equate the status of two posts. If there is any such determination by an expert Body or Commission or a Committee, the Court should normally accept it. Reference may be made in this regard to State of U.P. and Others vs. J.P. Chaurasia and others, 1989 SCC (L&S) 71) : (1989) 1 SCC 121.
15. Here in the case in hand, the recruitment rules have prescribed the essential qualification for the post of Assistant as graduate with 03 years' experience as UDC in Central/State Govt./Autonomous Bodies/Public Sector Undertakings. While issuing the advertisement, apart from depicting these qualifications, it has further been clarified and insisted upon by the respondents in the said advertisement under the heading of important instructions to the candidates that 'UDC in the pay 12 OA No. 290/380/2015 with MA No. 290/34/2016 band of Rs. 5200-20200 with grade pay of Rs. 2400 having 3 years regular service in Central/State Govt./Autonomous Body of Central/State Govt. and Public Sector Undertaking are eligible for the post of Assistant in KVS'. Looking towards those unequivocal terms laid down in the advertisement in consonance with the recruitment rules, nobody can be permitted to take departure and to lay a claim on the post of Assistant merely on the basis that he is in the same pay band with same grade pay as is being granted to Upper Division Clerk in the Government. The experience earned on a different post i.e. Postal Assistant cannot, in any manner, be declared to be equivalent by this Tribunal to the post of Upper Division Clerk in the Government. It is an exercise which can only be undertaken by an expert body or by the rule making authority after taking into consideration various factors.
16. The argument of learned counsel for the applicants that since the applicants are in the same pay band with same grade pay and, therefore, they should be considered equivalent to the post of Upper Division Clerk in the Government and their status should also be considered equivalent to the post of Upper Division Clerk in the Government ignoring the factum of experience earned by them on different posts, can hardly be accepted because it is nothing else but to accept that all Dogs and Cats are mammals, therefore, all Cats are Dogs (see Constitutional Law of India by H.M. Seervai, 4th Edition (1), page 439 paragraph 9.9).
13OA No. 290/380/2015 with MA No. 290/34/2016
17. The argument of learned counsel for the applicants that in view of the information supplied by Department of Posts under Right to Information Act, 2005 vide letter dated 06th October, 2015 (Annexure A/12), the status of two posts has been declared equivalent in terms of the pay band of Rs. 5200-20200 with grade pay of Rs. 2400 and, therefore, the action of the respondents while rejecting the applicants' candidature is illegal, being highly misplaced, does not find favour with us. A perusal of letter dated 06th October, 2015 (Annexure A/12) reveals that the Department of Posts, while issuing said letter, simply mentioned that posts of Postal Assistant/Sorting Assistant and Technical Postal Assistant in the Department of Posts are in pay band of Rs. 5200-20200 with grade pay of Rs. 2400. The said letter nowhere discloses this fact that the post of Postal Assistant was ever equated with the post of Upper Division Clerk in the Government.
18. We are also not inclined to accept the argument of learned counsel for the applicants when he alleges discrimination by referring one Nema Ram's case, who was given offer of appointment by the respondents on the post of Assistant as the Tribunal cannot be a party to perpetuate a practice adopted by the respondents contrary to the recruitment rules.
19. In our considered view, the appointing authority cannot deviate from the provisions of recruitment rules and is bound to strictly adhere with the requisite qualifications and experience for the post while making recruitment.
14OA No. 290/380/2015 with MA No. 290/34/2016
20. It has been categorically held by the Hon'ble Supreme Court in M. Tripura Sundari Devi's case (supra) that appointment made in disregard to the terms set up in the advertisement cannot be permitted since it is a matter not confined only between the appointing authority and appointee concerned, therefore, it amounts to a fraud on public. The observations made by the Hon'ble Supreme Court in the said judgment reads, thus:-
"6. ..........when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. ..........."
21. In Saifudaullah Khan's case (supra), the Hon'ble Supreme Court has held that the selection process has to be conducted strictly in accordance with the stipulated selection procedure and when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained and there cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. The operative portion of the said judgment as contained in paras 29 and 30 reads, thus: -
"29. ......... In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the 15 OA No. 290/380/2015 with MA No. 290/34/2016 stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.
30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of Respondent 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India."
22. Rightly, while relying upon the principles laid down by the Hon'ble Supreme Court in the aforesaid two judgments, the Ahmedabad Bench of this Tribunal has declined to interfere with the select list impugned in the Akulkumar's case (supra).
23. In the case in hand, we find that in the advertisement No. 08 (Annexure R/1), the essential qualifications for the post of Assistant have been unequivocally laid down as graduate with 03 years' experience as UDC in Central/State Govt./Autonomous Bodies/Public Sector Undertakings and we find that those qualifications are in consonance with the recruitment rules. We do not find any power with the appointing authority to relax the said recruitment rules and nothing can be read beyond, which is not enshrined in the rules.
16OA No. 290/380/2015 with MA No. 290/34/2016
24. In view of the above, it is held that this Tribunal cannot declare the post of Postal Assistant as equivalent to Upper Division Clerk (UDC) for considering the candidature to the post of Assistant in KVS.
25. In the present Original Application since the applicants do not possess 03 years' experience as UDC in Central/State Govt./Autonomous Bodies/Public Sector Undertakings, therefore, we do not find any infirmity in the action of the respondents while rejecting their candidature for the post of Assistant in KVS as the respondents acted in conformity with the recruitment rules.
26. Consequently, there is no merit in the present Original Application, which is hereby dismissed.
27. In view of the order passed in the Original Application, the Misc. Application No. 290/34/2016, for vacation of interim order, is rendered infructuous and the same is hereby disposed of accordingly.
28. The parties are, however, left to bear their own costs. (HINA P. SHAH) (A. MUKHOPADHAYA) (SURESH KUMAR MONGA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER JUDICIAL MEMBER Kumawat