Saurabh Kumar And Ors vs Union of India And Ors

Raj Vir Sharma, J

This Original Application under Section 19 of the Administrative Tribunals Act, 1985, was filed by the applicants on 9.4.2018 seeking the following reliefs:

―(i) To quash and set aside the impugned Note/Clarification published on website of Respondent No.2 on 28.03.2018 and direct the respondents to treat the candidates/applicants possessing 4 years degree in engineering in the concerned subject as mentioned in the advertisement/RRs as eligible for appointment to the post of Scientific Assistant in Indian Meteorological Department on the basis of advertisement (Annexure A-3).

(ii) To declare the action of respondents in declaring the applicants as ineligible for appointment to the post of Scientific Assistant as illegal and direct the respondents to consider the claim of applicants for appointment to the post of Scientific Assistant on the basis of their merit in the competitive examination held by SSC pursuant to Notice of Recruitment of Scientific Assistant in Indian Meteorological Department Examination, 2017.

(iii) To pass any other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case including quashing of Notice dated 04.08.2017 (A-2).‖

Resisting the O.A., the respondent nos. 1 and 2 have filed a counter reply. The applicants have also filed a rejoinder reply refuting the stand taken by the said respondents.

2.1 Respondent no.3-Staff Selection Commission (SSC) has neither appeared nor filed any counter reply.

We have carefully perused the pleadings of the parties and have heard Mr.M.K.Bhardwaj, learned counsel appearing for the applicants, and Mr.H.K.Gangwani with Mr.Vidya Sagar and Mr.Mayank Kapoor, learned counsel appearing for the respondent nos. 1 and 2.

The brief facts of this case, which are relevant for the purpose of deciding the controversy and are not disputed by either side, are as follows:

4.1 Respondent no.3-SSC issued/uploaded on its website the notice dated 18.7.2017 (Annexure A/2) for conducting an open competitive examination for recruitment to the post of Scientific Assistant in India Meteorological Department (IMD), Group ‗B'Non-Gazetted, Non- Ministerial, in Level 6 of the Pay Matrix (Pay Band 2 (Rs.9300-34800) plus Grade Pay Rs.4200 in pre-revised scale) from 20.11.2017 to 27.11.2017 in computer based mode all over the country.

4.2 Paragraph 5 of the notice dated 18.7.2017(ibid) stipulated thus:

―5. MINIMUM ESSENTIAL EDUCATIONAL QUALIFICATIONS: (As on 04.08.2017)

Bachelor's Degree in Science (with Physics as one of the subject)/Computer Science/Information Technology/Computer Applications or Diploma in Electronics and Telecommunication Engineering from a recognized Institution/University or equivalent.

NOTE-I The qualifying Degree or diploma referred above should be in First Class (60% marks) or 6.75 CGPA on a 10 point scale.

NOTE-II The qualifying Degree or diploma referred above must be of three (3) years duration after (10+2) examination.

NOTE-III The applicant must have passed 10+2 Examination from a Recognized Board or equivalent in Science with Physics and Mathematics as core subjects.

NOTE-IV As per Ministry of Human Resource Development Notification dated 10.06.2015 published in Gazette of India, all the degrees/diplomas/certificates including technical education degrees/diploma awarded through Open and Distance Learning mode of education by the Universities established by an Act of Parliament or State Legislature, Institutions Deemed to be Universities under Section 3 of the University Grants Commission Act, 1956 and Institutions of National Importance declared under an Act of Parliament stand automatically recognized for the purpose of employment to posts and services under the Central Government provided they have been approved by the Distance Education Bureau, University Grants Commission.

NOTE-V Candidates who have not acquired/will not acquire the educational qualification as on the closing date of receipt of application will not be eligible and need not apply.

NOTE-VI Ex-Servicemen who have done various courses from Armed Forces which are certified by competent Authority that they are equivalent to Bachelor's Degree in Science (with Physics as one of the subject)/Computer Science/Information Technology/Computer Applications or Diploma in Electronics and Telecommunication Engineering are eligible to appear in the Examination.‖

4.2.1 The Ministry of Earth Sciences, Scientific Assistant Recruitment Rules, 2011 (hereinafter referred to as ―Recruitment Rules‖) prescribed the following educational and other qualifications for direct recruitment to the post of Scientific Assistant in India Meteorological Department:

―Bachelor's Degree in Science (with Physics as one of the subject)/ Computer Science/ Information Technology/ Computer Applications or Diploma in Electronics and Telecommunication Engineering from a recognized Institution/University or equivalent.

NOTE-I The qualifying Degree or diploma referred above should be in First Class (60% marks) or 6.75 CGPA on a 10 point scale.

NOTE-II The qualifying Degree or Diploma referred above must be of three (3) years duration after (10+2) examination.

NOTE-III The applicant must have passed 10+2 Examination from a Recognized Board or equivalent in Science with Physics and Mathematics as core subjects.‖

4.3 The respondent-SSC, by another notice dated 4.8.2017, issued certain other instructions regarding the said Recruitment of Scientific Assistant in India Meteorological Department Examination,2017 as per the notice dated 18.7.2017(ibid), and reiterated that the qualifying Degree or Diploma in the listed disciplines must be of three years duration after 10+2 Examination.

4.4 Except applicant nos.7 and 35, all other applicants possessed 4- year B.Tech Degree in Electronics & Communication Engineering/ Computer Science Engineering/Information Technology/ Electronics Engineering. Applicant nos. 7 and 35 possessed 4-year B.Sc. Engineering in the relevant disciplines. They responded to the notice dated 18.7.2017(ibid) and applied for appearing at the competitive examination. On the basis of Admit Cards, the applicants appeared at the online examination conductedby the respondent-SSC during 22nd to 25th November 2017. The respondent- SSC declared the marks obtained by the candidates in the recruitment examination and handed over category-wise Merit Lists to the respondent- Department in terms of Paragraph 11(I) read with Paragraph 18(ii) of thenotice dated 18.7.2017 (ibid). While so, the respondent-Department issued and uploaded on its website the impugned clarification dated 28.3.2018which reads thus:

―Regarding appointment of candidates for the post of Scientific Assistant in India Meteorological Department, it is clarified that the candidates having qualifying degree in the listed disciplines must be of 3 years duration after 10+2 examination. In this regard, Staff Selection had issued clarification vide Notice No.3-1/2017-P&P-1 dated 4th August, 2017.

In view of the above, it is further clarified that four year degree holders are not eligible for the post of Scientific Assistant in the India Meteorological Department.‖

4.5 Being aggrieved by the above clarification, some of the applicants made representations and sent emails and legal notices requesting the respondents to rescind the impugned clarification dated 28.3.2018 and to consider their candidatures as they possess qualification higher than that is required under the Recruitment Rules and the employment notice dated 18.7.2017/notice dated 4.8.2017(ibid). The applicants also claimed that in the absence of any provision in the Recruitment Rules or in the employment notice dated 18.7.2017 as well as in the notice dated 4.8.2017 issued by the respondent-SSC that ―four year degree holders are not eligible for the post of Scientific Assistant in the India Meteorological Department‖, the impugned clarification dated 28.3.2018 amounts to changing the terms and conditions of the employment notice dated 18.7.1987/notice dated 4.8.2017, after the recruitment examination is over and Merit Lists are prepared and forwarded by the respondent-SSC and, therefore, the impugned clarification is bad, illegal and liable to be withdrawn by the respondent-Department. It was also claimed by the applicants that having possessed 4-year B.Tech Degree in Electronics & Communication Engineer/Computer Science Engineering/Information Technology/Electronics Engineering, and 4-year B.Sc.Engineering in the relevant disciplines, they can by no stretch of imagination be said to be ineligible for selection and appointment to the post Scientific Assistant, for which qualification of 3-year Diploma in Electronics & Communication Engineer/Computer Science Engineering /Information Technology/Electronics Engineering, or 3-year Bachelor's Degree in Science (with Physics as one of the subject) after 10+2 has been prescribed in the Recruitment Rules/employment notice dated 18.7.2017 and notice dated 4.8.2017 (ibid).

4.6 The respondents having failed to consider and take any decision on the applicants' representations, emails and legal notice, the applicants have filed the present O.A.

In the above context, it has been contended by Mr.M.K.Bhardwaj, learned counsel appearing for the applicants, that the respondent-Department has acted illegally and arbitrarily in clarifying that ―four year degree holders are not eligible for the post of Scientific Assistant‖. By issuing the impugned clarification dated 28.3.2018, the respondent-Department has changed the rules of recruitment process, after the competitive examination was over and the merit lists were prepared and forwarded by the respondent-SSC, which is impermissible in law. Neither the Recruitment Rules nor the employment notice dated 18.7.2017/notice dated 4.8.2017 (ibid) stipulated that ―four year degree holders are not eligible for the post of Scientific Assistant‖, and, therefore, the impugned clarification is unsustainable in the eyes of law. It has also been contended by Mr.M.K.Bhardwaj that in the year 2011 the respondent-Department had initiated the process of recruitment to the post of Scientific Assistant and, on the basis of selection and recommendation made by the respondent-SSC, appointed a number of candidates having 4-year B.Tech in Computer Science/Information Technology/Computer Applications/Electronics and Telecommunication Engineering. This clearly goes to show that the respondent-Department has acted illegally and arbitrarily in taking a view that 4-year degree holders are ineligible for selection and appointment to the post of Scientific Assistant during the recruitment process initiated vide employment notice dated 18.7.2017. In support of his contentions, Mr.M.K.Bhardwaj has relied on the following decisions:

(i) State of Haryana vs. Abdul Gaffar Khan, (2006) 11 SCC 153, where the post in question was of Unani Dispenser. The qualification prescribed was:

(i) Unani Dispenser from any recognized Unversity/Institution or Board or Faculty of Indian System of Medicine established by law in India or Upvaidya of any recognized University/Institution or Board or Faculty of Indian System of Medicine established by law in India having the knowledge of Urdue;

(ii) Matric or its equivalent.

(iii) Knowledge of Hindi and English up to Matric standard.

The respondent-candidates possessed the qualification of Bachelor of Unani Medicine and Surgery from Kanpur University apart from Matric with Hindi and 10+2 with Science. The Hon'ble Spreme Court held that the Haryana Ayurvedic/Homeopathic and Unani Technical Group ( C ) Service Rules, 1977 do not exclude the degree in Unani Medicines and Surgery for the post of Unani Dispenser, and that the respondent-candidates possessed the requisite qualifications from recognized University/Institution or Board and were eligible for appointment on the post of Unani Dispenser.

(ii) Jyoti K.K. and others vs. Kerala Public Service Commission, (2010) 15 SCC 596, wherein the appellants were holders of B. Tech. degree in electrical engineering or bachelor's degree in electrical engineering. On the basis that the appellants did not possess the necessary qualifications, the Commission held that they were not eligible for selection. In the writ petitions, the same having been challenged, it was contended that they possessed higher qualifications and, therefore, non-consideration of their cases was incorrect. They sought for a direction to the Commission to consider them as eligible candidates. It was also pointed out that ever since the inception of the Board, persons possessing higher qualifications have been considered and appointed in terms of Rule 13(1) of the Kerala State and Subordinate Services Rules, 1956 and the Board having accepted higher qualifications to be applicable in all such cases could not have excluded them in the present cases. The Hon'ble High Court dismissed the writ petitions. Allowing the Civil Appeals, the Hon'ble Supreme Court has held that if a person had acquired higher qualifications, such qualifications would presuppose acquisition of the lower qualification. A degree holder would be eligible to apply for a post, where the minimum qualification prescribed was diploma. When the position was not clear and the rules did not per se disqualify holders of the higher qualifications, it would be appropriate to hold that those with the higher qualifications would be eligible. Paragraphs 7,8 and 9 of the judgment reads thus:

―7. It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for that post in order to attract that part of the rule to the effect that such of those higher qualifications which presuppose the acquisition of the lower qualifications prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far.

Under the relevant rules, for the post of Assistant Engineer, degree in Electrical Engineering of Kerala University or other equivalent qualification recognized or equivalent thereto has been prescribed. For a higher post when a direct recruitment has to be held, the qualification that has to be obtained, obviously gives an ind ication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of Sub-Engineer. In that view of the matter the qualification of degree in Electrical Engineering presupposes the acquisition of the lower qualification of diploma in that subject prescribed for the post, shall be considered to be sufficient for that post.

In the event the Government is of the view that only diploma holders should have applied to post of Sub-Engineers but not all those who possess higher qualifications, either this rule should have excluded in respect of candidates who possess higher qualifications or the position should have been made clear that degree holder shall not be eligible to apply for such post. When that position is not clear but on the other hand rules do not disqualify per se the holders of higher qualifications in the same faculty, it becomes clear that the rule could be understood in an appropriate manner as stated above. In that view of the matter the order of the High Court cannot be sustained. In this case we are not concerned with the question whether all those who possess such qualifications could have applied or not. When statutory rules have been published and those rules are applicable, it presupposes that everyone concerned with such appointments will be aware of such rules or make himself aware of the rules before making appropriate applications. The High Court, therefore, is not justified in holding that recruitment of appellants would amount to fraud on the public.‖

(iii) Parvaiz Ahmad Parry vs. State of Jammu & Kashmir & others, CWP NO.13368/2015, decided on 6.11.2015, the Hon'ble Supreme Court has held that while the minimum qualification prescribed for the post of J&K Forest Service Range Officers Grade I (Forest) was a B.Sc. (Forestry or an equivalent degree from any University recognized by the ICAR, a candidate with a higher qualification was equally eligible. Thus, a B.Sc. candidate with Forestry as a major subject and M.Sc. in Forestry was eligible. It was observed:

―25. In our view, if a candidate has done B.Sc. in Forestry as one of the major subjects and has also done Masters in the Forestry, i.e., M.Sc. (Forestry) then in the absence of any clarification on such issue, the candidate possessing such higher qualification has to be held to possess the required qualification to apply for the post. In fact, acquiring higher qualification in the prescribed subject, i.e., Forestry was sufficient to hold that the appellant had possessed the prescribed qualification. It was coupled with the fact that Forestry was one of the appellant's major subjects in graduation, due to which he was able to do his Masters in Forestry.‖

(iv) Manjit Singh vs. State of Punjab & others, CWP No.451/2008, a Full Bench of the Hon'ble High Court of Punjab & Haryana has held that a candidate possessing a higher degree in the same line cannot be denied consideration for selection, though he does not hold the lower qualification.

Per contra, Mr.H.K.Gangwani, learned counsel appearing for the respondents, has contended that the qualifications prescribed in the Recruitment Rules as well as in the employment notice cannot be in any manner whittled down and a different qualification cannot be adopted. The applicants not having admittedly possessed the qualification of 3-year Bachelor's Degree in Science (with Physics as one of the subject)/Computer Science/Information Technology/Computer Applications or 3-year Diploma in Electronics and Telecommunication Engineering from a recognized Institution/University or equivalent, as prescribed in the Recruitment Rules and in the employment notice, are ineligible to be considered for selection and recruitment to the post of Scientific Assistant. It has also been contended by Mr.H.K.Gangwani that in 2011 recruitment process, the respondent-Department had recruited 311 Scientific Assistants. In view of duties and responsibilities attached to the post of Scientific Assistant, four months integrated training was imparted to those appointees. This training was given to these appointees on full salary basis along with other admissible allowances. Out of 311 Scientific Assistants recruited in 2011, 80 Scientific Assistants having four year B.Tech degree have resigned from the respondent-Department. Apart from huge financial loss caused to the Government of India in the form of expenses incurred for imparting training, a manpower shortage also aroused due to such resignation of Scientific Assistants holding 4-year B.Tech degree. Considering this aspect of the matter, and in view of clear stipulation in the Recruitment Rules and in the employment notice with regard to qualification required for the post of Scientific Assistant, the respondent-Department has issued the clarification dated 28.3.2018 that ―four year degree holders are not eligible for the post of Scientific Assistant‖, and the recruitment of any persons having 4-year B.Tech in Computer Science/Information Technology/Computer Applications/Electronics and Telecommunication Engineering in the year 2011 would not clothe the applicants with any right, much less an enforceable right, to claim that they are eligible for selection and appointment to the post of Scientific Assistant and to assail the clarification dated 28.3.2018. In support of his contentions, Mr.H.K.Gangwani has relied on the following decisions:

(1) Dr.M.S.Mudhol and another vs. S.D.Halegkar and others, (1993) 3 SCC 591, wherein the statutory recruitment rules prescribed the essential qualifications of (i) Master's degree with at least 2nd Division from a recognized university or equivalent; (ii) a degree in teaching from recognized university or equivalent; and (iii) experience of 10 years' teaching as a Vice Principal/P.G.T. in a Higher Secondary School or Inter-College. The recruitment rules also stipulated that the condition with regard to the 2nd Division was relaxable in the case of candidates belonging to the same school and also in the case of SC and ST candidates. The desirable qualifications were: (i) experience in administrative charge of a recognized Higher Secondary School/Inter-College; (ii) Doctorate Degree; and (iii) M.Ed. degree from a recognized university. The 1st respondent possessed M.A. degree in Political Science with 3rd class with 41.1% aggregate marks and M.Ed. in second class. The Hon'ble Supreme Court held that the contention of the respondents that M.A with 2nd Division was equivalent to M.Ed. with second Division was fallacious. The former was the academic qualification while the latter a professional qualification. The statutory rule with regard to the essential qualifications was very clear inasmuch as it required both academic Masters' degree and the teaching degree; the latter being not the substitute for the former. What is further, while laying down the qualifications with regard to the academic degree, viz., the Masters' degree, the rule insists upon 2nd Division for such degree. It does not insist upon a second division degree in teaching. A pass degree in teaching is sufficient in its eyes. It would, therefore, amount to distorting the requisite qualifications under the rules, to attempt to substitute the teaching qualification for the academic qualification and exchanging the divisions of the two. It was, thus, concluded by the Hon'ble Supreme Court that the 1st respondent did not have the requisite educational qualifications to be selected for the post of Principal.

(2) Ashish Kumar vs. State of Uttar Pradesh and others, (2018) 3 SCC 55, wherein the Hon'ble Supreme Court has held that any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription, and that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence.

(3) Union of India and another vs. Internal Trading Co. and another, (2003) 5 SCC 437, wherein the Hon'ble Supreme Court, after considering the facts and circumstances of the case, has held that a party cannot claim that since something wrong has been done in another case, direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their cases on some other basis and not by claiming negative equality.

(4) Vishal Properties (P)Ltd. vs. State of Uttar Pradesh and others, (2007) 11 SCC 172, wherein the Hon'ble Supreme Court has held that the authorities might have acted in an irregular manner in case of some others, but that does not confer any legal right on the appellant to claim a similar benefit.

After having given our thoughtful consideration to the rival contentions, we have found considerable merit in the contentions of the applicants.

The Recruitment Rules and the employment notice dated 18.7.2017/notice dated 4.8.2017 issued by the respondent-SSC stipulated the minimum essential educational qualification of Bachelor's Degree in Science (with Physics as one of the subject)/Computer Science/Information Technology/Computer Applications or Diploma in Electronics and Telecommunication Engineering from a recognized Institution/University or equivalent. It was also stipulated that the qualifying degree or diploma should be in first class (60% marks) or 6.75 CGPA on a 10 point scale and must be of 3 (three) years duration after 10+2 examination, and that the candidate must have passed 10+2 examination from a recognized Board or equivalent in Science with Physics and Mathematics as core subjects. It is not in dispute that the applicants possessed the qualification of 4-year B.Tech degree in Electronics & Communication Engineer/Computer Science Engineering /Information Technology/Electronics Engineering and 4-year B.Sc.Engineering in the relevant disciplines, with first class (60% marks) or 6.75 CGPA on a 10 point scale and passed 10+2 examination from a recognized Board or equivalent in Science with Physics and Mathematics as core subjects. Thus, the question that arises for our consideration is as to whether the applicants or any other candidates possessing 4-year B.Tech degree/4-year B.Sc. Engineering in the relevant disciplines are ineligible for selection and appointment to the post of Scientific Assistant in IMD. Similar question came up for consideration of the Hon'ble Supreme Court in Jyoti K.K. and others vs. Kerala Public Service Commission (supra), wherein Their Lordships have held that if a person has acquired higher qualification in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualification prescribed for any post. Similar view has also been taken by the Hon'ble Supreme Court in State of Haryana vs. Abdul Gaffar Khan (supra) and in Parvaiz Ahmad Parry vs. State of Jammu & Kashmir & others (supra) and by a Full Bench of the Hon'ble High Court of Punjab & Haryana in Manjit Sigh vs. State of Punjab & others (supra). Therefore, we have no hesitation in holding that the 4-year B.Tech/B.Sc. Engineering degree in the relevant disciplines possessed by the applicants is higher than the 3-year Bachelor's Degree in Computer Science/Information Technology/Computer Applications and 3-year Diploma in Electronics and Telecommunication Engineering, and that the applicants are eligible for selection and appointment to the post of Scientific Assistant. Furthermore, the Recruitment Rules neither specifically exclude the 4-year B.Tech/B.Sc. Engineering degree in the relevant disciplines as the minimum essential educational qualification for the post of Scientific Assistant, nor do the same stipulate that holders of 4-year B.Tech/B.Sc.Engineering degree in the relevant disciplines are ineligible for selection and appointment to the post of Scientific Assistant. The employment notice dated 18.7.2017/notice dated 4.8.2017 issued by the respondent-SSC also did not specifically stipulate that 4-year B.Tech/B.Sc.Engineering degree holders, like the applicants, would be ineligible for selection and appointment to the post of Scientific Assistant. Thus, the respondent-Department cannot be held to be justified in issuing the impugned clarification dated 28.3.2018 that ‗four year degree holders are not eligible for the post of Scientific Assistant', more so when the respondent-SSC had admittedly conducted the recruitment examination and declared the result of thereof, and had submitted the Merit Lists to the respondent-Department by 28.3.2018.

The decisions relied on by Mr.H.K.Gangwani, learned counsel appearing for the respondents, besides being out of context, do not go to support the stand taken by the respondents.

In the light of our above discussions, we have no hesitation in holding that the impugned clarification dated 28.3.2018 (Annexure A/1) issued by the respondent-Department is unsustainable in the eyes of law and liable to be quashed. Accordingly, we quash the same and direct the respondent-Department to consider the candidatures of the applicants and other similarly placed candidates for selection and recruitment to the post of Scientific Assistant on the basis of their merit positions in the competitive examination held by the respondent-SSC pursuant to the Notice of Recruitment of Scientific Assistant in India Meteorological Department Examination, 2017.

Resultantly, the O.A. is allowed. No costs.