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Rajasthan High Court · body

2019 DIGILAW 2214 (RAJ)

Deepak Kumar v. Union Of India

2019-08-19

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

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JUDGMENT 1. Challenge in Writ Petition No.27099/2018 is made to order dated 20.08.2018 (Annexure-3), whereby Original Application, being O.A./291/247/2016 of the petitioners was dismissed by learned Central Administrative Tribunal, Jaipur Bench, Jaipur, (for short, 'the Tribunal') in terms of the order dated 31.03.2017 passed by the Ahmedabad Bench of the Tribunal in O.A. No.350/2015 - Akulkumar Vs. Union of India and Others. Whereas, challenge in Writ Petition No.1669/2018 is made to order dated 05.10.2017 (Annexure-13), whereby the Tribunal dismissed Original Application No.291/575/2015 of the petitioners in terms of the order dated 31.03.2017, referred to above. Further prayer in both the writ petitions is made for a direction to the respondents to give offer of appointment to the petitioners in accordance with their merit by treating the post of Postal Assistant equivalent to U.D.C. for candidates to the post of Assistant in Kendriya Vidyalaya Sangathan. 2. Grievance raised by the writ petitioners before the Tribunal was that even though they were allowed to appear in the written examination for appointment on the post of Assistant and shortlisted in the merit, but yet were not given appointment. The petitioners applied for appointment in response to the advertisement no.08 dated 25.08.2014 of the Kendriya Vidyalaya Sangathan. It is argued that the Tribunal has dismissed the original applications relying on the judgment of the Ahmedabad Bench dated 31.03.2017 in Original Application No.350/2015 - Akulkumar Vs. Union of India and Others. 3. It is argued that the condition of the advertisement could not be so strictly construed by the Tribunal. The condition in question requires a candidate to be "Graduate with 03 years experience as UDC in Central/State Govt./Autonomous Bodies/Public Sector Undertakings". The petitioners already held the post of Assistant with the Postal Department. 4. Learned counsel has, referring to Annexure-3 to Writ Petition No.1669/2018, submitted that as per recommendations of Sixth Pay Commission, the posts of Postal Assistant and U.D.C. carry the same pay scale of 5200-20200 with grade pay of Rs.2400/-. The petitioners ought to be therefore considered equivalent to the post of U.D.C. 5. It is argued that the petitioners subsequently obtained information under the Right to Information Act on 06.10.2015 from the respondents, which revealed that one Ravindra Singh was appointed on the post of Assistant on the basis of experience as Postal Assistant. 6. The petitioners ought to be therefore considered equivalent to the post of U.D.C. 5. It is argued that the petitioners subsequently obtained information under the Right to Information Act on 06.10.2015 from the respondents, which revealed that one Ravindra Singh was appointed on the post of Assistant on the basis of experience as Postal Assistant. 6. Moreover, learned counsel for the petitioners submitted that in the aforesaid information under the RTI the respondents themselves admitted equivalency of the posts, this therefore becomes a ground of discrimination. 7. Heard learned counsel for the petitioners and perused the material on record. 8. Perusal of the judgment passed by the Tribunal indicates that the Tribunal has dismissed the Original Applications in terms of the order dated 31.03.2017 passed by the Ahmedabad Bench of the Tribunal in OA No.350/2015 - Akulkumar Vs. Union of India and Others. The Ahmedabad Bench of the Tribunal dismissed the Original Application relying on the judgments of the Supreme Court in in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Another Vs. M. Tripura Sundari Devi, (1990) 3 SCC 655 and Bedanga Talukdar Vs. Saifudaullah Khan and Others, (2011) 12 SCC 85 . Relevant part of the judgment of the Tribunal in Original Application No.350/2015, reads thus:- "11. It is already mentioned that the facts are not in dispute. The specific stand of the respondents for nonselection of the applicant to the post in question is that he did not have the essential qualification prescribed in the Advertisement No.8 dated 25.08.2014. Admittedly, the applicant did not work as UDC at any point of time. On the other hand, it is the specific contention of Shri S.C. John that the post of UDC and PACO are identical to each other. Therefore, the question is whether the respondents can ignore the fact that the post of PACO and UDC are equivalent to each other? Can they reject the candidature of the applicant only on the basis of the nomenclature of the post? 12. To answer to the above questions, we may usefully refer to the judgment of the Hon'ble Supreme Court in the case of Bedanga Talukdar v. Saifudaullah Khan & Ors, (2011) 2 SCC(L&S) 635= (2011) 12 SCC 85 . Can they reject the candidature of the applicant only on the basis of the nomenclature of the post? 12. To answer to the above questions, we may usefully refer to the judgment of the Hon'ble Supreme Court in the case of Bedanga Talukdar v. Saifudaullah Khan & Ors, (2011) 2 SCC(L&S) 635= (2011) 12 SCC 85 . The operative portion of the judgment is an under: "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 stipulated 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 No.1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India." 13. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India." 13. We may also refer to yet another judgment of the Hon'ble Supreme Court in this regard in the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr. V. M. Tripura Sundari Devi, (1990) 3 SCC 655 . The relevant portion of the same is an under: "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." 14. While applying the above principles of the facts and circumstances of the case on hand, we find it difficult to accept the argument of Shri S.C.John. He may be correct in his arguments that the post of PACO and UDC are equivalent, but in the advertisement No.8 dated 25.08.2014 vide Annexure A/3 the essential qualification prescribed is "Graduate with 03 years experience as UDC in Central/State Govt./Autonomous Bodies/Public Sector Undertakings". The argument of Shri S.C.John can be accepted provided it is mentioned as "Graduate with 03 years experience as UDC or any equivalent post." But, it is not prescribed so. Therefore, in view of the absence of specific words 'or any equivalent post' in the said advertisement, the aggrieved persons are all those persons who were working in equivalent posts to that of UDC with different nomenclature in different Department of State/Central Govt./Autonomous Bodies/Public Sector Undertakings. In view of the clear, unambiguous and specific words mentioned in the Advertisement No.8 i.e. "03 years experience as UDC" many may not have applied to the post in question on the bonafide belief that they did not possess the experience as mentioned in the advertisement. In view of the clear, unambiguous and specific words mentioned in the Advertisement No.8 i.e. "03 years experience as UDC" many may not have applied to the post in question on the bonafide belief that they did not possess the experience as mentioned in the advertisement. In M.Tripura Sundari Devi (supra) the Hon'ble Supreme Court categorically held that any selection and appointment made in disregard to the qualification mentioned in an advertisement amounts to fraud on public. In Saifudaullah Khan (supra) the Hon'ble Supreme Court held that the qualification mentioned in the advertisement cannot be relaxed. It is declared therein that relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained under Articles 14 and 16 of the Constitution of India. Bearing this in mind, we have perused the advertisement No.8 dated 25.08.2014 vide Annexure A/3. We do not find that any power of relaxation is provided therein. As such if we were to grant the prayer as sought by the applicant in this O.A., the same would result in disregarding the principles/judgment of the Hon'ble Supreme Court both in Saifudaullah Khan (supra) and M. Tripura Sundari Devi (supra)." 9. The Rules do not specifically provide that apart from the post of U.D.C., holder of any other equivalent post would also be deemed to be eligible for appointment on the post of Assistant. As held by the Supreme Court in the aforesaid cases, the rules have to be strictly adhered to particularly when it does not give any power of relaxation. 10. On a pointed query by the Court, learned counsel for the petitioners was not able to show whether the argument of discrimination was raised before the Tribunal in the Original Applications or in Review Petition. 11. The Tribunal, in our considered view, has rightly dismissed the Original Applications of the petitioners following the judgment dated 31.03.2017 passed by the Ahmedabad Bench of the Tribunal in O.A. No.350/2015 - Akulkumar Vs. Union of India and Others. We do not find any merit in these writ petitions and the same are accordingly dismissed. 12. This also disposes of the stay applications. 13. Office to place a copy of this judgment in connected file.