Ansarali K. C. , S/o. C. P. Hamza v. Administrator Union of Territory of Lakshadweep, Kavaratti Union of Territory of Lakshadweep
2013-06-26
BABU MATHEW P.JOSEPH, THOTTATHIL B.RADHAKRISHNAN
body2013
DigiLaw.ai
JUDGMENT : Mr. Thottathil B. Radhakrishnan, J. The selection and appointment of the petitioner in O.P. (CAT) No. 1351 of 2011 to the post of Lecturer (Teacher Education) in Botany in the service of Union Territory of Lakshadweep was challenged before the Central Administrative Tribunal by the petitioner in O.P.(CAT)No.2042 of 2011 whom we call, hereinafter, the 'applicant'. The Tribunal held that the prescription as to experience was mandatory in nature and therefore, upheld the challenge. However, the Tribunal did not accept plea of the applicant for an order that she be appointed, having regard to the fact that she had experience of the prescribed nature. 2. We have heard the respective learned counsel for the selectee and the applicant and the learned Standing Counsel for the U.T. of Lakshadweep. We have perused the pleadings and materials in the light of those submissions, apart from focusing attention on the basis of the Recruitment Rules. 3. While the applicant projects the case that the total length of experience gained by her as demonstrated by the certificate produced before the Tribunal exceeded the period of 3 years as required, we see the specific stand taken by the establishment in paragraph no. 4 of its counter affidavit before the Tribunal that all the periods in different slots taken together did not add up to the requisite minimum. That specific pleading of the establishment was made pointedly referring to the documents produced along with the application for selection. To controvert that, the applicant filed a rejoinder before the Tribunal pleading that the document which she held out as Annexure A6 was given back to her by the establishment and she had shown it to the selection committee and that she feels that the stand now taken by the establishment is a pre-planned one to oust her from the field of choice. 4. The selectee's learned counsel argued that the Tribunal erred in law and facts in assimilating the contents of the notification issued for selection and that at least with the passage of time, as the selectee is still continuing in service, it would be only appropriate that he be permitted to continue and discharge the duties and functions, taking it that he is qualified in terms of the notification and Recruitment Rules. 5.
5. We may notice that the stand taken by the establishment before the Tribunal was that the prescription as to experience in the Recruitment Rules was not mandatory insofar as direct recruitment is concerned and that such prescription was relevant only for deputationists. In exercise of the powers conferred by the Government of India, the Administrator, UTL, made the DIET, Lakshadweep (Centrally sponsored scheme) Department of Education (Lecturers Group 'B' Non-Gazetted) Recruitment Rules, 2007. Those Rules issued as per notification dated 12.1.2008, which stood with certain amendments, which are not relevant for the purpose of these cases, govern the issuance of notification and selection in question. Rule 5 of the Recruitment Rules authorises the Administrator to relax any of the provisions of those Rules except the Rule which prescribes certain disqualifications relating to matrimonial conduct etc. However, the power to relax is so specifically laid that one can never infer that such power has been exercised, unless it finds expression with reasons on record. Rule 5 of the Recruitment Rules reads as follows: "Where the Administrator, Union Territory of Lakshadweep is of the opinion that it is necessary or expedient so to do, he may, by order for reasons to be recorded in writing relax any of the provisions of these rules, with respect to any class or category of persons except Rule 4 of these Rules." The aforesaid shows that the power to relax would be exercised when the Administrator formulates an opinion that it is necessary or expedient so to do. Then, the power will be exercised by making an order recording the reasons to relax any of the provisions of the Rules other than the Rule of disqualification noted above. This can be done with respect to any class or category of persons. Obviously, this means that it cannot be made on a person to person basis. The power to relax, in ordinary circumstances, could be treated as available only before setting and finalising the rules of the game; before a competition is notified for selection. But, in cases where it becomes abundantly necessary in public interest and having regard to the nature and zone of the field of choice to do so; in exceptionally exceptional circumstances, such power may be exercised, even thereafter, in accordance with law.
But, in cases where it becomes abundantly necessary in public interest and having regard to the nature and zone of the field of choice to do so; in exceptionally exceptional circumstances, such power may be exercised, even thereafter, in accordance with law. Remember, the field of choice is confined to the inhabitants of the U.T. of Lakshadweep, all of whom are treated as belonging to the Scheduled Tribes. Article 335 of the Constitution, including the proviso thereto; reference to which has been made by the learned counsel for the selectee; provides fair room to make provision in favour of such categories in the constitutional context. However, though making a provision is not the same as making a law, it requires the exercise and expression of the executive decision of the State. Here, one need not call to aid Article 335, to trace the power to relax because such power is available as falling within that which is explicitly available to the Administrator in Rule 5 of the Recruitment Rules. But one thing is certain; certainty of conscious exercise of the power to relax can be noted only if the Administrator expresses the decision to relax, disclosing the reasons which should also be on record in writing. That is also needed to ensure transparency and bona fide exercise of the power to relax. Otherwise, exclusion of nepotism and favouritism cannot be ensured. Therefore, any amount of argument without any such expression of decision by the Administrator, would not improve the case. Not only that, as already noted, the stand of the U.T. of Lakshadweep was never on the basis of any such relaxation effected by the Administrator in exercise of power under Rule 5 of the Recruitment Rules. 6. The qualifications prescribed in the Recruitment Rules for the post of Lecturer (Teacher Education) are grouped into two under the head 'Educational and other qualifications required'. One group stands with the nomenclature 'Essential', while the other carries the heading 'Experience'. What are grouped as essential are only educational qualifications. This is clear also from what have been included in the column relating to that. The prescriptions under the heading 'Experience' get classified into two. The first item is, at least three years' experience of teaching in a school, preferably Elementary school/TEI (preferably ETEI).
What are grouped as essential are only educational qualifications. This is clear also from what have been included in the column relating to that. The prescriptions under the heading 'Experience' get classified into two. The first item is, at least three years' experience of teaching in a school, preferably Elementary school/TEI (preferably ETEI). Another item of experience prescribed is experience of active involvement in (a) In-service/Continuing/Distance Education of Teachers and or (b) Educational Extension. We do not see any legislative device in that prescription to read the two categories of experiences as alternative. We cannot but read them, as conjunctive. We do not see any ambiguity in the manner in which it is provided. Therefore, all the prescriptions under the different headings are mandatory and cannot be treated otherwise. 7. For the aforesaid reasons, we do not find any jurisdictional error or legal infirmity in the Tribunal having interfered with the selection and appointment challenged before it or in having refused to grant the applicant the relief of direction that she be appointed. These original petitions, therefore, fail. In the result, these original petitions are dismissed. No costs.