Delhi High Court
Mahesh Kumar vs Directorate (Medical), Delhi ... on 15 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No.1743/2016
Reserved on: 6th January, 2017
% Date of Decision: 15th March, 2017
MAHESH KUMAR ....Petitioner
Through Mr. O.P. Gehlaut, Advocate.
Versus
DIRECTORATE (MEDICAL), DELHI E.S.I. CORPORATION NEW
DELHI & ORS ....Respondents
Through Mr. Yakesh Anand and Ms.
Sonam Anand, Advocates for the ESIC.
Mr. Vivek Goyal, CGSC with Ms. Vanya
Khanna, Advocate for the UOI.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. CHANDER SHEKHAR
SANJIV KHANNA, J.
The Employees State Insurance Corporation (ESI Corporation, for
short), had issued an advertisement dated 2 nd June, 2010, pursuant to which
the petitioner-Mahesh Kumar had applied for selection to the post of
Librarian Grade-II.
2. The petitioner was called for an interview and had appeared before the
Selection Board on 21st September, 2010.
3. As per the selection list dated 5th October, 2010, four candidates were
selected and shortlisted. The petitioner's name did not figure in the said list,
for as per the respondents, he did not fulfil the minimum eligibility
qualification stipulated in the Recruitment Rules.
4. Aggrieved, the petitioner in OA No. 1058/2013 had challenged the
selection list dated 5th October, 2010 and rejection of his candidature before
the Principal Bench of the Central Administrative Tribunal (Tribunal, for
short). OA No. 1058/2013 has been dismissed by the impugned order dated
2nd September, 2014.
5. The short and the precise issue, which arises for consideration, is
whether the petitioner meets and satisfies the eligibility qualification
prescribed for the post of Librarian Grade-II as enumerated in the Employees
State Insurance Corporation (Library Staff) Recruitment Rules, 1978 (Rules,
for short). As per the Rules, there are two categories of Librarian staff i.e.
Librarian Grade-II and Librarian Grade-I. The essential educational
qualifications for Librarian Grade-I and Librarian Grade-II are as under:-
"Grade-I (Direct Recruitment)
1. Graduate with degree or diploma for Library Science (one
years course after Graduation) of a recognized.
2. Two years experience in a public college, University or
Departmental Library.
Promotion
Librarian Grade-II with five years' service in the Grade
rendered after appointment thereto on a regular basis.
Librarian Grade-II (Direct)
Matric with a Diploma in Library Science (2 years course
after matric).
Promotion
Library Assistant with 8 years experience in the Grade."
6. The petitioner, who is a Scheduled Caste category candidate, has
passed Secondary and Senior Secondary from the Central Board of
Secondary Education (CBSE). The petitioner has a Bachelor's degree from
the University of Delhi and a degree in Library Information Science from the
Indira Gandhi Open University. In addition, the petitioner has a one year
certificate course from National Open School, where he had studied subjects:
(1) Libraries; Functions and Services, (2) Organisation of Library Material;
(3) Records of Library. He had worked as a Library Assistant in the National
Institute of Open Schooling from 10th February, 2001 to 30th June, 2002. The
petitioner has also undergone practical training at Delhi Public Library. He
has also undertaken and completed one year's course in Computer Software
Development sponsored by the Delhi State Industrial Development
Corporation.
7. The petitioner was appointed as a Library Attendant in Kamla Nehru
College on 26th September, 2006 and has been working at the said post.
8. The contention of the ESI Corporation, which has been accepted by the
Tribunal, is that the petitioner is not eligible and is not qualified for the post
of Librarian Grade-II, for he did not have a two years' diploma after
matriculation in Library Science and has a degree in Library Science, which
he had obtained after graduation. It is submitted that the four candidates who
have been appointed are diploma holders in Library Science (two years'
course) after matriculation. The names of the persons selected and the marks
obtained by them in the interview are as under:-
"
S.No. Roll No. Name of Father/husb Marks
Candidates and Name
(1) (2) (3) (4) (5)
1. 184007 Akanksha Yogesh 74
Varsheny
Varshney
2. 184012 Naney Rajender 73
Thakur Thakur
3. 184021 Meenakshi Sunehir Lal 66
Pal
4. 184001 Geetanjali Ved Praksh 54
"
The petitioner had secured 69 marks out of 100 marks in the interview.
The petitioner along with four other candidates was not considered as
qualified, for they did not have two years' diploma in the Library Science
after matriculation. The names of the said four candidates and the marks
obtained by them including the petitioner are as under:-
"(i) Ramesh S. [75 marks]
(ii) Mahesh Kumar [69 marks]
(iii) Satinder Kumar [68 marks]
(iv) Archana [62 marks]
(v) Vandana Singla [60 marks]"
Sonam, who had secured 62 marks, was also not considered as she was
under age.
9. Accordingly, Geetanjali and Meenakshi Pal, who had secured 54 and
66 marks, respectively, were selected. Geetanjali and Meenakshi Pal were
co-respondents before the Tribunal and have been impleaded as respondent
Nos.3 and 4 to the present writ petition. They have not entered appearance
and contested these proceedings.
10. The aforesaid Rules were enacted 39 years back and hence make
reference to matriculation or the equivalent. The school education
system/pattern since then has changed, for the matriculation system was first
replaced by Higher Secondary which in turn stands replaced by the
Secondary and Senior Secondary system. When we read the Rules for the
post of Librarian Grade-I and Librarian Grade-II, it is apparent and can be
appreciated that a candidate with a one year degree or diploma in Library
Science after graduation, is considered to be superior and higher qualified
than matric with a two year diploma in Library Science. It is an accepted and
admitted position that Librarian Grade-I is the immediate higher post in the
hierarchy.
11. It is in these circumstances, we have to examine and consider the stand
of the ESI Corporation that the petitioner does not meet and fulfil the
essential eligibility qualification prescribed for Librarian Grade-II. If we
accept the stand of the respondent ESI Corporation, the petitioner would
fullfil and meet the eligibility qualifications for appointment as Librarian
Grade-I, but would fall short and would not be eligible for appointment to the
lower post of Librarian Grade-II.
12. In Commissioner of Income Tax , Bombay and Ors. Vs. Podar
Cement Pvt. Ltd. and Ors (1997) 5 SCC 482, after referring to State Vs, S.J.
Choudhary (1996) 2 SCC 428, and Statutory Interpretation by Francis
Bennion, the Supreme Court elucidated upon the need to update the
constructions of the words of a statute. The Court in S.J. Choudhary (supra)
had observed that the interpreter should presume that the Parliament intended
the Statute to be applied at any future time is such a way as to give effect to
its true original intention.
13. In the present factual matrix, noticing that the Rules are archaic, we
would adopt a pragmatic and realistic interpretation for the words "essential
qualification", rather than follow and apply a pedantic and literal
interpretation which would result in absurdities. We would hesitate and not
re-write the Rules, but can interpret the essential qualification with a certain
degree of flexibility to adapt the pre-dated rules in the contemporary context.
A stricter approach would not only be counterproductive, but would be
distinctly unjust and unfair. The fact that the authorities had not amended the
rules over 37 years would indicate that, they perceived that the Rules were
broad enough in their application to account for changes and modifications in
the educational pattern. We must therefore interpret the Rule with such
modification of the meaning of the language of a statute as is necessary to
give effect to the legislative intent behind its enactment. The Recruitment
Rules should be to read as laying down minimum educational qualification
and not as postulating or stating that a candidate, who has higher
qualifications, would be ineligible for he is overqualified. Over qualification
may be contra indicative for some posts/ Recruitment Rules, but not in this
case.
14. As we are taking a different view from the one expressed by the
Tribunal, we would like to refer to the reasoning and the judgments in the
impugned order. The Tribunal posed the question; whether an applicant who
possess higher qualification than the required qualification or equivalent
qualification prescribed, would be eligible and has answered the said question
in negative i.e. if the applicant possesses higher qualification, he would be
disqualified. It has been held that possessing higher qualification does not
mean that the candidate possesses the minimum prescribed qualification.
One year's degree course in Library Information Science obtained by the
petitioner cannot be treated as equivalent to a diploma in Library Science of
two years after matriculation.
15. We would begin by referring to the decision in Yogesh Kumar and
Ors.Vs. Government of NCT of Delhi & Ors. (2003) 3 SCC 548, wherein it
has been held that:-
"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
recognised qualification in the field of 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 field 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 small
children at primary level cannot be compared with training
given for awarding B.Ed. degree. Merely because primary
teachers can also earn pro motion to the post of teachers to
teach higher classes and for which B.Ed. is the prescribed
qualification, 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 latter
cannot be treated as higher qualification to the former.
XXX XXX XXX
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 cornpeted (sic 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 [CA No. 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 natures of training imparted for grant of certificate and
degree are totally different and between them there is no
parity whatsoever. It is projected before us that presently
more candidates available for recruitment to primary school
are from B.Ed. category and very few from TTC 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."
The issue, which had arisen in the aforesaid case, was whether candidates
who had a B. Ed. Degree were eligible as per the Recruitment Rules, which
had stipulated TTC qualification. What is important and relevant is the
finding of the Supreme Court in paragraph 5 quoted above. It was held that
the TTC qualification was not comparable with the B. Ed. Degree
qualification. Consequently, the B. Ed Degree cannot be treated as a higher
qualification. The said finding has been reiterated in paragraph 8 with
reference to the connected appeals arising from the State of Kerala wherein it
was held that B. Ed. Qualification cannot be held to be a higher qualification
than TTC because the nature of training imparted in the two courses was
totally different and there is no parity between the two. (We have
subsequently referred to the decision in P.M. Latha and Anr. Vs. State of
Kerala and Anr. (2003) 3 SCC 541)
16. Similarly, in Dilip Kumar Ghosh and Ors. Vs. Chairman & Ors.
(2005) 7 SCC 567, the appellants before the Supreme Court were holders of
B. Ed. Degree, but were declared ineligible for the post of Primary School
Teacher, for the Recruitment Rules/advertisement had specifically prescribed
JBT/PTTC certificate as the mandatory qualification. In paragraph 10, the
Supreme Court observed that the B. Ed. curriculum did not have subjects like
Child Psychology and the former course was generic in nature. The
JBT/PTTC certificate was specifically for training candidates to teach in
primary schools. The Supreme Court drew a distinction between teaching
students at a primary level up to class IV and those in the higher classes,
emphasising that for teaching at the primary level, knowledge of Child
Psychology and development at a tender age was an essential pre-requisite.
This judgment also refers to Yogesh Kumar (supra) and an earlier decision in
P.M. Latha (supra). The latter decision dealt with candidates with B. Ed.
Degree, who had been held to be eligible as lower primary and upper primary
teachers in Government schools on the ground that they had B. Ed., a higher
qualification than the TTC. The Supreme Court has held that B. Ed. Degree
holders cannot necessarily be held to be holding qualification suitable for
appointment as teachers in primary schools. Further, whether the recruitment
should be from the candidates with TTC certificate or B.Ed. qualification was
a matter of recruitment policy and in the said case there was sufficient logic
for the authorities to prescribe qualification for appointment as TTC only.
17. The aforesaid decisions, in our opinion, would not be applicable. In
the said decisions, it was held that the B.Ed. Degree cannot be treated and
equated with TTC or TBT or PTTC as their curriculum and course material
was entirely different. The latter were specific certificate courses for
teaching at the primary level, whereas the B.Ed. is a general teaching course
for teaching at higher levels.
18. We have, in paragraph 13 above, observed that over qualification may
be contraindicative for some posts but not in the present case. Lest there be
any confusion and incertitude, we would elaborate on the said aspect.
Recruitment Rules and Executive Instructions are framed to prescribe
minimum eligibility qualifications and requisite experience. This ensures
transparency and uniformity, and curtails the scope of discretion and
nepotism in the selection process. There may be certain posts where over
qualification may amount to disqualification or ineligibility, for such
candidates would be unsuitable for the nature of work involved as they would
not require the skill and qualifications the over qualified possess. This is not
the position in the present case.
19. Educational curriculum and subjects are constantly evolving with
changes and modifications to suit the present day needs. Therefore, the
eligibility requirements should also be updated as and when required to fit the
present day needs and context. Courts cannot prescribe the eligibility or
experience qualifications as these are matters of policy best left to the
Executive. However, when the recruitment rules are not modified and
updated to keep up with the times, the Courts may intervene to interpret the
antiquated provisions with a degree of flexibility to prevent injustice and
ensure that a more qualified and better suited candidate is not denied
selection on account of senescent rules.
20. A Division Bench of this Court in Manju Pal Vs. Government of
National Capital Territory of Delhi and Anr. (2002) 61 DRJ 58, had dealt
with a case of appointment to the post of Assistant Primary Teacher. The
essential qualifications prescribed for the said post were that the candidate
should have studied Hindi at the Secondary or Senior Secondary level. The
petitioner therein had a Bachelor of Arts Degree in Hindi but was declared
ineligible for the post by the authorities on the ground that it was a higher
qualification. The Court rejected the stand of the authorities observing that a
candidate having higher qualification like a B.A. or M.A. Degree in Hindi
could not be declared as less qualified or lacking competence, for it had not
been shown that the study of Hindi at the Secondary or Senior Secondary
level was more helpful for teaching primary level students.
21. Reference must also be made to the decision of dated 26th May, 2016 of
a Division Bench of this Court in W.P. (C) 8089/2015 titled Government of
National Capital Territory of Delhi Vs. Monika Sharma. The respondent
therein had been denied appointment as a Post-Graduate Teacher (Sociology)
despite having a B.El.Ed and M.Ed Degree in Sociology, for the reason that
B.El.Ed degree could not be equated with a B.Ed degree which was the
essential qualification. Dealing with the question of over qualification, the
Division Bench observed as under:-
"18. In Jyoti K.K. and Ors. vs. Kerala Public Service
Commission & Ors. (supra), the Supreme Court observed
that if a person had acquired higher qualifications, such
qualifications would pre-suppose acquisition of lower
qualification. A degree holder would be eligible to apply for
a post, where the minimum qualification prescribed was a
diploma holder. when the position was not clear and the
rules did not per se disqualify holders of the higher
qualifications, it would be appropriate to hold that those
with the higher qualifications would be eligible. In
Chandrakala Trivedi vs. State of Rajasthan and Ors.
(2012) 13 SCC 129, the Supreme Court reversed the
decision of the High Court observing that the expression
„equivalent‟ must be given a reasonable meaning. Usage of
the expression „equivalent‟ means that there are some
degrees of flexibility or adjustment which do not lower the
stated requirement. Equivalent does not mean exact. In this
case, the candidate was declared ineligible for appointment
as a teacher for primary and upper primary schools because
she had not passed the Higher Secondary/Senior Secondary
Examination, the basic qualification for the post in question.
She was considered eligible as she had cleared higher
examinations. Recently, the Supreme Court in CWP
No.13368/2015, Parvaiz Ahmad Parry vs. State of Jammu
& Kashmir & Ors. decided on 6th November, 2015 has held
that while the minimum qualification prescribed for the post
of J&K Forest Service Range Officers Grade-I (Forest) was
a B.Sc (Forestry) or an equivalent degree from any
University recognized by the ICAR, a candidate with a
higher qualification was equally eligible. Thus a B.Sc
candidate with Forestry as a major subject and M.Sc. in
Forestry was eligible. It was observed:-
"25. In our view, if a candidate has done B.Sc. in
Forestry as one of the major subjects and has also
done Masters in the Forestry, i.e., M.Sc. (Forestry)
then in the absence of any clarification on such
issue, the candidate possessing such higher
qualification has to be held to possess the required
qualification to apply for the post. In fact,
acquiring higher qualification in the prescribed
subject i.e. Forestry was sufficient to hold that the
appellant had possessed the prescribed
qualification. It was coupled with the fact that
Forestry was one of the appellant's major subjects
in graduation, due to which he was able to do his
Masters in Forestry."
21. A Full Bench of the Punjab and Haryana High Court in
CWP No.451/2008 Manjit Singh vs. State of Punjab & Ors.
after extensively referring to case law, has held that a
candidate possessing a higher degree in the same line cannot
be denied consideration for selection, though he does not
hold the lower qualification."
22. In view of the aforesaid discussion, the impugned order of the Tribunal
dated 2nd September, 2014 dismissing OA No. 1058/2013 is set aside. The
respondent-ESI Corporation would accordingly process the case of the
petitioner for appointment to the post of Librarian Grade-II, as per the marks
and merit position secured by him. If qualified as per marks, a letter of
appointment will be issued in favour of the petitioner within two months
from the date of receipt of a copy of this order by the ESI Corporation. The
petitioner would not be entitled to payment of back wages. However, his pay
will be fixed notionally as if he was appointed on the date on which his
immediate junior had joined. The seniority of the petitioner will also be
determined on the basis of the merit list and he would be entitled to all
consequential benefits including length of service for promotion.
23. There will be no order as to costs.
-sd-
(SANJIV KHANNA)
JUDGE
-sd-
(CHANDER SHEKHAR)
JUDGE
MARCH 15, 2017
NA
