Delhi High Court

Girish Ahuja vs Kendriya Vidyalaya Sangathan & ... on 10 September, 2009

Author: Mukul Mudgal

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      W.P.(C) NO. 5361/2008


                                       Reserved on :      September 07, 2009
                                       Date of Decision : September 10, 2009


        Girish Ahuja                                  .....Petitioner
                                 Through : Mr. M.K. Bhardwaj, Advocate.


                     versus



        Kendriya Vidyalaya Sangathan & Ors.         .....Respondents
                               Through : Mr. S.Rajappa, Advocate,
                                          for respondent no.1.
                                          Mr. Sanjeev Sachdeva,
                                          Advocate, for respondent no.2.

CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MS. JUSTICE REVA KHETRAPAL


1.      Whether the Reporters of local papers
        may be allowed to see the judgment?       YES
2.      To be referred to the Reporter or not?    YES
3.      Whether the judgment should be
        reported in the Digest?                    YES

%                                JUDGMENT
                                  10-09-2009



    W.P.(C) No. 5361/2008                                         Page 1 of 12
 MUKUL MUDGAL,J.

1. This writ petition by the petitioner who is a former Air Force Officer

challenges the judgment of the Central Administrative Tribunal (for short

„CAT‟) dated 28th May, 2008 in OA NO. 2241/2007 dismissing his O.A.. By

the said OA, the petitioner had challenged respondent no.1, Kendriya

Vidyalaya Sangathan‟s decision declining to appoint the appellant to the post

of physical education teacher (PET for short), even though he was selected,

on the ground that he did not have the requisite qualification for the post due

to his not having secured B.P.Ed. or equivalent degree.

2. Thus the issue arising in the present writ petition is whether a physical

Training Instructor with 20 years experience in the Air Force whose

qualification has been determined by the Department of Personnel &

Training in the Ministry of Personnel, Public Grievance & Pensions,

Government of India to be equivalent to the qualification set out by the

respondents can be denied the appointment to the Kendriya Vidyalaya

Sangathan, a Government organization, by questioning of the said

equivalence determined by the expert body i.e. Department of Personnel &

Training.

3. The relevant facts for the determination of this appeal are as under: -

An advertisement was issued on 30th September, 2006 by the

respondent no.1, Kendriya Vidyalaya Sangathan for the post of PET and the

petitioner, who is a former Air Force personnel, appeared in the written

examination in which he qualified and subsequently also appeared in the

interview held on 21st August, 2007, but he was not selected as per the final

results declared. Upon an enquiry being made by the petitioner in R.T.I.

from the respondents, he was informed by the order dated 16th October, 2007

by the respondent no.1, that he was not selected due to his lacking the

requisite qualification stipulated in the Recruitment Rules for appointment to

the post of PET as any partial training in Physical Education cannot be

considered equivalent to Physical Education course run by Physical Training

Colleges.

4. The petitioner challenged the said order before the Central

Administrative Tribunal, leading to the impugned judgment dated 28 th May,

2008. The petitioner pleaded that he had served the Indian Air Force for

more than 20 years as Ground Training Instructor and had undergone and

successfully completed the prescribed training and passed the requisite

examination for equating his post with the civilian qualification, that is, of

physical training instructor and thus the certificate issued to him on 10 th

August, 2007 by the Indian Air Force made him eligible for appointment as

PET, as besides the equivalence determined by the Department of Personnel

& Training it was also considered as equivalent to B.P.Ed. by an office

memorandum issued by the Ministry of Labour, pursuant to which the

service trade/qualification of Ground Training Instructor of the Indian Air

Force had been equated with that of Sports Coach, Physical Instructor and

Umpire, and Referee. He, therefore, contended that since he fulfilled the

qualifications qua equivalence, he was denied the appointment on a wrong

premise. He also submitted that a similarly placed person having similar

qualifications as the petitioner, namely Sh. Prabu Narainan Yadav was

appointed as PET in the year 2003 and thus the respondent violated Articles

14 and 16 of the Constitution in denying him such appointment.

5. The case set up by the respondent was that the qualification prescribed

in the Recruitment Rules were as under: -

"University Degree with recognized Diploma in Physical Education or B.P.Ed from Laxmi Bai College of Physical Education or equivalent qualification. Distinguished sportsmen who have represented the Country in recognized National or International events may also be eligible for appointment on trial basis provided they possess the University Degree and the condition of possessing the Diploma in Physical Education or equivalent qualification shall not apply."

6. The respondent contended that the petitioner had only 20 years of

experience in the Indian Air Force as a Ground Training Instructor, which

was not equivalent to the post of Physical Education Teacher since it was not

equivalent to Diploma in Physical Education or B.P.Ed. or equivalent. The

appellant having undergone only partial training in physical education, could

not be considered as equivalent to a physical education course run by the

Laxmibai College of Physical Education.

7. In the rejoinder, the petitioner contended that apart from the

Department of Personnel & Training‟s determination of equivalence, the

Ministry of Labour and Employment's classification also clearly supported

his case and since the defence personnel were not awarded degrees like other

Universities but in fact given even better education coupled with practical

experience, therefore, classification had been made by the Government of

India, Ministry of Labour to decide the equivalence between the degrees and

diplomas and the training and experience of defence personnel. He, thus,

contended that the petitioner's qualifications were equivalent to those

prescribed for appointment to the post of PET and had in fact been so

determined by an expert bodies, i.e. Department of Personnel & Training in

the Ministry of Personnel, Public Grievance & Pensions and the Ministry of

Labour.

8. The relevant portion of the required qualification necessary to

determine the issue in this writ petition is reproduced as under: -

"University Degree with recognized Diploma in Physical

Education or B.P.Ed from Laxmi Bai College of Physical Education or equivalent qualification.

(emphasis supplied)"

9. By the letter dated 3rd April, 2008, the Kendriya Vidyalaya Sangathan

i.e. respondent no.1, had stated as under: -

"The petitioner was having the following qualifications as per his application:-

1. Graduate

2. 20 years experience as GTI in IAF.

The petitioner was not having the requisite prescribed qualification as per Recruitment Rules. The certificate of experience as Ground Training Instructor for 20 years in the IAF is not the substitute for the requisite prescribed qualification for the post.

In the KVS there is no post of PTI.

As per Recruitment Rules in vogue the petitioner is not eligible for the post of PET due to lack of prescribed essential qualifications."

10. The letter dated 10th August, 2007 which was a certificate of

competence issued by the Indian Air Force was also relied upon by the

petitioner and the following was stated in the said letter: -

"This is to certify that Service No. 704180-B Rank Sergeant Name Girish Kumar Ahuja has served in Indian Air Force from 22 Dec. 1986 to Till Date of Signing [i.e. 10.08.2008] in the trade (sic) of Gnd. Trg. Instr. He has undergone and successfully completed the prescribed training and passed the requisite examination at A.T.S. Belgaum (name of Institute) for equaling (sic) his post with Physical Training Instuctor."

11. The Tribunal, in our view, has erred in law in ignoring the equivalence

certified by the Department of Personnel & Training in the Ministry of

Personnel, Public Grievance & Pensions and the Ministry of Labour in

respect of a Ground Training Instructor.

12. In our view, the Tribunal has also erred in law in applying the

judgment of the Hon'ble Supreme Court in Basic Education Board, U.P. vs.

Upendra Rai and Others 2008 (2) SCT 49. The relevant portion of the said

judgment relied upon by the Tribunal is extracted as under: -

"17. The Hon‟ble Supreme Court in Basic Education Board U.P. vs. Upendra Rai and Others, 2008 (2) SCT 49 has observed as under:-

"14. The respondent admittedly got appointment after the Circular dated 11.8.1997 and hence this Circular applies to him. Admittedly, the respondent does not possess the qualification mentioned in the said Circular. He does not either possess BTC, Hindustani Teaching Certificate, JCT or Certificate of Teaching. The D.Ed. Certificate is no longer regarded as equivalent to BTC after the circular dated 11.8.1997. This was a policy decision of the U.P. Government, and it is well settled that the Court cannot interfere with policy decisions of the Government unless it is in violation of some statutory or constitutional provision. Hence, we are of the opinion that the respondent was not entitled to be appointed as Assistant Master of the Junior Basic School in U.P.

15. Grant of equivalence and/or revocation of equivalence in an administrative decision which is in the sole discretion of the concerned authority, and the Court has nothing to do with such matters. The matter of equivalence is decided by experts appointed by the government, and the Court does not have expertise in such matters. Hence it should exercise judicial restraint and not interfere in it.

(emphasis supplied)"

13. In our view paragraph 15 of the above judgment of the Hon‟ble

Supreme Court, far from helping the case of the respondent, in fact, supports

the case set up by the petitioner. The Directorate General of Employment

and Training in the Labour Ministry and the Department of Personnel &

Training in the Ministry of Personnel, Public Grievance & Pensions were the

concerned governmental authorities having the requisite experience and

expertise in the present case and the matter of equivalence was decided by

the said government departments. It is the Tribunal, which has not followed

the above position of law laid down by the Hon‟ble Supreme Court and

failed to see that it is the Kendriya Vidyalaya Sangathan which has ignored

the equivalence determined by the Government of India which was duly

qualified and competent to judge the said equivalence. The Kendriya

Vidyalaya Sangathan, being a government organization could not have

brushed aside such a determination by the Ministry of Labour. The Tribunal

has totally ignored the following averments in the Counter Affidavit before it

filed by the respondent:-

"The Kendriya Vidyalaya Sangathan follows Government of India rules and regulation in the manner of recruitment and reservation policy."

In light of the above averment, it is the respondent no.1 which ought

not to have questioned the equivalence determined by the Central

Government.

14. We must not lose sight of the fact that the qualification required by the

respondent themselves stated 'a Diploma in Physical Education or B.P.Ed.

from Laxmi Bai College of Physical Education or equivalent qualification.

The second part of the requirement also stated that distinguished sportsmen

appearing for the country could also be eligible for the appointment and for

them even the condition of possessing the Diploma in Physical Education or

Equivalent Education could be waived in appropriate cases.

15. We must also take note of the fact that the Tribunal has totally lost

sight of the fact that in the Armed Forces the level of fitness is far higher

than the civilian employment and the petitioner has no less than 20 years of

experience in the Indian Air Force as a Ground Training Instructor. The

Tribunal has unfortunately totally accepted the version put forward by the

respondent that only 20 years of experience in the Indian Air Force as

Ground Training Instructor was possessed by the petitioner. Far from being

a factor against the petitioner, this was a factor which should have weighed

in with the Tribunal that the petitioner was fully qualified and could and

should not have been denied appointment by the respondent on the ground of

his lack of qualification.

16. Furthermore, the Tribunal failed to give any credence to the plea put

forward by the petitioner that a similarly situated person, that is, Sh.Prabu

Narainan Yadav, possessing the same qualification had been appointed by

the respondent to the said post in the year 2003. The Tribunal has failed to

take note of the evasive answers of the respondent in stating that the said

respondent was not a party in the present petition. In our view, the

respondent was duty bound to answer this plea and the question of the said

Prabu Narainan Yadav, being a party would only arise if any relief was

claimed against him. In any case, the Tribunal has not even dealt with this

plea and in our view, has consequently wrongly held in favour of the

Kendriya Vidyalaya Sangathan.

17. The Tribunal also noticed that a notification dated 12 th February, 1986

was issued by the Ministry of Personnel, Department of Personnel and

Training, which prescribed a lower standard of selection which has to be

applied in the case of vacancies reserved for ex-servicemen. The relevant

portion of the said notification reads as under: -

"1. XXX XXX XXX XXX XXX XXX

2. In rule 6 of the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 (hereinafter referred to as the said rules), after Sub-rule (3), the following sub-rules shall be inserted, namely:

(a) For appointment to any reserved vacancy in Group C Posts,

a matriculate ex-servicemen (which term includes an ex- serviceman who has obtained the Indian Army Special Certificate of Education or the corresponding certificate in the Navy or the Air Force), who has put in not less than 15 years of service in the Armed Forces of the Union may be considered eligible for appointment to the posts for which the essential qualification prescribed is graduation and where,...."

Significantly, this notification gave the petitioner the requisite

equivalence required by the Respondent as it made his qualification

equivalent to graduation as the petitioner had put in 20 years of service.

18. However, this was brushed aside by the Tribunal stating that it has to

be applied only when sufficient candidates belonging to the category of ex-

servicemen are not available. We are surprised at this approach of the

Tribunal. This was not even the case set up by the respondent before it that

sufficient number of candidates in the category of ex-servicemen were not

available and the Tribunal has on its own relied on this premise to dismiss

the writ petition. The petitioner had applied as an ex-serviceman and the

above stipulation of the Department of Personnel could not have been

brushed aside by either the respondent no.1 which was on its own showing