Research › Search › Judgment

Madras High Court · body

2016 DIGILAW 7 (MAD)

G. Kamalakanniah v. Registrar, Central Administrative Tribunal

2016-01-04

M.M.SUNDRESH, SATISH K.AGNIHOTRI

body2016
ORDER : 1. Seeking to review the order dated 21.08.2014 passed by this Court in W.P. No. 12532 of 2013, the present application has been filed by the applicants, who are the petitioners therein. 2. Before going into the submissions made by the learned counsels for the parties, it is appropriate to place on record the facts governing the case. 2.1 The notification dated 30.12.2011 was issued to fill up 253 vacancies of Office Superintendent and the applicants submitted their applications in pursuant to the said notification. Para 2 of the notification deals with the eligibility criteria, of which paras 2.1 and 2.2 are relevant and thus, they are reproduced hereunder. "2.0 ELIGIBILITY CRITERIA 2.1 Serving ministerial staff of all departments (except Accounts & RPF) having the service detailed below and possessing qualification of graduation, the degree either under 11+1+3 years stream or under 10+2+3 years stream from a recognized University. 2.2. Degree obtained by Under Graduate or Post Graduate directly from Open University or other such institutions without 11+1+3 or 10+2+3 stream will not be eligible. Such applications will be summarily rejected." 2.2. The applicants have admittedly completed only 8th and 10th Standards respectively before enrolling their names to the first year Degree course through Open University. Thus, they were found not eligible to be considered for the post of Office Superintendent as per the notification aforesaid. The rejection order made was challenged by the petitioner before the Central Administrative Tribunal in O.A. No. 270 of 2012. 2.3. The applicants were permitted to write the examinations in pursuant to the interim order obtained on 09.03.2012 in O.A. No. 270 of 2012. The first applicant did not obtain the requisite percentage of 60% marks in the written examination held. The Tribunal, thereafter, dismissed the original application on 22.11.2012. Challenging the same, the applicants herein have filed the writ petition in W.P. No. 12532 of 2013 before this Court. 2.4. After the orders were passed by the Tribunal in O.A. No. 270 of 2012, on 08.02.2013, Personnel Branch of Southern Railway sent a letter to the Secretary (E), Railway Board, New Delhi, seeking clarification regarding the degree obtained from the open Universities without undergoing 10+2+3 or 11+1+3 and under graduate degree without prosecuting 10+2 or 11+1. 2.4. After the orders were passed by the Tribunal in O.A. No. 270 of 2012, on 08.02.2013, Personnel Branch of Southern Railway sent a letter to the Secretary (E), Railway Board, New Delhi, seeking clarification regarding the degree obtained from the open Universities without undergoing 10+2+3 or 11+1+3 and under graduate degree without prosecuting 10+2 or 11+1. By way of reply, a communication dated 30.10.2013 was sent by the Railway Board stating that the guidelines issued by the University Grants Commission (UGC) should be taken into consideration. Another letter dated 18.11.2013 was addressed by the Railway Board to the General Manager (P) on the same lines subject to the fulfilment of the conditions mentioned in the letter dated 30.10.2013. 2.5. Yet another letter was sent by the Personnel Branch, Southern Railway to the Railway Board dated 16.12.2013 seeking further clarification on the two letters aforesaid dated 30.10.2013 and 18.11.2013. A reply was given on 27.01.2014 stating that the earlier letters dated 30.10.2013 and 18.11.2013 may be kept in abeyance as further clarification was sought for from the University Grants Commission. It is the case of the respondents that the clarifications dated 30.10.2013 and 18.11.2013 were issued without considering the decision rendered by the Apex Court in N. Ramesh vs. Sibi Mada Gabriel and Others, (2009) 4 SCC 590 . 2.6. Thereafter, the University Grants Commission has addressed a letter to the respondents stating that there has been another amendment made in the Regulations 1985. 2.7. A letter dated 27.1.2014 was sent by the Railway Board to the General Manager (P), Southern Railway, Chennai, that the letter dated 18.11.2013 kept in abeyance may be treated as operational. This Court, by an order dated 26.02.2014, has directed the University Grants Commission to file a counter affidavit to explain their stand. Thereafter, another counter affidavit has been filed. The first counter affidavit was forwarded by another counter affidavit, wherein it has been stated that though the graduation obtained by the applicants may be valid, insofar as the academic qualification for the purpose of the recruitment to the services or posts is concerned, it is a discretion of the respondents to fix the qualification as they think fit and proper. Thereafter, a notification was issued on 04.06.2014 by the Personnel Branch of Southern Railway, in which, the first applicant has also participated. 2.8. Thereafter, a notification was issued on 04.06.2014 by the Personnel Branch of Southern Railway, in which, the first applicant has also participated. 2.8. This Court dismissed the writ petition on 21.08.2014 on the ground that the notification dated 30.12.2011 prescribing the qualification eligibility criteria is very clear and as there is no ambiguity, no interference is required. It was also held that fixing the qualification is the prerogative of the respondents. Seeking to review the said order, the present review application has been filed. 3. Ms. R. Vaigai, learned counsel appearing for the applicants, submitted that this court has not taken into consideration the orders passed by the respondents during the pendency of the writ petition. Having taken a stand through the letters dated 13.10.2013 and 18.11.2013, it is not open to the respondents to take a different stand. The Notification No. P. (RT)563/LDCE/OS dated 30.12.2011 has not been taken into consideration. Similarly, the Gazette notification issued by the Government of India dated 08.04.1995 was also not taken note of. The qualification would go back to the original decision made. Therefore, the review application will have to be allowed. 4. The learned counsel appearing for the respondents submitted that there is no ground made out for review, as all the grounds raised now were available before the Court and they were analysed at the time of passing the order in the writ petition. There is no error apparent in the order passed. The qualification fixed subsequently cannot be the basis to question the notification issued earlier. There is no vacancy as of now. The selected persons were given appointments. The first applicant failed in the examination. He also wrote the examination subsequently. Therefore, no interference is required. 5. As rightly submitted by the learned counsel appearing for the respondents 2 to 4, the notification dated 30.12.2011 does not create any ambiguity. The eligibility criteria has been mentioned specifically therein. As it lies solely in the domain of respondents 2 to 4, the applicants cannot question the same indirectly by challenging the rejection of the applications made by them. Similarly, a decision taken subsequently would not be a ground to non suit the notification issued earlier. The qualification qua the decision to be taken for future would not affect the decision taken already and implemented. As stated above, the decision taken was culminated into the notification. Similarly, a decision taken subsequently would not be a ground to non suit the notification issued earlier. The qualification qua the decision to be taken for future would not affect the decision taken already and implemented. As stated above, the decision taken was culminated into the notification. Therefore, by the said decision, the eligibility criteria has been fixed. Mere fact that it was changed subsequently cannot be a ground to nullify the notification issued. Therefore, the two letters relied upon by the applicants cannot have any impact on the notification issued on 30.12.2011. The decision made was given effect to and implemented by appointing selected candidates. Therefore, there is no quarrel over the decision already made resulting in the notification dated 30.12.2011. It is not as if the applicants have been discriminated selectively. Rather the notification was made to apply all other similarly placed persons. It is also to be noted that the applicants have not challenged the notification dated 30.12.2011 as such. We have already made it very clear as to the right of the employer to fix the qualification. Thus considering the case on merit and also the scope of review, we do not find any merit in the application filed. Accordingly, the Review Application is dismissed. However, there is no order as to costs.