P. Yacoob and Others vs T.P. Kunjikoya and Others

A.M. Shaffique, J.—Both these Petitions are filed challenging order dated 26.6.2008 in O.A. No. 269/2007 of the Central Administrative Tribunal, Ernakulam. W.P. (C) No. 24218 of 2008 is filed by persons who are aggrieved by the impugned order but are not parties to the said proceedings.

W.P. (C) No. 31869 of 2008 is filed by Respondents in O.A. No. 269 of 2007.

Exhibits referred are as shown in W.P. (C) No. 31869 of 2008 unless otherwise stated. Original Application was filed by a Graduate Teacher working in the Government Senior Secondary School Kiltan Island, Union Territory of Lakshadweep. His grievance was regarding the new recruitment Rules published as per Notification bearing F. No. 18/11/98-Edn. (Estt.) dated 10.10.2006 by virtue of which for the post of Assistant Education Officer (Academic), Assistant Headmaster, High School and Headmaster, Senior Basic School, the qualification criteria is changed.

The Applicant joined service on 1.12.1990. Thereafter a new Recruitment Rule was published as per Notification bearing F. No. 18/30/89-Edn dated 9.12.1994, by which it was indicated that the promotions are to be made from among trained graduate teachers with five years regular service in the grade. No educational qualification was prescribed. Government of India has issued a clarification stating that the Head Master of Primary Schools and Middle Schools should have the same academic qualification as are required for the post of Graduate Teachers. The clarification is dated 3.11.1987. As the clarification was against the earlier Rules, the matter was challenged in O.A. No. 529/2005 wherein a direction was issued to the Union of India to consider the representation of the Applicant in that O.A.

After considering the representation the Recruitment Rules of 1994 was amended by Notification bearing F. No. 13/30/89-Edn. dated 25.1.1996. As per the said Notification promotion was possible only for trained Graduate Teachers with five years regular service in the grade with post graduate qualification. This was challenged by certain persons which resulted in order dated 16.7.2001 in O.A. No. 585/2000 wherein the Tribunal had upheld the said Notification. It is said that the matter was confirmed by the High Court as well as the Supreme Court.

It is the contention of the Applicant that there after the impugned recruitment Rules were framed bearing F. No. 18/11/98-Edn. (Estt.) dated 10.10.2006 by which the education and other qualifications for direct recruits have been stipulated as ''trained Graduate Teachers'' with Post Graduate qualification having 5 years teaching experience in High School classes. 25% of the vacancies were by way of direct recruitment and 75% by way of promotion. In relation to the recruitment by promotion, deputation or absorption, it was indicated that in respect of promotion the qualification would be "trained graduate teachers who are in service prior to 25.1.1996 (without post graduation) with 10 years regular service/trained graduate teachers with 8 years regular service with post graduate qualification in the grade".

The contention of the Applicant is that the amendment made to the Recruitment Rules by which trained graduate teachers have been classified into two categories namely those who entered service prior to 25.1.1996 and those having entered into service after the said date were treated differently in regard to the qualification for a higher post. When Post Graduate qualification was prescribed for a higher post it came to be challenged which was ultimately confirmed when the matter reached Supreme Court and therefore, it was not open for the Government to have given a relaxation to the qualification for persons, who did not have postgraduate degrees but had entered service prior to 25.1.1996. Hence the Applicant sought for quashing of Annexure A6, the impugned Notification in so far as it includes a clause which gave trained Graduate Teachers, who are in service prior to 25.1.1996 with 10 years'' regular service not to have the Post Graduate qualification.

Respondents 2 & 3 filed reply statement inter alia contending that in regard to the point of granting consideration to the seniors, the Ministry has clarified at Point No. 3.1.2 of Annexure R2 OM dated 18.3.1988 as under:

It may so happen that in some cases of promotion, the senior officers would not have completed the required service whereas the juniors would have completed the prescribed eligibility conditions for promotion. In such cases, senior will be left out from consideration for the higher post. To avoid such situation, a suitable note may be inserted in the Recruitment Rules so that the seniors who have completed the probation period are also be considered where the juniors who have completed the requisite service are being considered.

Still further it is contended that at Point No. 3.1.3, it is clarified as:

where the eligibility service for promotion prescribed in the existing rules is being enhanced (to be in conformity with the Guidelines issued by the Department) and the change is likely to affect adversely some persons holding the feeder grade posts on regular basis, a note to the effect that the eligibility service shall continue to be the same for persons holding the feeder post on regular basis on the date of notification of revised Rules would be included in revised Rules.

Therefore, according to them, it is, after taking into consideration the representations of trained Graduate Teachers who could not improve the qualification and who were deprived of any promotional chance once for all by the Annexure A4 amendment, the impugned Notification was issued. Trained Graduate Teachers were originally appointed from 1960 onwards who had the promotion chance to the post of Headmaster, but it was by virtue of a subsequent Regulation as Annexure A4, all the existing incumbents lost their chance to be promoted in the career once and for all. Therefore the impugned Notification was issued taking into consideration the fact that their chance to get promotion was denied by Annexure A4 amendment in 1996.

The Tribunal, after considering the contentions and having relied upon various judgments of the Supreme Court in Rajasthan State Electricity Board Accountants Association Vs. Rajasthan State Electricity Board and Another, ; V.K. Sood Vs. Secretary, Civil Aviation and others, ; G.N. Nayak Vs. Goa University and Others, ; and The State of Mysore and Another Vs. P. Narasing Rao, , came to the conclusion that though there was an intelligible differentia while distinguishing persons into two groups namely Teachers, who joined prior to 25.1.1996 and after the said date. But when it comes to the question whether the differentia in question has a reasonable relation to the objects sought to be achieved by the Rule in question, the Tribunal formed an opinion that the object of prescribing higher qualification is to ensure higher academic standard and to achieve the said object the higher qualification cannot be diluted on the basis of a cut off date. On that basis, the impugned Notification to the extent mentioned in column 12 was set aside.

Heard the learned Standing Counsel appearing for the Petitioners in W.P. (C) No. 31869 of 2008, the learned Counsel appearing for the Respondents and the learned Counsel for the Petitioners in W.P. (C) No. 24218 of 2008.

The main contention urged by the Petitioners is that when the Recruitment Rules have been framed by the Administration of Lakshadweep exercising power under Article 309 of the Constitution of India, the Administrator in its wisdom had made amendments best suited to protect the academic efficiency as well as the interest of the staff. Such exercise of discretion cannot be found fault with and cannot be termed as not complying with instructions issued by the Government of India. According to the learned Counsel, the finding of the Tribunal that the amendment is to secure high standards in the education is after observing that there will be lack of promotion opportunity to certain Employees in the feeder category. In such a circumstance, it was wrong on the part of the Tribunal to have concluded that diluting the requirement of higher educational qualification prescribed by the law was a wrong approach. Specific reliance is placed on the judgment of the Supreme Court in V.K. Sood Vs. Secretary, Civil Aviation and others, . Paragraphs 6 & 7 of the said Judgment is relied upon which reads as under:

6.. Thus it would be clear that, in the exercise of the Rule-making power, the President or authorised person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to an office or a post under the State. The Rules thus having been made in exercise of the power under Proviso to Article 309 of the Constitution, being statutory, cannot be impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals, whose names have been mentioned in the Appeal. Suffice to state that it is settled law that no motives can be attributed to the Legislature in making the law. The Rules prescribed qualifications for eligibility and the suitability of the Appellant would be tested by the Union Public Service Commission.

It is next contended that several persons, whose names have been copiously mentioned in the Appeal were not qualified to hold the post of examiner and they were not capable even to set the test papers to the examinees nor capable to evaluate the papers. We are not called upon to decide the legality of their appointments nor their credentials in this Appeal as that question does not arise nor are they before the Court. It is next contended by Mr. Yogeshwar Prasad, the learned Senior Counsel that on account of inefficiency in the pilots'' operational capability air accidents have been occurring repeatedly endangering the lives of innocent travellers and this Court should regulate the prescription of higher qualifications and strict standards to the navigators or to the pilots be insisted on. We are afraid that we cannot enter into nor undertake responsibility in that behalf. It is for the expert body and this Court does not have the assistance of experts. Moreover it is for the Rule-making authority or for the Legislature to regulate the method of recruitment, prescribe qualifications etc. It is open to the President or the authorised person to undertake such exercise and that necessary tests should be conducted by UPSC before giving the certificates to them. This is not the province of this Court to trench into and prescribe qualifications in particular when the matters are of a technical nature. It is stated in the Counter-Affidavit that due to advancement of technology of the flight aviations the navigators are no longer required and therefore they are not coming in large number. Despite the repeated advertisements no suitable candidate is coming forward. We do not go into that aspect also and it is not necessary for the purpose of this case. Suffice to state that pursuant to another Advertisement made in July 1992, the Appellant is stated to have admittedly applied for and appeared before the UPSC for selection and that he is awaiting the result thereof. Under these circumstances, we do not find any substance in this Appeal. The Appeal is accordingly dismissed. No costs.

Reliance is also placed on the judgment of the Supreme Court in Union of India (UOI) and Another Vs. R. Iyyaswamy and Others, , wherein the Supreme Court had upheld a new policy in relation to promotion by selection against 25% quota available to Assistant Engineers (Akashwani and Doordarshan Group ''B'' Posts). In that case Rule 2(1)(a) of the (Akashwani and Doordarshan Group ''B'' Posts) Recruitment (Amendment) Rules, 1985 was challenged as discriminatory and violative of Articles 14 & 16 of the Constitution wherein the Supreme Court held as under:

As noted by the Tribunal, minimum qualification for direct recruitment as Engineering Assistant is diploma in Engineering or B.Sc. degree with Physics as the main subject. All those who are recruited as Engineering Assistants constitute one single cadre. There is no difference as regards their pay or other emoluments on the ground that they are degree-holders or diploma-holders. It is nobody''s case that the nature of duties and responsibilities of diploma-holders is different from those of the degree-holders. Thus no distinction is recognised between graduates and diploma-holders at the level of Engineering Assistants and they are all considered as equals. The Tribunal was, therefore, wrong in proceeding on the basis that the degree-holders and diploma-holders enter the cadre of Engineering Assistants through different channels and that at the stage of entry, the requisite qualifications are also different. Even when the Engineering Assistants are considered for promotion to the higher post of Senior Engineering Assistants no distinction is made on the ground of their educational qualifications. The cadre of Senior Engineering Assistants is also a single undivided cadre and in the matter of pay, duties and responsibilities, all Senior Engineering Assistants are treated equally. Except that the post of Assistant Engineer is a Group ''B'' gazetted post, no other reason could be advanced by the learned Counsel appearing for the contesting Respondents justifying a necessity to make a distinction between a graduate Engineer and a diploma-holder while considering Senior Engineering Assistants for promotion to that post Simply because a certain percentage of the posts of Assistant Engineers was reserved for graduate Engineers in the past, that did not create any vested right in their favour. If merit and efficiency are the considerations while making promotions to the higher posts, there is no reason why a certain percentage of posts of Assistant Engineers should be reserved for graduate Engineers and they should not be made to compete with diploma-holders. A degree in Engineering is a better educational qualification than a diploma in Engineering; and, therefore, while competing for the post of Assistant Engineers, the graduate Engineers will have an edge over the diploma-holders. By adopting the new policy contained in Rules 2(1)(a) & (b) of the Amendment Rules, the Government appears to have made an attempt to balance the advantages arising out of merit and experience based on long service. The 25 per cent Promotion Quota Rule enables those Senior Engineering Assistants who have rendered long years of service but due to certain reasons like age, etc. do not desire to appear for the competitive examination but are otherwise fit for being promoted to such higher post. The policy underlying Rules 2(1)(a) & (b) of the Amendment Rules of 1985, therefore, cannot be regarded either as discriminatory or arbitrary. It is also not correct to say that by providing for promotion by selection by Departmental Promotion Committee against the 25 per cent Promotion Quota what the Government has done is to make unequals equal. As stated earlier, the diploma-holders were treated as equals in all respects in the subordinate cadres of Senior Engineering Assistants and Engineering Assistants.

In N. Abdul Basheer case, in the context of a rule fixing graduate-non-graduate ratio for filling up the promotional post of Excise Inspector, this Court observed as under: (SCC pp. 350-51, Para 13)

This is not a case where the cadre of officers was kept in two separate divisions. It was a single cadre, and they were all equal members of it. There is no evidence that graduate Preventive Officers enjoyed higher pay than non-graduate Preventive Officers. The High Court has noted that the nature of the duties of Preventive Officers whether graduate or non-graduate was identical, and both were put to fieldwork. Non-graduate Preventive Officers were regarded as competent as graduate Preventive Officers. There is no evidence of any special responsibility being vested in graduate Preventive Officers. Once they were promoted as Excise Inspectors there was no distinction between graduate and non-graduate Excise Inspectors.

While dealing with the contention that the recognition of graduation is recognition of merit and that more merit in the post of Excise Inspector would be conducive to better administrative efficiency, this Court further observed thus: (SCC p.351, Para 15)

Ordinarily, it is for the Government to decide upon the considerations which, in its judgment, should underlie a policy to be formulated by it. But if the considerations are such as prove to be of no relevance to the object of the measure framed by the Government it is always open to the Court to strike down the differentiation as being violative of Articles 14 & 16 of the Constitution. In the present case, we have already commented on the circumstance that the conditions of employment and the incidents of service recognise no distinction between graduate and non-graduate officers and that for all material purposes they are effectively treated as equivalent. Accordingly, this contention must also be rejected.

In view of this clear pronouncement of law, the contrary view taken by the Tribunal has to be regarded as bad. In the result, these Appeals are allowed. The order passed by the Tribunal is set aside. Rule 2(1)(a) of the Amendment Rules of 1985 is held to be valid and TA No. 85 of 1987 filed by the contesting Respondents, is dismissed. In view of the facts and circumstances of the case, there shall be no order as to costs.

Whereas the learned Counsel appearing of the Respondents inter alia contended that there was no reasonable nexus to classify the seniors and juniors having more experience and less experience to a promotion course and dilute the qualification as far as seniors are concerned. This, according to the learned Counsel, is not on the basis of intelligible differentia as the purpose of making such a classification will be defeated when compared to the object to be achieved.

Having regard to the factual circumstances involved in the case, it could be seen that the qualification for a higher post as prescribed in the Rules was 5 years in the teachers'' training grade. It is by virtue of a Circular issued by the Government of India that the Lakshadweep Administration adopted the qualification of Post Graduate degree for the promotion post from teacher''s grade. It is taking into consideration the local requirement and the experience of the teachers in a particular grade that the impugned amendment came to be issued. It could be seen that those teachers having 10 years experience and appointed prior to 25.1.1996 were treated differently as there was no insistence that they should have obtained Post Graduate degree for the purpose of promotion, whereas in respect of persons who are appointed after 25.1.1996, for getting promotion Post Graduate degree was made mandatory.

Going by the law laid down by the Supreme Court in V.K. Sood v. Secy., Civil Aviation, 1993(2) LLN 1 (SC); and Union of India (UOI) and Another Vs. R. Iyyaswamy and Others, , we do not think that this Court will be justified in interfering with the Rule making process. The contention that the classification made is discriminatory cannot be accepted on account of the fact that in so far as persons in the feeder category appointed prior to 25.1.1996 are concerned, two years additional experience is prescribed for them to be promoted to the next higher post whereas in respect of post graduate teachers appointed after 25.1.1996, the experience required is only 8 years. Therefore, to a certain extent, it could be seen that the Respondent had considered the relevancy of a post graduate degree and the experience gained by teachers, who are appointed prior to 25.1.1996 and had formulated a procedure whereby those teachers who do not have a chance to obtain a post graduate degree are not completely ruled out from being promoted. Their right to get appointment to a promotion post was also considered and they were to acquire more experience than the other teachers who were appointed after 25.1.1996. Going by the said standard adopted by the 1st Respondent, we are of the view that there is no discrimination to persons who have become teachers after 25.1.1996. In that view of the matter, we are of the opinion that the Order passed by the Tribunal is liable to be set aside In the result, these Writ Petitions are allowed and the order in O.A. No. 269 of 2007 of the Central Administrative Tribunal, Ernakulam is quashed.