A. Sriram vs Managing Director, General Insurance Corporation of India and Others

This writ petition is for mandamus to direct the respondents 2 and 3, to call the petitioner for the written test to be held on 2-3-1980 or on any

other subsequent date or dates for the purpose of filling up the posts of typists in pursuance to the advertisement in The Hindu, dated 28th

October, 1979. The facts are as follows :

The petitioner is a Commerce Graduate of the Madras University and he passed in Third Class. He was born on 2-12-1958. He has passed the

Government Technical Examination in Typewriting (English) Higher Grade conducted by the Directorate of Technical Education, Government of

Tamil Nadu, Madras-600 003. He can normally type 45 words per minute.

On 28-10-1979 an advertisement appeared in The Hindu to the following effect :

The New India Assurancy Company Limited

(A Subsidiary of General Insurance Corporation of India)

MADRAS AREA OFFICE,

Vummidiars Shopping Centre,

311, Annua Salai,

Madras-600 002.

Invites applications from person fulfilling the following requirements for vacancies for the post of

TYPIST

In its offices in Tamil Nadu, Pondicherry and Andhra Pradesh.

Educational Qualifications :

Graduate of a recognised University with a speed of at least 40 W.P.M. in typing and knowledge of one of the Regional Languages.

Age Limit as at 30th June, 1980 - 26 years.

Relaxation for Reserved Category :

(1) For Ex-Servicemen - Graduate or Intermediate with 50% marks or Matriculate with 60% marks with a speed of at least 40 W.P.M. in typing

and knowledge of one of the Regional Languages :

(2) Age SC/ST : Maximum 31 years. Ex-Servicemen : 26 years plus number of years put in the armed forces plus 3 years (with maximum age to

be below 45 years). Physically handicapped persons : 36 years.

50% of vacancies are reserved as under :

S.C. - 20%

S.T. - 10%

Ex-Servicemen - 10%

Dependents of Servicemen killed in action - 7%

Physically handicapped - 3%

Salary Grade :

Selected candidates will be appointed in the Grade Rs. 175-10-235-15-295-20-395-EB-25-495-30-585 Plus usual D.A., H.R.A. and C.C.A.

wherever applicable. (Total monthly emoluments at the starting of the grade is approximately Rs. 643 as per present cost of living index). Last date

for receipt of application alongwith attested copies of certificates regarding age, education, category-10-11-1979.

Selected candidates under SC/ST will be paid II Class Trainfare/Busfare to and fro from their hometown to the test centre.

Note : (1) Candidates who have respondent to our advertisement dated 14-9-1979 need not apply again.

Note : (2) Canvassing in any form will be a disqualification.

The petitioner applied for the post of typist mentioned in the aforesaid advertisement along with necessary particulars. The petitioner understood

that the first respondent, the Managing Director, General Insurance Corporation of India, Industrial Insurance Building, Bombay had issued

instructions in regard to the procedure to be followed in the General Insurance Industry for recruitment of clerical and subordinate staff. The said

instructions are issued by the Statutory Corporation and even though it might be administrative in character they are equally binding on the

Corporation and its Subsidiary Units which include the second and third respondents. The Rules relating to the recruitment procedure prescribed

eligibility or the minimum qualification as Graduate for the post of typist. Therefore, this recruitment procedure contained in a scheme is binding on

the respondents. Rule 2 of the supplement to the recruitment policy also requires that all the applications which, prima facie, meet with the

recruitment norms, should be listed out centrewise and cadrewise and the applicants called for written test of three hours duration in English,

Arithmetic and in general knowledge.

The first respondent is the State within the meaning of Art 12 of the Constitution. In so far as this recruitment policy contained in the scheme is

binding on the respondent which also lays down the minimum qualification as Graduate, it is not open to the first respondent to issue instructions to

allow only the graduates who have obtained first class to take part in the written tests. Such a procedure will be contrary to the recruitment policy.

Further this Court has taken the view where the minimum qualification is prescribed it is not open to the authorities to prescribed a superior

qualification, in W.P. No. 4522 of 1979 (batch) dated 5-11-1979. Then again in Maharashtra State Electricity Board Engineers'' Association,

Nagpur Vs. Maharashtra State Electricity Board, where the qualifications were altered the Court held that to be illegal. Therefore, on the basis of

these two decisions the only contention urged by Mr. Dolia, the learned counsel for the petitioner is that at the threshold itself persons like the

petitioner who are wanting to take the written examination of or the post of typists cannot be thrown out. It is one thing to say in the ultimate

selection persons with first class qualifications can be preferred. But it is totally different to deny opportunity to him to take the examination. That

cannot be done so long as the minimum qualification is graduation, which minimum the petitioner does possess.

Mr. A. R. Ramanathan, the learned counsel for the respondents submits that it is not correct to state that the respondents are laying down a

preferential qualification. Having regard to the existing two vacancies for the post of typist in the areas, viz., Madras, Pondicherry and Vellore and

finding that more than 1,500 applications have been received the respondents conceived the idea of selecting the best material. With that object in

view while the applications were scanned 230 graduates of First Class were found to be available. Therefore, notwithstanding the prescription of

the minimum qualifications, in order to avoid undue rush, in convenience in the conduct of the examination and valuation of the papers a policy

decision was taken to restrict the eligibility only to first class graduates. Certainly, the Court will not be inclined to hold that where superior

qualifications are insisted upon so that the employer can get the best material such a course would be wrong. The decision relied on by the

petitioner will have no application whatever because in W.P. No. 4522 of 1979, dated 5-11-1979 (batch) this Court took a view that in so far as

the University had prescribed the eligibility for admission to Law Colleges, the Government cannot frame a rule so as to make a distinction

between the post graduate degree holders and ordinary degree holders. Equally no further invidious distinction could be made according to that

decision. That is all the ratio of the case. But the position here is far different. The respondents are not making any invidious distinction. They have

chosen to call only the first class graduates for examination which it is respectfully submitted is a commendable course. Equally the decision in

Maharastra State Electricity Board Engineers'' Association v. Maharashtra State Electricity Board 1986 I L.L.J. 197 has no application because

that was a case where the minimum qualification was altered for which it was held there was no power in the relevant provisions.

Before I deal with the merits of the respective submissions let me refer to the relevant provision relating to the procedure to be followed in

General Insurance Corporation for recruitment of clerical and subordinate staff. It is not denied by the learned counsel for the respondent that this

procedure is binding on the respondents. Though Mr. Dolia wanted to receive some assistance from an unreported decisions of the Calcutta High

Court made in Civil Rule 4418 (W) of 1979 inasmuch as the respondents does not deny the binding nature of this procedure I proceed on that

basis. What are the relevant fuels ? Rule Nos 7 to 16 lay down the mode of recruitment.

Rule No. 7 is as under :

Recruitment shall be effected at the centre of vacancies. In other words, the recruitment for vacancies at the various offices under a Divisional

Office, shall be effected at the Divisional Office, those at the Regional Area Office shall be effected at Regional/Area Office and those at the Head

Office shall be effected at the Head Office.

In the case on hand we are concerned with the area of Madras, Pondicherry and Vellore. The petitioner application is only for this are.

The conditions of eligibility are set out in Rule 13, 14 and 15.

The minimum qualifications are prescribed under Rule 16(a). The rest of the rules are omitted as unnecessary.

After this eligibility is satisfied then comes the per recruitment test contained in Rules 17 to 20. Rule 17(b) is test for the post of typists, which

read as follows :

There shall be one test paper for the post of typist of the duration of one and a half hours. The maximum number of marks shall be 100. This test

paper may be divided into two part (i) General English and (ii) General knowledge. In the section on English language which shall carry 70 marks,

more emphasis shall be laid on English Grammar (like synonyms, anonymous, correction of sentences, difference in pairs of words, filling the

blanks, correct spellings, direct/indirect speech, use of idioms and phrases, etc.) and less emphasis on composition. The section on General

knowledge aimed at testing the candidate''s general intelligence and/or his knowledge of important events, shall carry 30 marks.

Rule 22 says -

In selecting the candidates for recruitment the Committee concerned shall take into account the qualification of the candidate, his performance at

the pre-recruitment test and at the interview, and shall allot marks out of a maximum of 50 ......

There is an annexures which is termed as supplement to the Recruitment Police. Rule 2 of that annexures is important which reads as follows :

All the applications which, prima facie meet with the recruitment norms, should be listed out centrewise and cadrewise, and the applicants called

for written test of three duration in English Arithmetic and General knowledge .....

The ratio of the vacancies to the candidates called should be in the order of 1 : 10/15. We will also have to give a minimum notice of 7 days to the

candidates so that they could come adequately prepared for the test. Be particular that a sufficiently large number of candidates are tested so that

in a course of time when additional vacancies are sanctioned, we will be able to recruit from the wait list, which shall be announced along with the

list of selected candidates.

In view of the above rules the question arises having prescribed eligibility as mere graduation plus knowledge of one of the Regional languages

and in the relevant case having a speed of at least 40 words per minute in typewriting is it open to the respondents to say that only, Graduates who

obtained the first class would be allowed to take the written test. In other words, although this policy is binding on the respondents is it open to

them to ignore or by pass so as to deny a graduate who has passed in third class like the petitioner, an opportunity to take the written test. In my

very considered view it is one thing to say that the minimum qualification prescribed under Rule 16 referred to above should be adhered to. It is

not, nor can it be denied that the minimum qualification in this case has been adhered to. However, when first class graduates are allowed to take

the examination, the contention of the petitioner is the third class graduates are made uneligible. There are quite a number of answers to this

argument.

They are -

(1) These are the days in which there is seething frustration among the educated populace. I take it is by hard study a person is able to obtain

distinction or first class. In such a case is it not open to that graduate who has first class to his credit to hope that his first class degree would

receive recognition and acclamation at the hands of an employer. In the event of his first class graduation going unrecognised or not being given due

recognition the frustration will be more. I am not for a moment going into a larger question whether merely by first class graduation a person can be

considered to be superior. That is not the purport of my discussion now. Certainly if the employer thinks that his office should be manned by first

class graduates, the court cannot say that such a course should not be adopted. If that were so, the Court would be adding only to the abovesaid

frustration. Nor is it the function of this Court to say now superior a first class graduate is in comparison with a third class graduate.

(2) One cannot shut his eyes to the hard realities of the case. For this area of Madras, Pondicherry and Vellore, with which are concerned, there

are at present two vacancies for the post of typist. The learned counsel for the respondents states that 1,500 applications have been received in

response to the advertisement in The Hindu, dated 28th October, 1979. Among these 1,500 graduates 230 have obtained first class. Therefore, if

a policy decision is taken to invite only first class gradates to take the examination that is very pragmatic approach and I should even say it is a

commendable one. Instead of enabling all the graduates to take the examination and thereby installing some hope or other in their bosom, if the

respondents took the view that first class graduates would serve that purpose, the Court cannot say otherwise.

(3) Then again what about inconvenience that is likely to be caused. Admittedly in this case no examination fees was stipulated. If all the 1,500

Graduates are to make the examination to conduct examination for all of them and to have the answer books valued will be arduous one.

Therefore, from the point of view of convenience and with the object of getting the best material the written examination is confined only to 230

First Class Graduates there again the court cannot say otherwise. I am hard put to appreciate the argument of the learned counsel for the petitioner

that the eligibility being the graduation the petitioner must automatically call for the written test. Rule 16 merely prescribes the minimum. That means

that minimum cannot be lowered. But it is totally deference thing to say something more than the minimum is insisted upon for the written test.

Having regard the largeness of the number of applications and to get the best material for which any employer has every right. (sic). Now let me

refer to the two decision relied on by the learned counsel for the writ petitioner.

In W.P. No. 4522 of 1979, dated 5-11-1979 (batch) a Division Bench of this Court concerned with the admission to Law College where the

guidelines in G.O. Ms. No. 1768, Education dated 19-9-1979 and in G.O. Ms. No. 1768 Education, dated 1979 were made to the following

effect :

I II III

Class Class Class

(1) M.A., M.Sc., M.Com., 65 60 55

or other degree recognised

by the University

or equivalent thereto.

(2) B.A., B.Sc., B.Com., 50 45 40

and any degree recognised

by the University

or equivalent thereto.

(3) Additional Degree or 5

diploma.

On this the court observed that the first contention of the petitioners relates to the allocation of marks under entire 1, 2 and 3 relating to marks

awardable for M.A., M.Sc., M.Com.,, B.A., B.Sc., B.Com., and additions degree or diploma. It is contended that though it is stated that for

regular and evening courses the applicants may be awarded maximum of 100 marks as apportioned in the various entries, all the candidates are not

awarded the maximum of 100 marks. It was pointed out that only a candidate who has secured first class in M.A., M.Sc., or M.Com., or any

other post-graduate degree recognised by the University as equivalent thereto, can secure the maximum of 100 marks according to the new

guidelines, that is 65 marks under entry 1, 5 marks under entry 3, and 10 marks each under entire 4, 5 and 6 and no others. A post-graduate with

second class in any of the post-graduate degree can secure only the maximum of 95 marks, and with a third class he can secure only the maximum

of 90 marks. A graduate with first class if he gets the maximum in other headings will be able to secure only the maximum of 85 marks, while a

second class graduate gets the maximum of 80 marks and a third class graduate gets only 75 marks. Thus it is obvious that all the candidates are

not awarded the maximum of 100 marks, though the impugned Government order purports to award 100 marks. We are of the view that the

learned counsel is well founded in this contention. For every candidate the field of selection being one, each of the candidates must be able to

secure the maximum of 100 marks and the allocation will have to be such as to enable them to obtain the maximum number of marks in order to be

immuned from the attack of hostile discrimination. As is shown earlier, the allocation of marks for qualifying examination and the proficiency

obtained in the various extra-curricular activities, clearly shows an unequal treatment and a discrimination in favour of those who have secured a

post-graduate degree. The learned Advocate General contended that, though the minimum qualification is a Bachelor''s degree in any faculty of the

University in Tamil Nadu, it is not illegal as a principle of selection, to award some additional degree or diploma or for a qualification higher than

the minimum qualification prescribed. This argument of the learned Advocate General will amount to saying that the Government can prescribe a

higher qualification for admission and that the Government can treat unequally those with higher educational qualification and those with minimum

qualification. We are unable to agree with this contention. When the University has prescribed a qualification for eligibility for admission to the

B.G.I. course, it is not open to the Government to say that candidates with higher qualification alone would be admitted. In the admission to either

Medical Colleges or Engineering Colleges such higher qualification is, justifiable and in order to avoid an attack of hostile discrimination, not taken

into account. It might be, if an equal number of maximum, marks is awarded to all the candidates, the rules may further provide for a preference of

a higher qualified candidate in case of an equality in the marks obtained. Such a procedure will not suffer the vice of unequal treatment. That will be

rule of preference on merits being equal. But showing preference merely for possession of higher academic qualification, which is not required for

admission under the regulations of the University cannot be accepted as an equal treatment of all the candidates and it will amount to discrimination.

Such a discrimination on qualification for admission not educational institutions cannot be upheld as it will be under Arts. 14 and 15 of the

Constitution of India. Therefore, we are unable to accept the argument of the learned Advocate General that possession of a post-graduate degree

or an additional degree or diploma over that of the minimum qualification, namely, graduate of any facility, can be given any extra marks. The

learned counsel for the petitioners also contended that even among the Bachelor'' s degree-holders or Master''s degree-holders there is an

invidious discrimination between the degree holders in Arts and degree holders in Science. According to the learned counsel, comparatively it is

easier to obtain a first class in Science courses than in Arts or Commerce. This is also sought to be established with reference to the total number

of first classes that come out very year in the degree examinations as well as post graduate examinations. It was also contended that the selection

does not contemplate any personal interview of the candidate. Selection is to be made by the respective principles of the colleges with reference to

the particulars mentioned in the application form and the certificates produced along with the application. We have already noticed that the

applicants were required to produce only attested copies of the degree or diploma certificates, transfer and conduct certificates and community

certificates. Though the degree or diploma certificates might disclose the class obtained by the candidates in the relevant examinations, they will not

disclose the marks obtained by them. It is contended, therefore, that amount the first class candidates those who have secured 60% are treated

equally and similar in the 60% are treated equally and similar in the other classes. Therefore, the order is arbitrary, discrimination and illegal and is

liable to be set aside. There is substance in this contention of the learned counsel. So long there is no prescription of the degree in any particular

faculty for admission in Law Colleges, it is not possible to prescribe any test for determining the merit of each candidate with reference to the

nullifying degree course. Therefore, there could be no preference also for those who have secured a first class or second class over those who

secured a first class or second class over those who scared a first class of second class over those who secured a third who secured a third class.

Having regard to the fact that all the Bachelor''s degree holders and Master''s degree-holders of any faculty are eligible for admission, the inter

classification of those candidates who have obtained first class, second class or third class or those who have obtained more marks in a particular

class cannot be made as a distinction for selection and the graduates and post graduates will have to be treated equally and equal marks to be

allotted for educational qualification. We are, therefore, of opinion that the total marks that could be awarded under entries 1, 2 and 3 is

discriminatory and violative or Arts. 14 and 15 of the constitution of India.

This case has no application because there is no invidious distinction as between the post graduates and graduates and further the immediate

distinction is based on the qualification. The University which is the supreme body to control the academic matters had prescribed the eligibility

and, therefore, the government could not alter the eligibilities as to bring about a discrimination. That is the ratio of this decision. But in the instant

case the only first class graduates are allowed to take the written examination.

Equally, inapplicable is the decision reported in Maharashtra State Electricity Board Engineers'' Association, Nagpur Vs. Maharashtra State

Electricity Board, ; wherein it was observed as follows :

According to the learned counsel for the petitioners, Regulation 8 invests the power of modification of the minimum qualifications or experience

required for the various categories of posts only in the Board and not in the selection committee. The qualifications and the period of experience in

respect of each post as given in Schedule A of the regulations are described the ""Minimum"" qualifications. It is meaningless to suggest that this

minimum can be further reduced or qualified by some authority other than the Board. What Regulation 8 does is to invest the Board which is the

supreme authority in the matter of employment, with a power to make a modification in the minimum qualification in the matter of education or age

or experience.

In the instant case, as I said above the minimum is not altered but it is built up. For these reasons I conclude that the writ petition has no merit

and is hereby dismissed. No costs.