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Judgment
Om Prakash VII, Member (J)
By means of present O.A., the applicant has sought the following reliefs:-
“(i) This Hon’ble Tribunal may be pleased to quash and set aside the impugned order dated 28.06.2022 passed by respondent No. 4 (Annexure A-1) to this compilation 1).
(ii) This Hon’ble Tribunal may be pleased to direct the respondents to appoint the applicant on the post of Postal Assistant under Agra Division of the Postal Department.
(iii) Any other relief which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case, may be given in favour of the applicant.
(iv) Award the costs of the original application in favour of the applicant”.
The brief facts of the case are that in pursuance of notification issued by the respondent No.2 for the post of Sorting Assistant/Postal Assistant in UP Circle, applicant submitted application and applicant was successful in the examination and secured first rank amongst all the selected candidates. He was called for document verification. Applicant appeared before the respondents on 22.12.2009 for document verification. Respondent No.3 issued a list for training of the selected candidates but the name of the applicant was not included. Being aggrieved, applicant sent an application dated 27.04.2010 requesting therein that he may be allowed to attend the training. Respondent No. 4 vide its letter dated 04.05.2010 informed the applicant that Madhyama examination is not recognized under Council of Board of School Education and he has not passed 12th class with English as a compulsory subject. Against the aforesaid order, applicant sent his representation, when which was not decided, he filed OA No. 505/2011 before this Tribunal. The aforesaid OA was heard and finally disposed off vide order dated 10.05.2011 directing the respondents to decide the grievance of the applicant by a reasoned and speaking order. In compliance of the direction of this Tribunal, respondents passed the speaking order dated 27.06.2011 but applicant was not appointed. Being aggrieved, applicant again filed OA No. 1029/2011, which was finally decided on 26.05.2022 with the observation that respondents shall reconsider the matter. Respondents in compliance of direction of the Tribunal dated 26.05.2022 passed the impugned order dated 28.06.2022, which was under challenge in this OA.
Per contra, learned counsel for the respondents filed counter affidavit wherein it has been submitted that the applicant passed the Madhyama Examination in the year 2004 from Bihar Sanskrit Shiksha Board, Patna, and the Upshastri Examination in the year 2006 from Shri Kameshar Singh Darbhanga Sanskrit University. These qualifications are not recognized by the Council of Boards of School Education in India. The required qualification for the post is 10+2 (12th class) with English as a compulsory subject, which the applicant has not fulfilled. Thus, he is not entitled for any benefit from this Tribunal, therefore, his OA is liable to dismissed.
Rejoinder affidavit has also been filed by the applicants in which the applicants have reiterated the facts as stated in the OA and denied the contents of the counter affidavit. Nothing new has been asserted in the rejoinder affidavit.
We have heard Shri Ashish Srivastava, learned counsel for the applicant and Shri Vimal Kumar Rai, learned counsel for the respondents and perused the record.
Referring to the facts disclosed in the OA which have been quoted in preceding paragraphs of the judgment, learned counsel for the applicant argued that claim of the applicant was rejected illegally. Applicant was fulfilling the educational qualification, due to this reason he was permitted to appear in the examination. Respondents at later stage of the selection process cannot reject the candidature of the applicant. Opinion formed by the respondents in deciding the matter is not in accordance with the facts and law. Applicant had earlier approached before this Tribunal and OA was disposed of directing the competent authority to decide the case afresh in the light of observations made in the judgment but observation of the Tribunal recorded in the judgment was not taken into consideration and relief claimed by the applicant was rejected. To substantiate his argument, learned counsel for the applicant referred to the judgment and order passed in OA No. 1029 of 2011 and further argued that OA be allowed, impugned order be set aside and respondents be directed to appoint the applicant.
Learned counsel for the respondents argued that the applicant applied for the post of Postal Assistant in the Agra Division. He had passed the Madhyama Examination from Bihar Sanskrit Shiksha Board, Patna, and the Upshastri Examination from Shri Kameshar Singh Darbhanga Sanskrit University. However, these qualifications are not recognized by the Council of Boards of School Education in India. Learned counsel for the respondents further argued that as per the recruitment rules, a candidate must have passed 10+2 (12th class) with English as a compulsory subject. The applicant did not meet this requirement, as he had not passed 12th class with English as a compulsory subject, thus, he is not entitled for the appointment on the aforesaid post. Learned counsel for the respondents also argued that initially, 40% weightage was mistakenly calculated based on Madhyama Examination marks (equivalent to Matriculation/Secondary level). However, as per the rules, weightage should have been calculated based on Upshastri Examination marks (equivalent to 12th class). After correction, the applicant’s weightage was recalculated as 26.58%, which was insufficient to place him among the top 10 candidates in the merit list for UR category vacancies. Learned counsel for the respondents next argued that the first meritorious candidate in the UR category had an Intermediate percentage of 90.4%, and the last selected candidate had 81.85%. Since the applicant’s marks were significantly lower than other, he was not eligible for issuance of a hall permit to appear for the computer and aptitude tests. Consequently, his name was not included in the final selection list, despite being called for document verification. Learned counsel for the respondents contended that based on the departmental rules and merit-based selection process, the applicant did not qualify for the post of Postal Assistant, therefore, he is not entitled to be appointed.
We have considered the rival submissions advanced by learned counsel for the parties and have gone through the entire records.
There is no dispute with the fact that the applicant passed Madhyama Examination in the year 2004 from Bihar Sanskrit Shiksha Board Patna and Upshastri Examination in the year 2006 from Shri Kameshar Singh Darbhanga Sanskrit University Kameshwar Nagar, Darbhanga. It is also undisputed that as per advertisement 10+2 qualification with English as compulsory subject was essential qualification for the post. In para 10 of OA No. 1029/2011 filed by the applicant, Tribunal had observed as under:-
“10. Although the matter has been adjudicated once with a direction to the competent authority amongst the respondents to decide this matter in accordance with rules by way of reasoned and speaking order, and the competent authority has done so, since this matter is quite old, we deem it appropriate to dispose it off with a direction to the Senior Superintendent of Post offices, Agra Division, Agra to reconsider the matter in the light of the fact that the applicant did study English as one of the subjects in his school leaving examination, even though it may have been as an optional subject. The spirit behind the rules appears to be that the Postal Assistants should have a good working knowledge of English in view of the duties they are called upon to perform. Keeping in view this spirit, instead of taking technical view, let the competent authority i.e. Senior Superintendent of Post Offices, Agra Division, Agra, In accordance with rules, take a decision afresh in the matter finally by way of a fresh reasoned and speaking order within a period of four months from the date of this order. While deciding the matter afresh the competent authority may take a pragmatic view in the matter including the fact that the applicant has successfully cleared the selection examination. We expect the competent authority to exercise an independent application of mind and be guided strictly by rules and our limited observations made above while disposing of this OA.”
The Hon’ble Supreme Court in the case of Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 has held as under:-
“9. 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 recognised 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 indication 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.
However, we must notice one aspect of the matter. The diploma holders who had been selected by the Public Service Commission have already been appointed and, therefore, it would not be appropriate for us to disturb those appointments. They shall continue in such appointments. Such of those eligible degree holders who fulfil the qualifications referred to above and found suitable to be appointed shall be appointed taking note of the vacancies which are available within a period of three months from the date of receipt of this order”.
Although in OA No. 1029 of 2011, direction was given to the competent authority/respondents to consider the case of the applicant but in view of the ratio laid down in the cases of Jyoti K.K. (supra), eligibility criteria fixed in the advertisement cannot be relaxed. Only direction to the competent authority amongst the respondents to reconsider the case of the applicant has been given. Observation recorded by the respondents in the impugned order in our considered view need no interference as from the perusal of marksheet of the applicant, eligibility criteria of compulsory English in 10+2 exam was not fulfilling. Applicant has not studied compulsory English. No any concrete evidence has been adduced by the applicant to establish that Institution wherefrom applicant have obtained the degree was recognized from Council of Board of School Education. It is clarified that in OA NO. 1029 of 2011, no observation has been made that applicant has completed his 12th examination with compulsory English, thus, OA lacks merits and is not liable to be allowed. Accordingly, OA is dismissed. No order as to costs. All associated MAs are disposed of.