Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1277 (CAL)

Suman Kumar Shah v. UNION OF INDIA

2011-09-14

ASHIM KUMAR BANERJEE, MRINAL KANTI CHAUDHURI

body2011
Judgment : ASHIM KUMAR BANERJEE.J Metro Railway advertised for the post of Rajbhasa Assistant Grade-II. The post required Master Degree in Hindi with English as a main subject at Degree Level or Master Degree in English with Hindi as a main subject at Degree Level or Master Degree in any subject with Hindi and English as main subjects at Degree Level or Bachelor Degree with Hindi and English as main subjects at Degree Level. If we consider the four alternatives we would find that the post would require Hindi and English as main subject at the Graduation Level whereas the petitioner before us was having English and Hindi (Communication Skill) at the Degree Level with honors in Geography. He was also having post graduate qualification in Geography. He applied for the post. He participated in the selection process. He was declared successful. However, he was not given appointment as the authority doubted his eligibility as to qualification. The Deputy Registrar General, Punjab University, Chandigarh, where he studied, clarified to the following extent :- “It is to inform you that the candidates joining Bachelor of Arts (B.A.) Course were required to offer the subjects of English (Communication Skill) and Hindi/Punjabi (Communication Skill) as Main Compulsory Subjects carrying 100 marks each along with other three elective subjects carrying 200 marks each in all the three years of the said course The candidates were classified into division on the basis of marks obtained in the Main Compulsory subjects and elective subjects.” Metro Railway, however, was not satisfied with such clarification. The matter was referred to the Railway Board. The Railway Board, ultimately, cancelled the appointment holding that he did not have the prescribed qualification as per the Employment Notice. Being aggrieved, the petitioner approached the Tribunal. The Tribunal observed that the case was considered by a body of expert being the Railway Recruitment Board. They ultimately came into conclusion that the applicant did not meet the requisite qualification as per the Employment Notice. The Tribunal could not sit on appeal over the views of the body of expert. The Tribunal dismissed the application. Hence, this petition before us. Mr. Satadal Chatterjee, learned counsel appearing for the petitioner heavily relied on the clarification made by the Deputy Registrar, Punjab University quoted above. According to Mr. The Tribunal could not sit on appeal over the views of the body of expert. The Tribunal dismissed the application. Hence, this petition before us. Mr. Satadal Chatterjee, learned counsel appearing for the petitioner heavily relied on the clarification made by the Deputy Registrar, Punjab University quoted above. According to Mr. Chatterjee, the University having the expertise on the issue, clarified that English and Hindi were considered to be the main compulsory subjects. He also relied upon the certificate issued by the Principal of the college where he studied, to the effect that English was taught as a compulsory subject as a graduation level. Such clarification would meet the requirement of the Metro Railway and they were not entitled to refuse appointment. Mr. Chatterjee distinguished the decision in the case of State of Andhra Pradesh & Another –VS- Sadanandam and Others reported in All India Reporter 1989 Supreme Court Page-2060 and contended that the said decision would have no application in the instant case. Per contra, Mr. Ashok Chakraborty, learned senior advocate being assisted by Ms. Chaitali Bhattacharya appearing for the Metro Railway contended that the employer would have the last say as to whether the candidate was having the eligible qualification or not. The petitioner did not have English and Hindi as main subject. Communicative English or communicative Hindi could not be said to be English or Hindi as a language subject as understood by the Railway. The Railway Recruitment Board considered the issue and ultimately held that the petitioner did not have the requisite qualification for the post as per the Employment Notice. Such decision was not amenable to judicial review. To support his contention he relied on the decision in the case of J. Ranga Swamy – VS- Government of Andhra Pradesh reported in 1990 Volume-I Supreme Court Cases Page-288. In an almost identical situation the Apex Court upheld the decision of the Andhra Pradesh High Court which upset the order of the Tribunal directing regularization of the petitioner in a post considering his additional qualification which was called in question. The Apex Court observed that the petitioner admittedly did not have a doctorate in Nuclear Physics, his claim based on diploma in Radiological Physics was not tenable. The Apex Court observed “it is not for the Court to consider the relevance of qualifications prescribed for various posts. The Apex Court observed that the petitioner admittedly did not have a doctorate in Nuclear Physics, his claim based on diploma in Radiological Physics was not tenable. The Apex Court observed “it is not for the Court to consider the relevance of qualifications prescribed for various posts. …….it is not for us to assess the comparative merits of such a doctorate and BARC diploma held by the petitioner and decide or direct what should be the qualifications to be prescribed for the post in question.” Relying on the said decision, Mr. chakraborty contended that it was exclusively within the domain of the employer to decide as to whether the petitioner had requisite qualification or not. Mr. Chakraborty on instruction further contended that he was never selected for the post. He was kept in the waiting list. The law governing the field is clear and unambiguous on the subject. Whether a candidate is having eligible qualification for the post is within the exclusive domain of the executives. The employer is entitled to choose his employee. While choosing, the employer is within his right to find out whether the candidate would be suitable for the post having suitable qualification for the same. The Court of Law is not entitled to interfere on that score particularly when it does not have the necessary expertise to do so. An Employment Notice has prescribed a particular qualification. If a candidate conforms to the said qualification he is automatically entitled to be considered for the post. If someone comes with another qualification and not the qualification mentioned in the Employment Notice he would become vulnerable. If he claims that such qualification is similar and identical to the required one his claim can only be judged by the employer himself. It would not come within the scope of judicial review. The Court of law can only interfere in case the petitioner is able to demonstrate that he was not fairly considered and the decision making process was vitiated by illegality, arbitrariness and discriminatory act of the public employer. In the instant case the petitioner did not allege any mala fide or arbitrariness. He claimed that his qualification did conform to the requirement. Requirement of Hindi and English being the main subject at the degree level would suffice by his qualification with Hindi and English (communication skill) at the degree level. In the instant case the petitioner did not allege any mala fide or arbitrariness. He claimed that his qualification did conform to the requirement. Requirement of Hindi and English being the main subject at the degree level would suffice by his qualification with Hindi and English (communication skill) at the degree level. In short, he wants us to hold that Hindi and English (communication skill) are identical to Hindi and English as main subject. He asks us to believe the Deputy Registrar, Punjab University who at the instance of the petitioner certified so. We express our inability to accede to the request of the petitioner as we frankly admit that we do not have the expertise to decide so. The Metro Railway is a public employer. They consulted Railway Recruitment Board in this regard. They did not reject the petitioner at the threshold as would be apparent from their conduct. They ultimately relied on the decision of the Railway Recruitment Board on the subject who acted on behalf of the employer having authorized to do so. Such action, in our view, is not amenable to judicial review. The application fails and is hereby dismissed. There would be no order as to costs.