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Judgment
ORDER
By Hon'ble Manish Garg, Member (J)
The instant Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, challenging the validity of advertisement No.DMRC/PERS/22/HR/2023(14) dated 08.02.2023 issued by respondent-Delhi Metro Rail Corporation (DMRC) Limited on the ground that the same is violative of Articles 14 and 16 of the Constitution of India. The impugned advertisement has been issued by DMRC for filling up one vacancy of the post of Legal Assistant on direct recruitment basis.
Brief facts of the case are that the respondent-DMRC had even issued a recruitment advertisement similar to the impugned advertisement in terms of which the DMRC sought to recruit candidates to the post of Legal Assistant. The eligibility criteria prescribed in each advertisement was “LL.B with minimum 50% from a Govt. recognized University/Institute or National Law School.” The applicant is not challenging the earlier advertisement but is relying on the same only to draw a comparison between these two advertisements.
On 08.02.2023, DMRC issued the impugned advertisement to fill up 1 (one) (tentative) vacancy for the post of Legal Assistant on direct recruitment basis. Last date of submission of applications was 01.03.2023. The eligibility criteria prescribed was follows:
“Full time B.A. L.L.B/B.Sc. LLB/B.Com LLB/BBA LLB Five years integrated programme from a Govt. recognised University/Institute of repute with a minimum of 80% marks/equivalent CGPA.”
Aggrieved by the arbitrary and unreasonable eligibility criteria, the applicant seeks indulgence of this Tribunal inter alia on the following grounds:
The impugned advertisement is discriminatory inasmuch as it keeps away the candidates who have acquired a 3 year-degree in law after completing 3 year degree in any other course of study.
ii) The impugned advertisement has sought to draw a distinction between 5 years integrated LLB graduates and 3 years LLB graduates which is not only unreasonable but also has no reasonable nexus with the object sought to be achieved.
iii) The applicant, who has acquired a 3 year Degree in Law, is in no way different from a candidate who has studied 5 year Degree in Law as far as eligibility for employment or for enrolment is concerned. Hence, the impugned advertisement is discriminatory in nature and violative of Article 14 of the Constitution of India.
iv) The Hon‟ble High Court of Hyderabad in the case of S.M. Saifullah v. The Registrar General, High Court of Judicature at Hyderabad, [W.P. No.24806 of 2017, decided on 31.07.20170] in respect of recruitment of Law Clerks in the Hon‟ble High Court of Judicature at Hyderabad held that 3 year LLB course graduates must be treated at par with 5 year LLB course graduates.
The eligibility criteria of 80% in the qualifying examination for the post of Legal Assistant is extremely high and arbitrary which in turn deprives a larger section of the qualified candidates like the applicant from applying for the said post.
vi) The eligibility criteria prescribed by DMRC in an earlier advertisement was “LL.B with minimum 50% from a Govt. recognized University/Institute or National Law School.”
vii) In the impugned advertisement DMRC has drifted away from the eligibility criteria prescribed earlier in 2019. Such an eligibility criterion is arbitrary, unreasonable, excessively high and has no reasonable nexus with the object sought to be achieved. The same is therefore, liable to be struck down being arbitrary and violative of Articles 14 and 16 of the Constitution of India.
vii) It is a settled law that the eligibility must be reasonable, rational and based on objective standards and it should not be such as to narrow the field of selection to a large number of persons.
Feeling aggrieved by the impugned advertisement, the applicant has filed the instant OA, seeking the following relief(s):
“a)Issue an appropriate direction setting aside the Impugned Advertisement dated 08/02/2023 (Annexure P1); and
b)Issue a direction to the Respondent DMRC to issue a fresh recruitment advertisement for the said post of Legal Assistant permitting 3 year LLB degree holders to apply for the said post and reducing the minimum aggregate marks in the LLB examination to a reasonable level in line with the earlier notification of the DMRC in respect of the same post; or
c)In the alternative, direct the Respondent DMRC to issue a corrigendum to the Impugned Advertisement dated 08/02/2023 permitting 3 year LLB degree holders to apply for the said post and reducing the minimum aggregate marks in the LLB examination to a reasonable level in line with the earlier notification of the DMRC in respect of the same post; and
d)Direct the Respondent DMRC to further extend the last date of application for the position of Legal Assistant; and/or
e)Such other and/or further order/orders be passed as to this Honourable Court mat deem fit and proper.”
Per contra, Shri V.S.R. Krishna, learned counsel for the respondents vehemently opposed the contentions of the applicant and filed a short affidavit on behalf of the respondent-DMRC, wherein, at the outset, it has been submitted that the present OA is misconceived and lacks merit. It is for DMRC to fix its standards of recruitment. Moreover, it is a settled law that the Hon‟ble Court/Tribunal, while exercising the powers of judicial review, shall not venture into the domain of administration, especially on the aspect of issuance of advertisement and prescription of qualifications thereof. As such, this Tribunal may not re-write the advertisement and on this ground alone the OA is liable to be dismissed.
The applicant has approached this Tribunal, inter alia, with a prayer for quashing and setting aside the advertisement dated 08.02.2023 for recruitment to the post of Legal Assistant in DMRC with a further prayer for amending the impugned advertisement to permit 3 year LLB degree holders and reducing the minimum aggregate marks in the LLB examination to a reasonable level, but is not permissible as already brought out above. Hence the OA is liable to be dismissed.
It is no more res integra that it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess the same, as has been held by the Hon‟ble Supreme Court in the case of Chief Manager, Punjab National Bank & Anr. v. Anit Kumar Das, [Civil Appeal No.3602/2020]. It has been held that a greater latitude has been permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an Institution and the Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications.
The respondent-DMRC have further relied on the decision of the Hon‟ble Supreme Court in the case of Maharashtra Public Service Commission, through its Secretary Vs. Sandeep Shriram Warade & Ors., reported in (2019) 6 SCC 362, where the Hon‟ble Apex Court had held that the essential qualifications for appointment to a post is for an employer to decide, according to the needs and nature of work. Paragraph-9 of the judgment of the Hon‟ble Apex Court is reproduced below:
“9.The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive rewriting of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”
The respondents have further relied upon the decision of the Hon‟ble Supreme Court in Union of India v. Pushpa Rani & Ors., (2008) 9 SCC 242, where the Hon‟ble Apex Court has held at para 37 as follows:
“37.Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.”
It has been further submitted that DMRC, being a Government organisation, has to be transparent and fair in its dealings and cannot discriminate against any prospective candidate, in any manner whatsoever. There is no discrimination or arbitrariness in prescribing the essential qualifications required of a candidate for the post in question, as the respondent, as an employer is the best judge to decide the suitability level of the prospective candidates. The advertised eligibility criterion is general and has been bonafidely decided.
The educational qualification criterion of requirement for a five-year integrated programme has been laid down with a view to have a certain quality standard of resource base and to ensure a good grounding in law. With a plethora of law colleges in the country, a certain standard was felt necessary to be laid down. The insistence on 80% marks/CGPA again is based on the requirement of a candidate with a high calibre.
It has further been submitted that the applicant has come up with his objections. Other prospective candidates would have their own issues. If such objections were to be entertained, there would be no end to the process and DMRC would be open to kowtowing to unreasonable demands.
Regarding applicant‟s reliance on previous recruitment and the criteria therein, it is the employer‟s right to modify its requirement depending on situations. DMRC has from time to time changed the criterion of various posts and any static criterion cannot be insisted upon. Besides, the previous recruitment was for 04 number of posts and was a part of the bulk recruitment process. Post COVID, DMRC had to curtail its requirements as is reflected in the fact that the present recruitment is for only one post.
In view of the above position, the respondent-DMRC have submitted that there is no merit in the OA which is liable to be dismissed.
Heard learned counsel for the parties, perused the pleadings on record and the written submissions filed by the learned counsel for the applicant.
5. Analysis:
In Civil Appeal Nos. 2217-2218 of 2022 Indresh Kumar Mishra and Ors. Versus The State of Jharkhand & Ors. decided on 13.04.2022, the Hon‟ble Apex Court has held as under:-
“As per the settled proposition of law, in the field of education, the Court of Law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the matter. 6.6 In the present case, the educational qualifications required has been specifically mentioned in the advertisement. There is no ambiguity and/or confusion in the advertisement providing educational qualification and the post for which the applications were invited (History/Civics). There cannot be any deviation from the educational qualifications mentioned in the advertisement. Once having found that the respective writ petitioners – appellants herein were not having the requisite qualification as per the advertisement, namely, the Postgraduate/Bachelor degree in History, which was the requirement as per the advertisement and thereafter their candidature was cancelled, both the learned Single Judge as well as the Division Bench of the High Court have rightly refused to interfere with the same. We are in complete agreement with the view taken by the learned Single Judge and the Division Bench of the High Court.”
Further in Civil Appeal No. 7721 of 2021 (Arising out of SLP (Civil) No.5792 of 2020) titled as Madhya Pradesh Public Service Commission Versus Manish Bakawale & Ors. decided on 17.12.2021, it was observed by the Hon‟ble Apex Court that
“The Rule concerned provides for a definite process, which was also depicted in the advertisement calling for applications. The Rule is not under challenge. The candidate concerned had applied without demur and also furnished a declaration with regard to correctness of details provided. He cannot thereafter turn around to seek alteration of the position to the detriment of others.”
The applicant HAS himself submitted that he is not challenging the RR‟s and is only drawing a comparison between the earlier advertisement and the impugned advertisement. It is also not the case that his application has been rejected by the respondents. The present OA has been filed on 01.03.2023, which was the last date of submission of the application. As per the advertisement there is only one post under UR Category. Drawing inference to support his case from the earlier advertisement wherein the eligibility criteria prescribed by the DMRC in an earlier advertisement was “LL.B with minimum 50% from a Govt. recognized University/Institute or National Law School” and that the applicant was eligible as per the previous criteria.
We totally agree with the submissions made by the learned counsel for the respondents as highlighted above. The respondents - DMRC was well within its rights to alter the prescribed qualification for the post as per the changing needs of the organization. It is not for an organization to scale down its prescribed qualifications for a post simply to satisfy the qualifications possessed by any prospective candidate. In the present case, no right can accrue in anticipation.
Conclusion:
In view of the above analysis, we find that the present OA is devoid of merit and the same is accordingly, dismissed.
No order as to costs.