Union Of India vs Sreenivasa.J

Petitioner No.1 to 3 have filed the present writ petition challenging the order passed by the Central Administrative Tribunal, Bengaluru Bench

(hereinafter referred to as ‘the Tribunal’) in Original application No.298/2014 dated 17.03.2015.

We have heard the learned counsel appearing for the petitioners and the respondent.

The gist of the case is that, the Chairman, Railway Recruitment Board, Bengaluru, issued a notification calling for the application for 24 posts of

Health and Malaria Inspectors by making communal reservation under the prescribed Rules. Respondent belongs to OBC category and he appeared

for the exams conducted by the petitioners and was declared as pass and was found qualified. Thereafter, he was asked to attend for document

verification before the Railway Recruitment Board (hereinafter called as ‘RRB’, for short) and an offer for appointment has also been issued

for the said post. Subsequently, by order dated 17.01.2014, the offer of appointment was cancelled on the ground that, on a further verification by the

petitioner No.2, it was found that the respondent did not possess requisite qualification as per para 165 of IREM Vol.I. But however, one Shri.Subhash

S, who was having the degree in B.Sc.(Biochemistry) and one Smt. Shali P. who has obtained degree in B.Sc.(Polymer Chemistry) have been

appointed to the said post. Questioning the same, respondent approached the Tribunal.

The Tribunal after considering the facts and circumstances declared the applicant as qualified enough for the recruitment and as such, quashed the

order dated 17.01.2014 and directed the petitioners to offer him the employment within two months. Challenging the same the petitioners are before

this Court.

It is the submission of the learned counsel for the petitioners that the Tribunal has committed a grave error in holding that the degree obtained by the

respondent is a qualifying degree and the Tribunal without there being any jurisdiction, against the opinion of expertised body, has come to a wrong

conclusion and as such the same is liable to be set aside. It is his further contention that the petitioners have clearly stated in the employment notice

that the required qualification should be B.Sc.(Chemistry) and other conditions. Under such circumstances, cancellation of appointment made after

verification of the documents and the certificates is justified. Without considering the said facts, the Tribunal has committed an error in ignoring the

contents and conditions embodied in the notification regarding the minimum educational qualification. On these grounds he prayed to allow the writ

petition and to set aside the impugned order of the Tribunal.

It is the submission of the learned counsel for the respondent that the notification issued by the Railway Recruitment Boards has prescribed the

qualification to the Health And Malaria Inspector Grade-III as B.Sc. having studied chemistry as a main/optional subject in any branch of chemistry

while undertaking the course plus other qualifications. After considering the qualification, the respondent was called for the interview and offer of

appointment has also been given in this behalf. Without there being any opportunity to the respondent and by violating the provisions of Article 14 of

the Constitution, by order dated 17.01.2014, the offer of appointment was cancelled. It is his further submission that the Railway Recruitment Board

comes within the definition of the ‘State’ under Article 12 of the Constitution and the said Board cannot make any discrimination in appointment

of such persons. It is his further contention that one Shri. S. Subhash, who is qualified in B.Sc.(Biochemistry) and Smt. Shali P. who has obtained

B.Sc. (Polymer Chemistry) have been appointed to the post of Health and Malaria Inspector. Under such circumstances, cancellation of offer of

appointment on the ground that, on future verification it was found that respondent did not possess requisite qualification, violates Article 14 of the

Constitution. In order to substantiate the said contention, he relied upon the decision in the case of Basheshar Nath Vs. Commissioner of Income Tax,

Delhi and Rajasthan and another reported in AIR 1959 SC 149. It is his further contention that the qualification mentioned in the advertisement is the

requisite qualification which was possessed by the candidate and on the basis of the same if an appointment order has been given, it would not likely to

disturb the decision which has been already taken. The decision taken by the petitioner seems to be based on extraneous or irrelevant consideration or

actuated by mala fides or irrational and perverse or manifestly wrong. Under such circumstances, the Court can reach out its lethal arm and strike

down the decision of such authority. In order to substantiate the said contention, he relied upon the decision in the case of Mohammad Shujat Ali and

Others Vs. Union of India and Others reported in (1975) 3 SCC 7.6 It is his further submission that, when a prescribed rule requires a candidate to

hold a particular degree and the candidate is holding an equivalent degree, then under such circumstances, he is eligible to appear for the examination

and entitled to be appointed to the said post. In order to substantiate the said fact, he relied upon the decision in the case of Dr.Ramesh Chandra Vs.

State of Rajasthan reported in 1978 (1) SLR 154 and also the decision in the case ofD r. Rama Sevak Singh Vs. Dr. U. P. Singh and Ors. reported in

(1999) 2 SCC 189. It is his further submission that, once a candidate is qualified, has got through in the exams and has been appointed, then the

conditions of eligibility should not be viewed too technically. In this behalf, he relied upon the decision in the case of Uma Shankar Sharma Vs. Union

of India and Others reported in (1980) 3 SCC 202. He further submitted that, if the Expert Committee, which has selected the candidate, has found

that he is qualified and adequately it was in compliance with the academic qualification prescribed, the same has to be confirmed holding that it is in

accordance with Rules and it cannot be disturbed. In order to substantiate his said contention, he relied upon decision in the case of Bhagwan Singh

and Another Vs. State of Panjub and Others reported in (1999) 9 SCC 573. It is his further submission that, already other candidates, who have

obtained similar degrees, have already been appointed. Now the respondent is aged about 39 years and since from 2013 he is awaiting for the orders

of appointment. If no such order is issued, more prejudice is going to be caused to the respondent. On these grounds, he prayed to dismiss the writ

petition.

We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.

Before going to consider the points in controversy, it is well settled proposition of law that the selection must be regulated in accordance with the

Rules and Orders which are in force as on the date of advertisement. They are the Rules governing the selection and appointment of the eligible and

qualified candidates in accordance with law. As could be seen from the records made available, the Government of India, Ministry of Railways,

Railway Recruitment Boards, Centralized employment notification CEN02/2019 shows that the notification has been issued for recruitment of eligible

candidates with requisite qualifications. But as per the Indian Railway Establishment Manual, the qualification for the post of health and malaria

inspector is B.Sc. (Chemistry) plus

(a) One year Diploma of Health/Sanitary inspector or

(b) One year National Trade Certificate (NTC) in Health Sanitary Inspector awarded by National Council for Vocational Training, Ministry Of

Labour and Employment, Government of India, New Delhi. As could be seen from the Indian Railway Establishment Manual, it authorized for

relaxation of the said Rules and in this behalf a clarification has also been sought as per the letter dated 18.01.2013 and it was clarified by the

Government of India, Ministry of Railways, through letter No.E(NG) II/207/RR-1/49 dated 02.08.2013, stating that candidates who have studied

Chemistry as a main or optional subject while undertaking B.Sc. course are eligible for consideration for induction in Railway service to the post of

Health and Malaria Inspector, Grade-III. On the basis of the said clarification, notification has also been issued prescribing the minimum educational

qualification as B.Sc. having studied Chemistry as main/optional subject in any branch of Chemistry while undertaking the course plus other requisite

qualification. On the basis of the said advertisement, the respondent applied and examination was also conducted and was found qualified and offer of

appointment also came to be issued.

Under such circumstances, it can be safely held that the said appointment was in accordance with the then existing rules and candidates who apply

and undergo the written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained

in the advertisement unless the advertisement itself indicates a contrary intention. For this proposition of law, I rely upon the decision in the case of N.

T. Bevin Katti Vs. Karnataka Public Service Commission and Others reported in AIR 1990 SC 1233. At para No.11 it has been observed as under:

“11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts,

and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further

indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the

then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered

for selections in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention.

Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on

the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during

the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or

not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either

by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance

with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case

having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders. Lest there be any confusion, we would like

to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he

is eligible and is otherwise qualified in accordance with the relevant Rules and the terms contained in the advertisement, he does acquire a vested right

for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited

right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature.â€​

On close reading of the said paragraph, it clarifies that a candidate on making application in pursuance to an advertisement does not acquire any

vested right, but if he is eligible and he is otherwise qualified in accordance with the relevant rules and the terms and conditions contained in the

advertisement, he cannot be deprived of that limited right by subsequent amendment that he is not qualified by giving a retrospective effect. What

were the rules of games which were in existence as on the date of advertisement the same has to be stick up and if he possesses the requisite

qualification, the same has to be considered.

Subsequent clarification or amendment of the Rules would have no application to the ongoing recruitment process already initiated and has to be

completed under the old Rules and the notification and the process of appointment has to be finalized accordingly. For this proposition of law, I want to

rely upon decision in the case of P. Mahendran and Others Vs. State of Karnataka and Others reported in (1990) 1 SCC 411. As could be seen from

the records, the advertisement which has been made by the Railway Recruitment Board has not been challenged by anybody contending that it is in

violation of the Indian Railways Establishment Manual. When once the candidate is qualified in terms of the notification, then the appointment order

has to be issued in his favour.

Though it is contended by the learned counsel for the petitioners that the Tribunal without any jurisdiction and against the opinion of the expertise

body has traveled beyond and has given a finding, but as could be seen from the order of the Tribunal in its entirety, though such observation has been

made, it also well settled proposition of law that the Court cannot go through the syllabi and come to the conclusion that the said syllabi studied covers

the requisite qualification, which is beyond the jurisdiction of the Court. It is only the experts who have to consider that aspect academically and the

Court is not having the requisite qualification in that behalf. Under such circumstances, the said observation of the Tribunal does not stand to the

proposition of law of the Hon’ble Apex Court. But however, the ultimate decision which has been taken in this behalf is not perverse or illegal.

When the recruitment notification prescribes the qualification stating that, if a candidate is having B.Sc. with Chemistry as main/optional subject in any

branch of Chemistry while undertaking the course and as could be seen from the records, the candidate is having B.Sc. (Biochemistry) as one subject

plus diploma in Sanitary Inspector. Even as could be seen from the letter dated 18.01.2013, including the name of the respondent, along with three

others, the Chief Personnel Officer asked for clarification and a clarification has been issued by letter dated 02.08.2013 stating that candidates who

have studied chemistry as a main/optional subject shall be eligible for consideration for induction in railway services. The said clarification letter does

not even say that the respondent, whose clarification was also sought, is not qualified and thereafter the appointment order has also been issued to the

respondent and subsequently by order dated 17.01.2014, the offer of appointment was cancelled. The said act of the petitioner appears to be beyond

the scope. In the case of Mohammad Shujat Ali and Others quoted supra, it has been observed at para No.13 as follows:

“13. This contention has been adequately dealt with in the judgment given by the division Bench of the Andhra Pradesh High Court on 23rd

February, 1968 in Writ Petition No. 645 of 1967 and other allied petitions and the judgment of the Full Bench impugned in these appeals. We are

substantially in agreement with the reasons which have weighed with the Division Bench and the Full Bench in rejecting this contention. It must be

noted that the question in regard to equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the

relevant academic standard, and practical attainments of such qualifications and where the decision of the Government is based on the

recommendation of an expert body which possesses the requisite knowledge, skill and expertise for adequately discharging such a function, the Court,

uninformed of relevant data and unaided by the technical insights necessary for the purpose of determining equivalence, would not lightly disturb the

decision of the Government. It is only where the decision of the Government is shown to be based on extraneous or irrelevant considerations or

actuated by mala fides or irrational and perverse or manifestly wrong that the Court would reach out its lethal arm and strike down the decision of the

Government. Here in the present case it cannot be said that the view taken by the Government of Andhra Pradesh that US and OCE certificates of

the Osmania Engineering College were not equivalent to US or OCE diploma of the College of Engineering, Guindy or LCE, LME or LEE diploma of

any other recognised institution suffered from any of these infirmities. It was based on the re-commendation of an expert high powered body like the

State Board of Technical Education consisting of distinguished administrators, educationists and technical experts against whom nothing could be

alleged on behalf of the petitioners/appellants. The State Board of Technical Education included inter alia Principals of different engineering colleges in

the State, the Secretary of the Regional Committee of the All India Committee on Technical Education, retired Chief Engineers as also Chief

Engineers in office who would be expected to be familiar with the academic standards and practical content of the different qualifications and the

decision taken by the Government of Andhra Pradesh on the basis of the recommendation of the State Board of Technical Education could not be

regarded as unreasonable or perverse or manifestly wrong nor could it be said to be mala fide or based on extraneous or irrelevant considerations.

Indeed, the Government of Andhra Pradesh could not do better than rely on the recommendation of the State Board of Technical Education. The Full

Bench as well as the Division Bench of the Andhra Pradesh High Court have in fact shown in their respective judgments, on a comparison of the

duration and content of the respective courses, that US and OCE certificates of the Osmania Engineering College, were both from the point of view

of academic learning as also from the point of view of practical experience, inferior to US or LCE diploma of the College of Engineering, Guindy or

LCE, LME or LEE diploma of any other recognised institution. It may also be pointed out that even in the erstwhile State of Hyderabad itself, US and

OCE certificates of the Osmania Engineering College were not treated on a par with LCE, LME or LEE diploma. Firstly, an Overseer holding US or

OCE certificate of the Osmania Engineering College was required to put in at least six years, service before he could be eligible for promotion as

Supervisor while a Sub-Overseer holding LCE or LME diploma did not have to put in any minimum qualifying service for the purpose of promotion as

Supervisor. Secondly, US or OCE certificate of the Osmania Engineering College was regarded as sufficient qualification only for recruitment to the

post of Sub-Overseer, while LCE or LME diploma qualified for recruitment not only to the post of Sub-Overseer but also to the post of Supervisor. It

is, therefore, not possible to overturn the decision of the Government of Andhra Pradesh denying equivalence of US and, OCE certificates of the

Osmania Engineering College with LCE, LME or LEE diplomas. It may be noted that the Central Government also affirmed the decision of the

Government of Andhra Pradesh by its letter dated March 17, 1966. Even if it be assumed that the Central Government had the exclusive power under

the States Reorganisation Act, 1956 to bring about integration of services in the reorganised State of Andhra Pradesh, this decision of the Central

Government, contained in the letter dated March 17, 1966 is sufficient to meet. the requirement of the statute and it must be upheld for the same

reasons as the decision of the Government of Andhra Pradesh. There was a further ground of attack levelled against the decision of the Central

Government, albeit, faint-heartedly, and that was that the decision of the Central Government was arrived at solely on the basis of the communication

dated 9th January, 1965 addressed by the Additional Secretary to the Government of Andhra Pradesh to the Secretary to the Government of India,

Ministry of Home Affairs without giving any opportunity to the non-graduate Supervisors from the erstwhile Hyderabad State to put forward their

case. This charge is plainly unsustainable as it is evident from paragraph 9 of the affidavit dated July 27, 1970 filed by K. P. Singh, Under Secretary to

the Government of India, Ministry of Home Affairs in reply to Writ Petition No. 385 of 1969, and it can hardly be disputed, that the representations

made by the non-graduate Supervisors from the erstwhile Hyderabad State against the decision of the Government of Andhra Pradesh contained in

the Order dated October 3, 1960 were forwarded to the Central Government and it was after giving due consideration to these representations on the

basis of the recommendations of the Advisory Board which consisted of experts, that the Central Government affirmed the decision of the

Government of Andhra Pradesh by its letter dated March 17, 1966. The present contention of the petitioners/appellants. must, therefore, be

rejected.â€​

Therein, it has been observed that the question regarding equivalence of educational qualification is a technical question based on proper

assessment and evaluation of relevant academic standards and practical attainments of such qualification and where the decision of the Government is

based on the recommendation of the expert body, then the Court uninformed of the relevant date and unaided by technical insights necessary for the

determining equivalence, would not likely to disturb the decision of the Government unless it is based on extraneous or irrelevant consideration or

actuated by mala fides or irrational and perverse or manifestly wrong. By going through the records, it reveals that, on similar consideration one S.

Subhash, who was having a B.Sc. (Biochemistry) and Smt. Shali P. who is having B.Sc.(Polymer Chemistry) have been appointed and already they

are serving.

Under such peculiar facts and circumstances of this case, we are of the considered opinion that the order dated 17.01.2014 canceling the

appointment of the respondent appears to be mala fide and it also violates Article 14 of the constitution. If any such order has to be passed, it could

have been done before verification is done. After completing the process, it cannot go back and tell the candidate that he is not qualified to be

appointed to the said post.

Looking from any angle, the contentions taken up by the petitioners does not stand to any reason and it is not having any force and the same is

liable to be rejected.

We have carefully and cautiously perused the order of the Tribunal. Though the Tribunal has traveled beyond its jurisdiction and has come to the

conclusion that the applicant is a better qualified person with B.Sc. Chemistry as a basic qualification, but however, it has come to a right conclusion

and though there is no detailed discussion, but it has quashed the impugned order dated 17.01.2014 and directed the respondents therein to offer him

the employment within two months. In that light, it does not require any disturbance.

Though by order dated 17.03.2015, the Tribunal directed the petitioners (respondents therein) to offer employment to the respondent (applicant

therein) within two months from the date of the order, but subsequently, when the petitioners approached this Court, stay has been granted. In that

light, petitioner No.2 is directed to give appointment order in accordance with law within a period of two months from today.

Keeping in view the above said facts and circumstances, the petition is devoid of merits and the same is liable to be dismissed.

Accordingly it is dismissed.