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Judgment
Shri Chandra Prakash Khare-Respondent No. 1 is represented by Shri A.D. Prakash. Shri Sanjeev Kumar Namdeo is represented by Shri Abhishek Rai. Both Shri A.D. Prakash and Shri Abhishek Rai are allowed two week''s time to file counter affidavit. The Petitioner will have one week, thereafter, to file rejoinder affidavit. List on 18th March, 2011.
The educational qualification prescribed for E.D. Paker is Class-VIII; with preference to be given to the persons, who are matriculate. The Respondent No. 1 was selected on the basis of his marks in Class-VIII examination. His appointment was canceled after it was found that his marksheet was not genuine. The departmental enquiry was held exparte without giving any notice to him.
Shri Chandra Prakash Khare had earlier challenged the selection on which a direction was issued in O.A. by C.A.T. presided by Hon''ble S.R. Singh, J., the then Vice Chairman, C.A.T. that the selection be made on the basis of marks secured in High School examination.
In the scrutiny of marks Shri Sanjeev Kumr Namdeo- Respondent No. 3 was found to have secured 60.30 marks in Class-X, and was issued appointment letter. Shri Devendra Kumar Rawat at Sl. No. 4 (para 5 of the writ petition) made compliant that qualification of Technical Education Board of Shri Namdeo was not equivalent to High School. On the basis of the letter of the District Inspector of Schools and Government Order it was found that technical qualification of Shri Namdeo was equivalent to High School, and he was appointed.
In the impugned judgment of the Tribunal in O.A. No. 1649 of 2005, it has been found that the selection was to be made on the basis of High School examination in which Shri C.P. Khare has secured 50.50%. The contention of the department that he had produced the bogus certificate of Class-VIII examination was not accepted as the Tribunal found that the High School examination was preferential qualification. With regard to Shri Sanjeev Kumar Namdeo the Tribunal found that there was no requirement in the advertisement that qualification equivalent to matriculation will also be taken into consideration. The Tribunal relied upon the judgment in Yogesh Kumar and Others Vs. Government of NTC, Delhi and Others, and further found that the marksheet in Part-A with regard to theory subject was in second class. The direction has been issued to give appointment to applicant-Respondent No. 1 Shri C.P. Khare.
Prima facie we observe that the reasoning given by the Tribunal is not correct. Firstly the appointment of Shri C.P. Khare was cancelled on the ground that he had produced bogus marksheet of Class-VIII. In the enquiry in which his marksheet was found to be bogus, he was not associated nor any show cause notice was given to him before terminating his appointment. The order terminating the appointment of Shri C.P. Khare was, therefore, prima facie violative of principle of natural justice. Secondly we observe that the judgment in Yogesh Kumar''s case is not applicable to the present case as it is not necessary, where Government Order has been issued treating certain qualifications to be equivalent to matriculation, that it should be specified in the advertisement that the qualification equivalent to matriculation will be taken into consideration. There are number of technical qualifications, which are treated as equivalent to matriculation and all those qualifications unless there is specific requirement of the job as in the case of B. Ed. and B.T.C, where the equivalence cannot be assumed, there is nothing to show that E.D. Paker''s job requires special qualification, which can be fulfilled only by person, who is matriculation and not person, who has equivalent qualification.
We may also observe that even if the qualification of Shri Sanjeev Kumar Namdeo was required to be considered only of Group-A subjects, in which he was awarded second class marks and has High School certificate in Second Class given by the Board of Technical Education, his marks in Group ''A'' alone should have been taken into consideration. The marks of trade test or the marks (100%) awarded for discipline could not be added to treat marksheet with 60.20%, and further that if Shri Namdeo was not to be selected, then Shri Devendra Kumar Rawat has better marks as against both Shri Khare and Shri Sanjeev Kumar Namdeo.
Having regard to the circumstances, we stay the operation of the impugned judgment dated 29th October, 2010 in O.A. No. 1649 of 2005. If Shri Sanjeev Kumar Namdeo is working, he shall not be allowed to work until further orders of the Court.