Asif N v Union Territory of Lakshadweep and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941** ## **OP (CAT).No.53 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OA 482/2017 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS:** **ASIF.N, AGED 26 YEARS S/O.MAHISHA P., NEDUM THIRU HOUSE, KILTAN ISLAND, UNION TERRITORY OF LAKSHADWEEP, PIN CODE- 682558.** **BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENT/S:** - **1 UNION TERRITORY OF LAKSHADWEEP, KAVARATTI- 682555, REPRESENTED BY ITS ADMINISTRATOR.** - **2 THE SECRETARY, DEPARTMENT OF ANIMAL HUSBANDRY, ADMINISTRATION OF UNION TERRITORY OF LAKSHADWEEP, KAVARATTI- 682555.** - **3 THE DIRECTOR, DEPARTMENT OF ANIMAL HUSBANDRY, ADMINISTRATION OF UNION TERRITORY OF LAKSHADWEEP, KAVARATTI- 682555.** - **4 THE DIRECTOR, LBS CENTRE FOR SCIENCE AND TECHNOLOGY, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM, KERALA- 682553.** - **5 ALTHAF ALI MARZOUK P., PUTHIYA PATTINIYODA HOUSE, AGATTI ISLAND, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI- 682555.** **O.P(CAT) No.53 of 2019 - 2 -** - **6 JAMSHEED KHAN M.P., MELALPURA HOUSE, KILTAN ISLAND, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI- 682555.** - **7 KALEELA FARSANA L., LAVANAKKAL HOUSE, ANDROTH ISLAND, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI- 682555.** **R1-3 BY SRI.MANU.S, CGC R4 BY ADV. SMT.SHAMEENA SALAHUDHEEN R5-6 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R5-6 BY ADV. SRI.S.A.ANAND** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P(CAT) No.53 of 2019** **- 3 -** ## **JUDGMENT** **Dated, this the 12[th] day of November, 2019** ## **Vinod Chandran, J.** **The 4[th] rank holder in the selection to the post of 'Stockman' and similar grades by direct recruitment in the Animal Husbandry Department of the Union Territory of Lakshadweep is before us aggrieved by the order of the CAT rejecting her challenge against the appointment of the 1[st] and 3[rd] rank holders. The challenge was against Annexure A6 Rank list and inclusion of Sl.Nos. 1, 3 and 4 who were impleaded as respondents 5, 6 and 7 before the Tribunal.** **2. As to the 4[th] rank holder it is now admitted by the Union Territory of Lakshadweep that both the petitioner and the 4[th] rank holder has same marks and for reason of the petitioner being older to the 4[th] rank holder, the petitioner should occupy the 4[th] position in the rank list at** **O.P(CAT) No.53 of 2019 - 4 -** **Annexure A6. There is no dispute on that and we need not further speak about the 7[th] respondent, who has also not cared to appear despite notice.** **3. The challenge against the inclusion of 1[st] and 3[rd] rank holders were on the ground that they did not satisfy the qualifications prescribed in the notification. The qualification prescribed includes Live Stock Inspectors Training course recognised by the State Government having a minimum duration of nine months. The respondents 5 and 6 admittedly had a qualification of a training course having only six months' duration.** **4. The Tribunal rejected the O.A on the following grounds: (i) that the Administrator having realised that no University in Kerala is granting Diploma of nine months has reduced the training periods from nine months to six months (ii) that the applicant's qualification itself is suspect (iii) that the applicant did not file an objection within 15 days as stipulated in the** **O.P(CAT) No.53 of 2019** **- 5 -** **check list at Annexure A4.** **5. The qualification prescribed for the post of Stockman/Stockman Compounder/Poultry Vaccinator was either (i) pass in Plus Two Science Group with Biology and pass in Live Stock Inspectors Training Certificate Course from recognised institutions of State of Central Government having minimum duration of nine months or (ii) pass in Vocational Higher Secondary Education course with Animal Husbandry and Veterinary subjects and pass in Live Stock Inspectors Training Certificate Course from recognised institutions of State or Central Government having minimum duration of nine months.** **6. Initially a written test and interview was stipulated as mode of selection. Later a corrigendum was issued as is seen from Annexure A3 which indicated that no interview would be conducted for the selection. It is pertinent that change or relaxation is made with respect to the** **O.P(CAT) No.53 of 2019 - 6 -** **required essential qualification as found in Annexure A1 notification. We need only notice the binding precedent of** _**2019(8) SCC 587 Zonal Manager Bank of India v. Arya K Babu**_ **. There the post notified for appointment was Agricultural Field Officer Scale I requiring qualification, among others of a Degree in B.Sc(Agro-Forestry). The notification was issued on 17.11.2014 and the selection was concluded on 29.05.2015. The petitioners before the High Court in that case had a qualification in B.Sc(Forestry). The High Court took note of the circumstances that there is no four year degree programme offered in Agro Forestry in India itself. Reliance was also placed on the information furnished by Indian Council of Agricultural Research who clarified that the definition of agriculture included forestry. The Hon'ble Supreme Court found that there cannot be any equivalence provided of educational qualifications by the Court.** **O.P(CAT) No.53 of 2019 - 7 -** **7. Further it was also held noticing that there was a subsequent change made to the qualification for the very same post by a general corrigendum dated 16.01.2016 which also included qualification in B.Sc(Forestry) that the same would have only prospective effect. When a change is made to the essential qualifications there should be a further notification issued providing opportunity to all those possessing that qualification to apply, was the categoric finding of the Hon'ble Supreme Court. On the teeth of the above binding precedent we find that despite there being no training course of duration of eight months carried on by the Universities in Kerala the fact that the notification stipulated essential qualification also of a training course having duration of 9 months, it cannot be later watered down by the Department in the very same selection procedure. Those who had qualification of the Training Course with 6 months duration** **O.P(CAT) No.53 of 2019 - 8 -** **were disabled from applying under the notification. We find hence that respondents 5 and 6 are not entitled to be included in the select list or appointed to the post notified, for reason of the said parties having not satisfied the essential qualification required.** **8. The next aspect is on the applicant having not raised an objection to the check list produced at Annexure A4. The Administrator relies on** _**Thahira P v. Administrator, U.T of Lakshadweep [2018LabIC2684)**_ **. Therein the appointment was to the post of Social Education Organizer, the essential qualification being Bachelor's Degree in Sociology. The successful candidate had Bachelor's Degree in Malayalam and Sociology (Double Main). The challenge was by the 2[nd] rank holder who had a Bachelor's Degree in Sociology from the very same University which had issued the Double Main degree to the successful candidate. The High Court took note of the method of** **O.P(CAT) No.53 of 2019** **- 9 -** **calculation of marks and found that rank number two should in fact have been appointed as rank number one. The Hon'ble Supreme Court deprecated the practice of needlessly opening a new avenue to challenge the appointment of a successful candidate, which was not pleaded by the applicant before the Tribunal. It was also found that in the context of there being a time limit for raising an objection, both the High Court and the Tribunal ought to have exercised due restraint. Paragraph 16 which specifically referred to the time limit prescribed for objection to the check list, as is the case here too, is pointed out by the learned Standing Counsel.** **9. We respectfully bow to the above proposition but find that paragraph 16 is insofar as the authority being precluded from considering an objection after the time limit. As far as the High Court's powers, the decision only directed restraint, especially in the context of a totally** **O.P(CAT) No.53 of 2019 - 10 -** **new plea having been pursued by the High Court. Here it is not so and it has been established that the respondents 5 and 6 do not have a qualification which was notified as an essential qualification. Despite the objection having been not objected to by the petitioner within the time provided we cannot ignore the illegality in appointment of persons not having the required qualification. The appointment is also to a public post and we are of the opinion that the same cannot be permitted when it is not in the terms of the notification in the context of the decision in** _**Arya K Babu**_ **.** **10. The next ground of defense is as to suspicion with respect to the petitioners qualification. The petitioner is said to have obtained a Diploma in Live Stock Assistant from Vinayak Mission University that too issued under the Directorate of Distant Education. We too had a doubt as to whether the Diploma in Live Stock** **O.P(CAT) No.53 of 2019** ## **- 11 -** **Asistant is a qualification considered as equivalent to the Live Stock Inspector Training Course. We also do not see any specific certification of a training having been imparted as required especially when the prescription was a pass in 'Live Stock Inspectors Training Course' of nine months duration. The qualification of the petitioner is Diploma in Live Stock Assistant having a duration of two years; which is also said to be a correspondence course.** **11. The learned Senior Counsel appearing for the petitioner however would submit that the 2[nd] rank holder had the same qualification. She also take us to Annexure A7 which speaks of three persons having been appointed earlier to the instant selection. There also the appointees had the very same Diploma as was obtained by the applicant, is the contention, but not substantiated before us. In such circumstances, we direct the Administration to verify the** **O.P(CAT) No.53 of 2019** **==> picture [58 x 11] intentionally omitted <==** **qualifications, also of persons as included in Annexure A7 and decide on the appointment to be made to the two vacancies, now arising by reason of this judgment finding the respondents 5 & 6 to be not qualified for appointment. Consideration shall be done within a period of one month and if found eligible the petitioner shall be appointed to the 2[nd] post. Original Petition (CAT) allowed. No order as to costs.** **Sd/K. Vinod Chandran, Judge** **Sd/V.G. Arun, Judge** **jma** **O.P(CAT) No.53 of 2019** ## **- 13 -** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **TRUE COPY OF THE CERTIFICATE DATED 20/06/2013 PROVING THE QUALIFICATION OF APPLICANT.** - **ANNEXURE A2 TRUE COPY OF THE CIRCULAR BEARING NO.F.NO.1/11/2011-AM DATED 23/07/2015 INVITING APPLICATION FOR THE POST IN THE DEPARTMENT OF ANIMAL HUSBANDRY.** - **ANNEXURE A3** - **TRUE COPY OF THE CORRIGENDUM PUBLISHED BY THE SECRETARY, DEPARTMENT OF ANIMAL HUSBANDRY BEARING NO.F.NO.1/11/2010AH/84 DATED 24/02/2016.** - **ANNEXURE A4 TRUE COPY OF THE ELIGIBILITY LIST PUBLISHED BY THE DIRECTOR, DEPARTMENT OF ANIMAL HUSBANDRY ON 07/11/2016.** - **ANNEXURE A5 TRUE COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION TO THE POST PUBLISHED IN THE GAZETTE.** - **ANNEXURE A6 A TRUE COPY OF THE CIRCULAR BEARING NO.F.NO.1/11/2010-AH DATED 23/01/2017 PUBLISHING THE RANK LIST.** - **ANNEXURE A7 A TRUE COPY OF THE OFFICE NOTE SHOWING THE DETAILS OF EARLIER RECRUITMENT TO THE POST OF STOCKMAN.** - **ANNEXURE A8 A TRUE COPY OF THE APPLICATION PREFERRED BY THE APPLICANT BEFORE THE COMPETENT AUTHORITY UNDER RIGHT TO INFORMATION ACT.** - **ANNEXURE A9 A TRUE COPY OF THE REPLY DATED 21/07/2018 ISSUED BY THE PUBLIC INFORMATION OFFICER, LIVESTOCK MANAGEMENT TRAINING CENTRE.** - **ANNEXURE R1(A)** - **TRUE COPY OF THE LETTER F.NO.1/11/2010AH(ESTT) DATED 19/05/2017.** **O.P(CAT) No.53 of 2019** ## **- 14 -** - **ANNEXURE R1(B)** - **TRUE COPY OF THE LETTER NO.KVASU/DAR/ACADB2/12156/2017/L.DIS DATED 19/06/2017.** - **ANNEXURE R1(C) TRUE COPY OF THE LETTER NO.1/11/2010-AH DATED 25/08/2017.** - **ANNEXURE R5(A)** - **TRUE COPY OF THE PASS CERTIFICATE IN LIVESTOCK INSPECTOR TRAINING COURSE OF SRI. ALTHAF ALI MARZOUK -5TH RESPONDENT IN OA 482/2017.** - **ANNEXURE R5(B) TRUE COPY OF THE PASS CERTIFICATE IN LIVESTOCK MANAGEMENT (DAIRY HUSBANDRY) OF SRI. ALTHAF ALI MARZOUK -5TH RESPONDENT IN OA 482/2017.** - **ANNEXURE R6(A) TRUE COPY OF THE PASS CERTIFICATE IN LIVESTOCK INSPECTOR TRAINING COURSE OF SRI. JAMSHEED KHAN M.P. 6TH RESPONDENT IN OA 482/2017.** - **ANNEXURE R6(B) TRUE COPY OF PASS CERTIFICATE IN LIVESTOCK MANAGEMENT (DAIRY HUSBANDRY) OF SRI. JAMSHEED KHAN M.P., 6TH RESPONDENT IN OA 482/2017.** - **EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.482 OF 2017 FILED BY THE APPLICANT ALONG WITH ANNEXURES.** - **EXHIBIT P2 TRUE COPY OF THE STATEMENT FILED BY COUNSEL ON BEHALF OF THE RESPONDENTS 1 TO 3 IN O.A.NO.482 OF 2017 ALONG WITH ITS ANNEXURES.** - **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 5TH AND 6TH RESPONDENT ALONG WITH ITS ANNEXURES.** - **EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT IN O.A.NO.482 OF 2017 ALONG WITH ITS ANNEXURES.** - **EXHIBIT P5** - **TRUE COPY OF THE ORDER DATED 12.12.2018 IN O.A.NO.482 OF 2017 ON THE FILE OF** **O.P(CAT) No.53 of 2019 - 15 -** **THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.**