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2019 DIGILAW 50 (KER)

Union of India v. Bijoy. R, S/o. Ramanandan

2019-01-16

R.NARAYANA PISHARADI, V.CHITAMBARESH

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JUDGMENT : V. CHITAMBARESH, J. 1. The establishment of Indian Space Research Organisation ('ISRO' for short) was one of the greatest achievements of Dr. Vikram Ambalal Sarabhai who is considered as the father of the Indian Space Programme. He once said: ''…............But we are convinced that if we are to play a meaningful role nationally, and in the community of nations, we must be second to none in the application of advanced technologies to the real problems of man and society.'' We can be second to none only if we do not compromise on educational qualifications of those involved in space research and mere experience sans qualification may prove to be deficient for the progress. 2. ISRO of the Department of Space invited applications from eligible candidates for recruitment to the post of Assistants giving emphasis to the educational qualification and knowledge in the use of computers. Annexure A2 advertisement dated 17.07.2014 prescribed the educational qualification as follows: Graduation in Arts/Commerce/Management/Science/Computer Applications with First Class, as declared by the University. WITH Knowledge in the use of Computers. (The prescribed qualification to be acquired on or before 07.08.2014). The respondent did appear for the written test pursuant to his on-line application and was called for an interview on the basis of an interim order passed by the Central Administrative Tribunal ('the Tribunal' for short). Annexure A3 call letter prescribed the educational qualification as follows: 2. You are eligible to attend the interview only if you fulfill the following conditions: (a) xxxxxxxxx (b) Graduation in Arts/Commerce/Management/Science/Computer Applications with First Class, as declared by the University. The respondent having served the Indian Army during the period from 27.12.1993 to 31.12.2010 had applied to the post of Assistant as an Ex-serviceman on the premise that he should be considered as a Graduate. This is on the basis of Ext.P1 Graduation Certificate issued by the Indian Army that the respondent 'is eligible to the post for which the essential educational qualification prescribed is Graduation'. 3. The respondent contended that he is eligible to be considered under a relaxed standard of selection to make up the deficiency of First Class in Graduation since there are no sufficient number of Ex-servicemen candidates. Reliance was placed on Rule 6A of the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 ('the Rules' for short) which is extracted hereunder: ''6A. Reliance was placed on Rule 6A of the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 ('the Rules' for short) which is extracted hereunder: ''6A. Lower standard for selection:-In the case of direct recruitment, if sufficient number of candidates belonging to the Ex-servicemen are not available on the basis of general standard to fill all the vacancies reserved for them, candidates belonging to the category of ex-servicemen may be selected under a relaxed standard of selection to make up the deficiency in the reserved quota subject to the condition that such relaxation will not affect the level of performance by such candidates.'' The petitioners who are the Union of India, the Secretary & Chairman of the Department of Space and Director of Vikram Sarabhai Space Centre respectively asserted that relaxation of educational qualification is not permissible. Reliance was placed on Clause 2.2.1 of Annexure R1 source document issued regarding 'Career Opportunities for Administrative Staff' which reads as under: ''2.2.1. Qualification and experience prescribed in the norms should be treated as the minimum essential requirement and should be advertised/notified accordingly. It should be noted that educational qualification and experience are two separate items. The required experience should have been obtained after acquiring the prescribed educational qualification. Relaxation of educational qualification is not permissible, except where specifically stated.'' (emphasis supplied) The Tribunal by Annexure RA(1) order allowed O.A.No.180/00502/2015 filed by the respondent and held that there can be relaxation of the educational qualification of First Class in Graduation. M.A. No. 180/00526/2017 filed by the petitioners for review of Annexure RA(1) order was also dismissed by Ext.P9 order and both the orders are under challenge in this original petition. 4. We heard Mr. T.V. Vinu, Central Government Counsel for the petitioners and Mr. P. Raveendran, Advocate for the respondent at length. 5. The petitioners in Ext.P6 additional reply statement filed before the Tribunal specifically pointed out that twelve other candidates had secured much higher marks than the respondent in the written test conducted. The said twelve candidates whose names were furnished had also not been called for the interview in the Ex-servicemen quota for not securing First Class in Graduation. The respondent in all fairness should have impleaded those twelve candidates in his Original Application before the Tribunal and could not have stolen a march over them. The said twelve candidates whose names were furnished had also not been called for the interview in the Ex-servicemen quota for not securing First Class in Graduation. The respondent in all fairness should have impleaded those twelve candidates in his Original Application before the Tribunal and could not have stolen a march over them. The Tribunal could have at best directed relaxation to be given to all those Graduates who had applied to the post and who did not secure First Class as stipulated in the advertisement. The Tribunal erred in extending the benefit of relaxation to the respondent alone when the Original Application itself was liable to be dismissed for non-joinder of necessary parties. 6. The respondent relied on Annexure A4 certificate issued by his Commandant in the Indian Army to the effect that Ext.P1 Graduation Certificate issued is a First Class Graduation Certificate as per letters referred to. It should be borne in mind that First Class should be as declared by the University in which the candidate had studied evident by Annexures A2 advertisement and A3 call letter. A mere declaration by the Government or the Indian Army that the respondent is a First Class Graduate would not suffice in the absence of a declaration by any University. There is neither proof that the respondent had studied Graduation in any University nor evidence to show that he had secured a First Class as declared by the University. There was no necessity to approach the Tribunal even for a relaxed standard of selection to make up the deficiency if really the respondent was duly qualified for selection to the post. 7. Heavy reliance was placed on Annexure R3 letter by the Ministry of Defence which is a reply to the query raised by ISRO as regards the prescribed qualification of Graduation with First Class for the post. The penultimate paragraph of the reply reads as under: ''Ex-servicemen who have been awarded graduation certificate can be considered for the Group C post where prescribed qualification is Graduation with first class, it is left to the discretion of the Appointing Authority to see whether the ex-servicemen so appointed is capable of performing the advertised post. The penultimate paragraph of the reply reads as under: ''Ex-servicemen who have been awarded graduation certificate can be considered for the Group C post where prescribed qualification is Graduation with first class, it is left to the discretion of the Appointing Authority to see whether the ex-servicemen so appointed is capable of performing the advertised post. Since the ex-servicemen who have been called for interview has already qualified the All India written test conducted by your department, the Appointing Authority may consider waiving the condition that Graduate with First Class for ex-servicemen taking into account the vast practical experience obtained during the previous services.'' (emphasis supplied) The above reply only indicated that it is for the Appointing Authority -ISRO -to consider whether the condition of Graduate with First Class for Ex-servicemen has to be waived or not and that they cannot be compelled. It is trite law that an appointment made ignoring the minimal educational qualification would be wholly illegal which cannot be cured by taking recourse to regularisation. The decision in Madhya Pradesh State Co-operative Bank Ltd., Bhopal v. Nanuram Yadav and others [ (2007) 8 SCC 264 ] is an authority for the said proposition. The question whether the lack of essential educational qualification can be condoned was considered in Pramod Kumar v. U.P. Secondary Education Services Commission [ (2008) 7 SCC 153 ]. It was held therein as follows: ''17. If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularised, particularly, when the statute in no unmistakable term says so. Only an irregularity can be. {See Secretary, State of Karnataka and others v. Umadevi(3) and others [ (2006) 4 SCC 1 ], Rational Fertilizers Ltd. and others v. Somvir Singh [ (2006) 5 SCC 493 ] and Post Master General, Kolkata and others v. Tutu Das (Dutta) [ (2007) 5 SCC 317 ]}'' 8. The concept of 'relaxed standard of selection' can at best relate to lowering of the benchmark for written test and the interview without sacrificing the minimum educational qualification prescribed for the post. The qualifications are not relaxable unless it is clearly stated in the notification inviting applications lest it amounts to fraud on public in the matter of appointment. The concept of 'relaxed standard of selection' can at best relate to lowering of the benchmark for written test and the interview without sacrificing the minimum educational qualification prescribed for the post. The qualifications are not relaxable unless it is clearly stated in the notification inviting applications lest it amounts to fraud on public in the matter of appointment. There would have been many who had not applied for the post because they did not possess the qualifications advertised {See District Collector v. Sundari Devi [ (1990) 3 SCC 655 ]}. The Tribunal erred in directing the ISRO to relax the essential educational qualification under the pretext of relaxed standard of selection as per Rule 6A of the Rules. Annexure RA(1) order as well as Exhibit P9 order passed on review are hereby set aside and O.A.No.180/00502/2015 filed by the respondent before the Tribunal is dismissed. The original petition is allowed. No costs.