Rekha And Ors. vs Union Of India (Uoi) And Ors. ...
2007 Latest Caselaw 600 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition challenges the order dated 21st January, 2006 of the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the 'CAT') by which the CAT quashed the advertisement issued by the Respondent No. 2, Kendriya Vidyalaya Sangathan, which prescribed B.Ed. as educational qualification for the appointment to the post of primary teachers and that those candidates who possessed B.Ed as an educational qualification were also held eligible for appointment and were permitted to submit application. The relevant portion of the advertisement prescribing the eligibility reads as follows:

i) Senior Secondary (Class XII) with 50% marks:

ii) JBT after Senior Secondary (Class XII or B.Ed. or equivalent or B.EL. Ed.

iii) Proficiency in teaching through Hindi and English Media (will be judged by way of descriptive type written examination of 10th Standard.)

2. For the sake of convenience, we have taken up facts of the W.P. (C) No. 15098-100/2006 which are similar and illustrative of the issue involved in the WP(C) Nos. 4708/2006 and 9994-10022/2006. The brief facts of the case as stated by the petitioner are as follows:

a) On 12th February 2005, the respondent No. 2 issued an advertisement inviting applications from the candidates for the post of primary teachers. The advertisement prescribed inter alia B.Ed. as an educational qualification for the appointment to the said post.

b) On 23rd May 2005 the examination was conducted for filling up the said posts. The petitioners, who are all qualified with B.Ed. and thus fulfillled the criteria laid down in the advertisement issued on 12th February, 2005 had applied in terms of the advertisement and participated in the examination.

c) Subsequently the results were declared, the petitioners qualified and were declared successful in the examination.

d) The respondents No. 3 and 4 who were also unsuccessful aspirants however filed an application being O.A. No. 2141/2005 before the CAT challenging the participation of B.Ed. qualified candidates in the Selection process. The respondents No. 3 and 4 pleaded that NCERT had prescribed a minimum qualification and that B.Ed. was not one of the essential qualifications prescribed for the appointment on the post of the primary teachers.

e) That CAT, by its order dated 21st February 2006 quashed the advertisement dated 12th February 2005 and held that the candidates who possessed B.Ed. and other educational qualifications without possessing JBT or equivalent qualifications are liable to be excluded and directed the respondents No. 1 and 2 to issue a fresh advertisement for filling of the post of primary teachers to the exclusion of the candidates who possess B.Ed. and other higher educational qualifications without possessing JBT or equivalent qualifications.

3. The learned Counsel for the petitioner Mr. R. S. Hedge submitted as follows:

a) The order dated 21st February 2006 is contrary to the law laid down by the Hon'ble Supreme Court in Yogesh Kumar and Ors. v. Govt. of NCT, Delhi and Ors. . In Yogesh kumar's case (supra) the qualification of B.Ed. was not prescribed in the advertisement but in spite of the same, the candidates possessing B.Ed. degree had applied for the post of the primary teachers were excluded from the selection and appointment to the said post whereas, in the present case, the B.Ed was prescribed as a qualification in the advertisement prospective candidates for the said post. Further, there is no provision under the Act or the rules framed there under which prohibits the authority from prescribing B.Ed. as a qualification. He relied upon the position of law laid down by the Hon'ble Supreme Court in Yogesh Kumar's case (supra) , the relevant paragraph of which reads as follows:

5. The Division Bench of the Delhi High Court in the impugned judgment has dealt with the above two arguments in great detail. IN our considered opinion, it has rightly come to the conclusion that B.Ed. qualification, although a well-recognized qualification in the field or teaching and education being not prescribed in the advertisement, only some of the B.Ed. candidates who took a chance to apply for the post cannot be given entry in the fild of selection. We also find that the High Court rightly came to the conclusion that teacher training imparted to teachers for B.Ed. course equips them for teaching higher classes. A specialized training given to teachers for teaching for small children at primary level cannot be compared with training given for awarding B.Ed. degree. Merely because primary teachers can also earn promotion to the post of teachers to teach higher classes and for which B.Ed. is the prescribed qualifications, it cannot be held that B.Ed. is a higher qualification than TTC. Looking to the different nature of TTC qualification, the High Court rightly held that it is not comparable with B.Ed. degree qualification and the latter cannot be treated as higher qualification to the former.

8. This last argument advanced also does not impress us at all. Recruitment to public services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. Merely because in the past some deviation and departure was made in considering the B.Ed. candidates and we are told that was so done because of the paucity of TTC candidates, we cannot allow a patent illegality to continue. The recruitment authorities were well aware that candidates with qualification of TTC and B.Ed. are available yet they chose to restrict entry for appointment only to TTC-pass candidates. It is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. So far as B.Ed. qualification is concerned, in the connected appeals (CAs Nos. 1726-28 of 2001) arising from Kerala which are heard with this appeal, we have already taken the view that B.Ed. qualification cannot be treated as a qualification higher than TTC because the nature of the training imparted for grant of certificate and for degree is totally different and between them there is no parity whatsoever. It is projected before us that presently more candidates available for category. Whether for the aforesaid reasons, B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates for the present vacancies advertised as eligible. In our view, the Division Bench of the Delhi High Court was fully justified in coming to the conclusion that B.Ed. candidates were rightly excluded by the authorities from selection and appointment as primary teachers. We make it clear that we are not called upon to express any opinion on any B.Ed. candidates appointed as primary teachers pursuant to advertisements in the past and our decision is confined only to the advertisement which was under challenge before the High Court and in this appeal.

Thus, the respondent No. 2 was within its powers in prescribing B.Ed. as an educational qualification and the CAT has erred in quashing the advertisement.

b) The respondents No. 3 to 5 have admittedly participated in the selection process and after being unsuccessful have challenged the qualification and the selection process without impleading the successful candidates. Therefore, this petition is contrary to the law laid down by the Hon'ble Supreme Court in the case All India SC and ST Employees' Association v. A. Arthur Jeen and Ors. . The relevant portion of the said judgment reads as follows:

13. Although the candidates included in the panel showing their provisional selection do not get vested right to appointment, they will be surely interested in protecting and defending the select list. It is the admitted position that before the Tribunal the successful candidates whose names were included in the panel of selection were not made parties. The argument of the learned Counsel that since the names and particulars of the successful candidates included in the panel were not given, they could not be made parties, has no force. The applicants before the Tribunal could have made efforts to get the particulars; at least they ought to have imp leaded some of the successful candidates may be in a representative capacity; if the large number of candidates were there and if there was any difficulty in service of notices on them, they could have taken appropriate steps to serve them by any one of the modes permissible in law with the leave of the Tribunal. This Court in Prabodh Verma and Ors. v. State of Uttar Pradesh and Ors. has held that in writ petitions filed against the State questioning the validity of recruitment of a large number of persons in service could not be proceeded with to hear and take decision adverse to those affected persons without getting them or their representatives imp leaded as parties. In para 50 of the said judgment, summarizing the conclusions this Court in regard to impleading of respondents has stated that:

A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties.

14. This Court in para 4 of the judgment in A.M.S. Sushanth and Ors. v. M. Sujatha and Ors. has stated thus:

We find that none of the persons who were selected and whose appointments were set aside by the High Court had been imp leaded as a party-respondent. It appears that a public notice was given in a representative capacity only with regard to the appointment to the post of Assistant Sericulture Officer. The direction of the High Court, however, is not confined to that post alone and it is the appointments to he other posts also which have been set aside. This could not be done. The principles of natural justice demanded that any person who was going to be adversely affected by the order should have had an opportunity of being heard. That apart, one would have expected the High Court to have considered the report submitted under Section 65 on its merits and then decided whether the said report should be accepted or not.

c) The CAT has failed to appreciate that though under the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools), Regulations 2001, (hereinafter referred to as the 'Regulations') have been framed for recruitment of teachers it only prescribes the minimum academic and professional qualification. There is no bar under the Act or the Rules which prescribe any other qualification in addition to the minimum qualification prescribed in the regulation. In the advertisement, the candidates possessing B.Ed. were also made eligible for applying to the post of primary teacher. Therefore, the petitioners were entitled to apply and be considered to the said post.

d) The application filed by the respondent No. 3 to 5 is liable to be dismissed on the ground of delay as the advertisement was issued on 12th February 2005 and the selection process with the written examination had commenced in May 2005 and the results were declared on 5th September, 2005.

4. The learned Counsel for the respondents submitted as follows:

(a) The petitioner has concealed material facts from this Court as the petitioner invited the applications from the candidates having B.Ed. as qualification for recruitment to the post of Primary Teacher against the regulations framed by the National Council for Teacher Education.

b) The regulations are applicable for recruitment of teachers in all formal schools established, run, aided by the Central or State Government and other authorities for imparting education at the elementary, secondary and senior secondary stages. The Regulation provides interalia for Diploma or Certificate in Basic Teacher Training of the duration of not less than 2 years or the Bachelor of Elementary Education (B.El.Bd.) as qualification for recruitment to the post of Primary Teacher. The relevant portion of the Regulation reads as follows:

i) Senior Secondary School Certificate or Intermediate or its equivalent; And

ii) Diploma or Certificate in basic Teacher Training of a duration of not less than two years or Bachelor of elementary Education (B.El.Ed.).

But the Kendriya Vidyalaya Sangathan (petitioner in WP(C) No. 4708/2006 petitioner prescribed the following essential qualifications for recruitment to the post of Primary Teachers, in its advertisement dated 12th February 2005:

i) Senior Secondary (Class XII) with 50% marks.

ii) JBT-after Senior Secondary (Class XII) of B.Ed. of equivalent or B.El.Bd.

c) The petitioner in its counter affidavit before the CAT took a stand that the Kendriya Vidyalya Sangathan follows the Regulations and Rules of Government of India but its has failed to comply with the said rules and regulations.

d) The present case is squarely covered by the decision of a Division Bench of this Court in Ataul Haque v. Govt. of India and Ors. 2001 III AD (Delhi) 159 which was upheld by the Hon'ble Supreme Court in Yogesh Kumar's case(supra). The petitioner has also acted contrary to the mandate of the position of law laid down by the Hon'ble Supreme Court in Yogesh Kumar's case, where it was held that consideration of the qualification other than the prescribed qualification even though it was a B.Ed. degree, cannot be considered as a qualification for the appointment to the post of P rimary Teacher.

5. After considering the submissions made by the learned Counsel for the parties, we are of the view that once the respondents 3 to 5 had taken a chance by participating in the selection process and failed to get selected, it was not open to them to challenge the conduct and the results of the examination subsequently. This position of law has also been laid down by the Hon'ble Supreme Court in Chandra Prakash Tiwari and Ors. v. Shakuntala Shukla and Ors. which however was not cited. The relevant portion of the said judgment reads as follows:

32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status - the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhawan pertaining the doctrine of Estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla (Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. 1986 Suppl. SCC 285, a Three Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a Petition challenging the said examination would not arise.

33. Subsequently, the decision in Om Prakash stands followed by a later decision of this Court in Madan Lal and Ors. v. State of JandK and Ors. , wherein this Court as below:

9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this state there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves selected to have emerged successful as a result of the combined performance both at written test and oral interview, they have filed this petition. it is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla (1986) Suppl SCC 285 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.

10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee.

34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not 'palatable' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.

6. It is also the contention of the respondents No. 3 to 5 that since the candidates holding B.Ed as qualification who were not eligible for appointment to the post Primary Teachers had been allowed to participate in the said examination and continued to remain in consideration zone for such selection, it deprived the respondents 3 to 5 of their legal rights of fair consideration for the post of Primary Teachers. The respondents No. 3 to 5 did not fail but were kept lower in the merit list due to the unwarranted intrusion above them of the B.Ed. degree holders. Thus it can not be said that the respondents failed the examination. The above plea of the respondent is not tenable as it is an aspirant who participates in the selection process and does not succeed who is debarred from challenging such process in light of the above position of law laid down in the judgment of the Hon'ble Supreme Court in Chandra Prakash Tiwari's case (supra). The non-selection whether on ground of a cut off applied by the method of number of vacancies required to be filled in accordance with merit in the examination (as in the present case) or a failure in the selection process is thus of no relevance.

7. In the light of the above position of law, the challenge by unsuccessful candidates to the process of selection i.e. the issue of deficient advertisement could not have been canvassed by such candidates and entertained by the CAT. The CAT ought to have dismissed the OA on this ground alone and consequently the impugned judgment cannot be sustained.

8. Further, the learned Counsel for the respondents has relied upon the position of law laid down by the Hon'ble Supreme Court in Yogesh Kumar's case (supra) to submit that consideration of a qualification other than a prescribed qualification even though it was a B.Ed Degree, cannot be considered as a qualification for the appointment to the post of the Primary Teacher. But, in our view the position of law laid down in Yogesh Kumar's case (supra) cannot be applied in the facts and circumstances of the present case as in Yogesh Kumar's case, the advertisement inviting applications for appointment to the post of Primary Teachers did not prescribe, B.Ed as one of the qualifications for appointment to the post of Primary Teacher, whereas in the present case the advertisement dated 12th February, 2005 prescribed B.Ed as one of the qualifications for appointment to the post of Primary Teacher. Further, in Yogesh Kumar's case it was held that recruitment to public services should be held strictly in accordance with the terms of the advertisement and recruitment rules, if any. The advertisement dated 12th February, 2005 did prescribe B.Ed as one of the qualifications for appointment to the post of Primary Teachers. Thus, the selection of the petitioners cannot be found fault with.

9. Consequently, the writ petition is allowed and the impugned order of the CAT dated 21st January, 2006 is set aside.

10. A copy of this judgment be placed in the files of connected writ petitions being WP(C) 4708/06 and WP(C) 9994-10022/06.