South Western Railway and Others vs Fakruddin Baba Sahib and Others

A.S. Bopanna, J.—Respondents No. 1 and 2 who are aggrieved by the action of the petitioners herein in not considering them for the appointment to the post of Section Engineer notified under Employment Notice No. 2/08 had assailed the same before the Central Administrative Tribunal (the "CAT" for short) in OA No. 516/2009. The CAT by its order dated 27/07/2011 has allowed the OA setting aside the action of the petitioners herein.

The fact that respondents No. 1 and 2 had obtained B.Tech. degree in Electrical and Electronics Engineering by the Jawaharlal Nehru Technological University, Hyderabad (A.P.) is not in dispute. The fact that they had undergone the said course through the School of Continuing and Distance Education is also not in dispute. The petitioners had not considered the respondents No. 1 and 2 on the ground that the degree obtained by them was not recognized by the All India Council for Technical Education (the AICTE'' for short).

Hence, the only question for consideration is as to whether the non-recognition of the degree obtained by respondents No. 1 and 2 by the AICTE would debar them from being considered for the post of Section Engineer as notified by the petitioners herein.

The CAT while considering this aspect of the matter has kept in view the decision of the Hon''ble Supreme Court in the case of Bharathidasan University and Another Vs. All India Council for Technical Education and Others, and has allowed the application holding that the degree would be valid though not recognised by AICTE. The consideration herein therefore is as to whether the CAT was justified in relying on the said decision so as to apply the same to the facts that arose for consideration in the instant case.

The applications were invited under the Employment Notice No. 2/2008 at Annexure-A4 to the application. In the said notification, as against the minimum educational qualification that was indicated for the post of Section Engineer/Electrical (GS), the degrees as indicated therein was sought for and it was indicated that it should be recognised by the AICTE. Therefore, the only question that was required to be determined was as to whether a person possessing degree which was not recognised by the AICTE would also be eligible under the Employment Notice No. 2/2008. The CAT no doubt has relied on the decision in the case of Bharathidasan University (supra). A perusal of the said judgment would indicate that the question of law that had arisen before the Hon''ble Supreme Court in the said case was as to whether the Bharathidasan University which was the appellant before the Hon''ble Supreme Court created under the Bharathidasan University Act, 1981, having its area of operation over the districts of Tiruchirappalli, Thanjavur and Pudukottai in the State of Tamil Nadu should seek prior approval of AICTE to start a department for imparting a course or programme in technical education or a technical institution as an adjunct to the University itself to conduct technical courses of its choice and selection. In that view, on consideration of different provisions under the Act, the Hon''ble Supreme Court had arrived at the conclusion that the University need not seek approval of AICTE for conducting distance education courses.

If the said decision of the Hon''ble Supreme Court is kept in view, in our opinion, the same would not be apposite for the purpose of consideration of the issue herein. We are of the said opinion for the reason that irrespective of the different degrees being granted by different Universities or Institutions, ultimately it is for the employer to seek for an appropriate degree relevant for the job to be performed in such employment.

In such situation, when an advertisement is taken out and the requisite qualification is indicated therein, only such of those persons possessing such degrees as prescribed in the notification would be eligible to apply thereto. It is no doubt true that even if a person is of the opinion that the degree obtained by him also is to be considered as a recognised degree or that it is equivalent to the degree that has been sought lay the employer in the notification, such person can only feel aggrieved at the stage when he makes an application and it would always be open for the said person to challenge the notification itself by contending that a degree possessed by him is also equivalent or should be recognised by the employer who had issued the notification. Only in such situation, the issue with regard to equivalence or the recognition or otherwise of the degree would arise for consideration.

In the instant case, it is not in dispute that respondents No. 1 and 2 have not challenged the notification, but have responded to the notification and applied keeping in view the requirement that has been sought in the said notification. If that be the position, when in the notification it has been clearly indicated that the degree possessed by the persons who are to apply in response to the notification should be recognised by the AICTE and when respondents No. 1 and 2 were aware that the degree obtained by them was awarded by the Jawaharlal Nehru Technological University is under the distance education course and had not been recognised by the AICTE, if at all the respondents No. 1 and 2 had any grievance, they could have only assailed the notification even before applying in response to the notification. Instead, respondents No. 1 and 2 who applied, cannot now be heard to approbate and reprobate having taken part in the selection process by applying as against the notification, despite not possessing the requisite degree as it did not have the recognition by the AICTE which was a requirement under the Employment Notice.

If the said aspect of the matter is kept in view, in the instant facts, respondents No. 1 and 2 could not have assailed only the subsequent communication which had been issued to them, indicating that their candidature cannot be considered. In the present circumstance, the decision relied upon by the CAT would not enure to the benefit of respondents. Therefore, the ultimate order passed by the CAT based on the said decision would also not been sustainable.

Accordingly, the order dated 27.07.2011 passed by the CAT impugned herein being not sustainable is set aside.

The writ petition is allowed in the above terms.