Director of Education, Union Territory of Lakshadweep, Kavarti & Union of India v. Akbar Ali A. & Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938 WP(C).No. 34586 of 2008 (S) ---------------------------- AGAINST THE ORDER IN OA 354/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 25-04-2008 ## PETITIONERS/RESPONDENTS 1 AND 2: ------------------------------------------------------- - THE DIRECTOR OF EDUCATION UNION TERRITORY OF LAKSHADWEEP, KAVARATI. - UNION OF INDIA, REPRESENTED BY THE ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI. BY ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN. RESPONDENTS/APPLICANT & RESPONDENTS 3 TO 9: ----------------------------------------------------------------------------- 1. AKBAR ALI.A., S/O.K.K. KUNHIKOYA, ASHATHUMMADA HOUSE, CHETLET ISLAND. UTL. 2. NOUFAL.K, RESIDING AT MUFAZ, - UTL, KAVARATTI. 3. KUNHI.C.C, RESIDING AT CHERIYATHECHETTA, UTL, AMINI. 4. KAMAL HUSSAIN.K.K, RESIDING AT KEELAKUNNIKKAM,, UTL, AMINI. 5. SHAMSUDEEN.M.K, - RESIDING AT MAYAMKAKKADA,, UTL, ANDROT. 6. MEHRALI.C.P, - RESIDING AT PALIYATH,, UTL, ANDROT. 7. ANWAR.K.P, RESIDING AT KADALATH, UTL, ANDROT. ........2/- WP(C).No. 34586 of 2008 (S) -2- 8. NAZEEMUDEEN SAYED.C.P, RESIDING AT CHERIYAPANDARAM, UTL, AMINI. R1 BY ADV. SRI.K.RAMACHANDRAN (THYKOODAM) ADV. SMT.K.RADHAMANI AMMA ADV. SRI.O.V.RADHAKRISHNAN (SR.) ADV. SRI.ANTONY MUKKATH R4 BY ADV. SMT.MOLLY JACOB ADV. SMT.M.P.SEETHA ADV. SMT.M.KABANI DINESH ADV. SMT.U.M.FOUSIA ADV. SMT.BOBY M.SEKHAR ADV. SMT.AYSHA YOUSEFF R6-8 BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.) ADV. SRI.TONY GEORGE KANNANTHANAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.6.2016, ALONG WITH WPC. 7717/2009 & WPC. 8662/2009, THE COURT ON 09-09-2016 DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)No.34586/08** ## **PETITIONER'S EXTS:** EXT.P1:COPY OF ORDER PASSED BY THE TRIBUNAL IN OA NO.354/2005 DT.16.1.2007. - EXT.P2:COPY OF COMMON ORDER PASSED BY THE TRIBUNAL IN R.A.NO.6/2007 AND R.A.NO.7/2007 IN OA 354/2005 DT.30.3.2007. - EXT.P3:COPY OF FINAL ORDER PASSED BY THE TRIBUNAL IN OA NO.354/2005 DT.25.4.2008. - EXT.P4:COPY OF ORIGINAL APPLICATION NO.354/2005 FILED BY THE 1ST RESPONDENT. EXT.P5:COPY OF REPLY STATEMENT FILED BY THE PETITIONERS DATED 5.12.2006. EXT.P6:COPY OF REJOINDER FILED BY THE 1ST RESPONDENT DT.3.6.2006. - EXT.P7:COPY OF ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS DT.5.12.2006. - EXT.P8:COPY OF ADDITIONAL REJOINDER FILED BY THE 1ST RESPONDENT ON 5.9.2007. EXT.P9:COPY OF MA FILED BY THE RESPONDENT DT.23.3.2008. ## **RESPONDENTS' EXTS: NIL** TRUE COPY P.S. TO JUDGE dsn **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -------------------------------------------------W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -------------------------------------------------DATED THIS THE 9[th] DAY OF SEPTEMBER, 2016** ## **JUDGMENT** ## **ANIL K.NARENDRAN, J** . These Writ Petitions arise out of the order passed by the Central Administrative Tribunal, Ernakulam Bench dated 25.4.2008 in O.A.No.354/2005, an Original Application filed by the applicant in that OA seeking for an order to quash Annexures A8, A12 and A13; to declare that the action of the Director of Education, Union Territory of Lakshadweep, Kavaratti in cancelling Annexure A7 by Annexure A8 and re-notifying the vacancies for enabling the candidates who were not eligible as on the last date for receipt of application in Annexure A1 is unconstitutional, ultra vires, arbitrary and vitiated by legal malafides; to issue appropriate direction directing the Director of Education to proceed with the selection process initiated as per Annexure A1 and to complete the selection by preparing the select list of candidates for appointment to the post of Physical Education Teacher from among the candidates W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -2- found qualified in Annexure A6 and to make appointment therefrom in accordance with law; to direct the Director of Education not to operate Annexure A13 select list and not to make any appointment therefrom to the post of Physical Education Teacher and to direct the Director of Education not to include respondents 7 to 9 in the OA who have not secured 40% marks in the concerned degree and not to consider any of the candidates applied for the post pursuant to Annexure A1 who did not qualify as on the date of receipt of application fixed therein. 2. The Tribunal originally dismissed the OA by order dated 16.1.2007 holding that the applicant does not possess the qualification prescribed in the Recruitment Rules and in the notification, i.e., graduation with Diploma in Physical Education, since he is having only a composite degree in Bachelor of Physical Education (BPE), which would not satisfy the dual qualification prescribed therein and there was no equivalent qualification either in the notification or in the Recruitment Rules. Therefore, the Tribunal found that the applicant is not qualified for the post in question. However, the Tribunal proceeded further with the W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -3- matter and concluded that none of the other candidates also possess the required qualification. Holding thus, the Tribunal directed the Director of Education to verify whether any, some or all of the selected candidates who are respondents in the OA are ineligible from the point of view of the prescribed qualification and in case of non-possession of such qualification, he shall take rectificatory action allowed under the Rules, including possible review of such appointments by following the principles of natural justice. 3. Feeling aggrieved by the aforesaid order of the Tribunal dated 16.1.2007, respondents 6 to 8 in the OA filed R.A.No.6/2007. Respondents 3 to 5 in the OA have also filed R.A.No.7/2007. The Tribunal heard both the Review Applications together and by a common order dated 30.3.2007 held that there is error apparent on the face of the record and accordingly the order dated 16.1.2007 in O.A.No.354/2005 was recalled and the said OA was posted for hearing to 16.4.2007. Thereafter, the OA was re-heard and allowed by Ext.P3 order dated 25.4.2008, holding that the applicant fulfills the educational qualifications for W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -4- the post of Physical Education Teacher and therefore, his case should be reviewed taking his qualification as graduation and Diploma in Physical Education. On such review of the total marks obtained by him, the same shall be contrasted with the marks of others and in case the applicant comes in merit, he shall be offered appointment. The Tribunal has also made it clear that, in that event, the one who has been selected with marks less than the applicant may have to be issued with an order of termination. The Tribunal has also made it clear that the seniority of the applicant in the event of his appointment should be on the basis of his merit in the selection. 4. Feeling aggrieved by Ext.P3 order dated 25.4.2008 of the Tribunal in O.A.No.354/2005, the official respondents in the OA are before this Court in W.P.(C).No.34586/2008. Challenging the very same order, respondents 4 to 6 in that OA have filed W.P.(C).No.7717/2009 and respondents 7 to 9 have filed W.P. (C).No.8662/2009. 5. We heard the arguments of the learned Standing Counsel for Lakshadweep Administration representing the W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -5- petitioners in W.P.(C)No.34586/2008, the official respondents in the other Writ Petitions, the learned counsel for the applicant in OA No.354/2005, who is arrayed as the 1[st] respondent in these Writ Petitions, the learned counsel for respondents 4 to 6 in the said OA who are the petitioners in W.P.(C).No.7717/2009 and also the learned counsel for respondents 7 to 9 in the said OA, who are the petitioners in W.P.(C).No.8662/2009. 6. The learned Standing Counsel for the Lakshadweep Administration mainly contended that the applicant, who is an unsuccessful candidate participated in the selection process conducted pursuant to Annexure A1 notification for recruitment to the post of Physical Education Teacher, is estopped from challenging the selection criteria or the process of selection, once it is found that he was not successful in the process of selection. The learned Standing Counsel would contend further that, as per the Recruitment Rules and the notification in question, for appointment to the post of Physical Education Teacher the candidate should possess a basic degree with Diploma in Physical Education. When a particular qualification has been prescribed for W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -6- the post in question and no equivalent qualification is prescribed in the Recruitment Rules, a candidate without a basic degree with Diploma in Physical Education is not eligible to be considered for recruitment to that post. As such, the finding of the Tribunal that the applicant, with BPE possesses the requisite qualification is perverse and even beyond the scope of the reliefs sought for in the OA. 7. The learned Standing Counsel would also contend that when the constitution of the Selection Committee and the process of selection based on the eligibility test, marks secured in the qualifying examination and interview and the selection of respondents 2 to 8 in the OA for the post of Physical Education Teacher, were done strictly in accordance with law, the Tribunal ought not to have interfered with the selection, in the absence of any allegations regarding malafides, arbitrariness and extreme illegality. Further, the finding of the Tribunal in the impugned order that the composite degree of Bachelor of Physical Education possessed by the applicant is equivalent to the dual qualification of basic degree and Diploma in Physical Education prescribed in W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -7- the Recruitment Rules and the notification in question, is clearly beyond the scope of the jurisdiction of the Tribunal and ultra vires the authority conferred upon it. It was also contended that, when a Review Application cannot be treated as an appeal or as a tool for re-hearing of the settled issues, the Tribunal went wrong in recalling its earlier order dated 16.1.2007, re-hearing the OA and passing a fresh order dated 25.4.2008. 8. The learned counsel for the petitioners in W.P.(C). No.7717/2009, who are respondents 4 to 6 in the OA adopted the arguments of the learned Standing Counsel for Lakshadweep Administration. The learned counsel has also contended that when the marks secured by the applicant in the degree examination was reckoned as in the case of other candidates and he was awarded 20.76 for his academic qualification based on 51.96 marks, the question of further awarding separate marks again for diploma does not arise at all. However, this aspect was not considered by the Tribunal, while passing Ext.P8 order. 9. The learned counsel for the petitioners in W.P.(C). No.8662/2009, who are respondents 7 to 9 in the OA has also W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -8- adopted the very same arguments advanced by the learned Standing Counsel for the Lakshadweep Administration and that of the learned counsel for the petitioner in W.P.(C).No.7717/2009, in order to contend that the documents on record would show that the applicant in the OA does not possess the requisite qualification for the post of Physical Education Teacher and as such, the finding of the Tribunal to the contra in its order dated 25.4.2008 is legally unsustainable. The learned counsel has also contended that by treating the qualification possessed by the applicant as both basic degree and Diploma, the Tribunal acted contrary to the Recruitment Rules and the notification in question. 10. The learned counsel for the applicant in the OA, who is arrayed as the 1[st] respondent in these Writ Petitions, contended that the findings of the Tribunal in the impugned order are perfectly legal and as such no interference is warranted in exercise of the jurisdiction under Articles 226 and 227 of the Constitution of India. 11. We have considered the rival submissions made at the W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -9- Bar and also perused the pleadings and materials on record. 12. The pleadings and materials on record would show that the applicant approached the Tribunal in O.A.No.354/2005 challenging the select list dated 15.4.2005 for the post of Physical Education Teacher under the Director of Education, Union Territory of Lakshadweep, Kavaratti. The said select list was prepared based on Annexure A1 notification dated 1.9.2004 inviting application to fill up different teaching posts under the Director of Education, including 5 posts of Physical Education Teacher. As per the said notification, the qualification prescribed for the post of Physical Education Teacher, in the scale of pay of ₹ 5500-9000 (equivalent to that of a Trained Graduate Teacher) is Graduation with Diploma in Physical Education and it has also been provided in the said notification that application with attested copies of certificates with mark list, proof of age and educational qualification should reach the Director of Education, Kavaratti, on or before 20.12.2003. 13. The applicant possesses Bachelors Degree in Physical Education (BPE). The fact that the applicant does not have a W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -10- separate basic degree with Diploma in Physical Education is not in dispute. Before the Tribunal, the applicant contended that Bachelors Degree in Physical Education (BPE) has to be treated as a basic degree in Physical Education and also as Diploma in Physical Education and as such, he has to be treated as a candidate having equivalent qualification. 14. As per Annexure R1 Recruitment Rules and Annexure A1 notification, a basic degree with a Diploma in Physical Education is the requisite qualification for the post of Physical Education Teacher and no equivalent qualification has been prescribed. Further, there is no prescription of any percentage of marks either for graduation or for Diploma, for recruitment to the post of Physical Education Teacher. On the other hand, as per the Recruitment Rules and the notification, the qualification prescribed for recruitment to the post of Trained Graduate Teachers in various subjects is graduation with B.Ed. or equivalent with minimum 40% marks. 15. Though the Recruitment Rules prescribe educational qualifications for various posts, which includes alternative W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -11- equivalent qualifications in respect of certain posts, such equivalent qualification is not prescribed for the post of Physical Education Teacher. The qualification prescribed for the post of Physical Education Teacher is actually a set of two qualifications, i.e., graduation with Diploma in Physical Education. The Tribunal, after referring to Annexure A15 order dated 23.8.1961 of the UGC, Annexure A16 order dated 26.11.1968 of the Ministry of Education, Annexure A21 order dated 17.2.1989 of the Ministry of Human Resources Development and Annexure A11 order dated 5.7.2007 of the Ministry of Youth Affairs, arrived at a conclusion that the applicant does possess the requisite qualification under the notification. 16. In **State of Rajasthan v. Lata Arun (2002 (6) SCC 252)** the Apex Court held that, the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for Courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -12- authority. 17. In **Guru Nanak Dev University v. Sanjay Kumar Katwal (2009 (1) SCC 610)** the Apex Court held that, equivalence of qualification is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body relating to equivalence should be by a specific order or resolution, duly published. 18. In **Dilip Kumar Garg v. State of U.P. (2009 (4) SCC 753)** the Apex Court held that, the administrative authorities are in the best position to decide the requisite qualifications for promotion from one post to another, and it is not for the Court to sit over their decision like a Court of Appeal. 19. The decisions of the Apex Court referred to hereinbefore, therefore, lay down that, it is not for this Court or the Administrative Tribunal to determine as to whether a particular educational qualification should or should not be recognised as equivalent to the prescribed qualification in the recruitment rules. The equivalence of qualification is a technical academic matter, which cannot be implied or assumed. The W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -13- administrative authorities are in the best position to decide the requisite qualifications for a particular post and it is not for this Court or the Administrative Tribunal to sit over their decision like a Court of Appeal. In that view of the matter, the Tribunal committed a grave error in assuming that the applicant does possess the requisite qualification under Annexure A1 notification for the post of Physical Education Teacher. 20. The main contention raised by the applicant before the Tribunal was that, the action of the petitioners in cancelling Annexures A7 and A8 and re-notifying the vacancies for enabling the candidates who are not eligible as on the last date fixed for receipt of applications in Annexure A1 notification is unconstitutional, ultra vires and vitiated by legal malafides. Therefore, the applicant sought for an order directing the petitioners to proceed with the selection process initiated as per Annexure A1 notification and complete the selection by preparing the select list of candidates for appointment to the post of Physical Education Teacher from among the candidates found qualified in Annexure A6 and to make appointments therefrom in W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -14- accordance with law. 21. The pleadings and materials on record would show that after cancelling Annexures A7 and A8, the vacancies were re-notified and after conducting a selection process, Annexure A13 select list was also published on 15.4.2005. Though the applicant participated in the selection process after re-notification and secured 8[th] rank in the short list, he was not included in Annexure A13 select list, which consists of only 7 candidates who secured more marks in the selection and as such his name is included in the wait list as Sl.No.1. 22. After having taken part in the selection process pursuant to re-notification, the applicant is not entitled to challenge the same on finding that he could not find a place in the select list prepared pursuant to the said notification. The applicant has approached the Tribunal only after he found that his name does not figure in the select list, but only in the wait list. This conduct of the applicant clearly disentitles him from questioning the selection. See: Madan Lal v. State of J&K (1995 (3) SCC 486), Marripati Nagaraja v. Govt. of A.P. (2007 (11) SCC W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -15- 522), Dhananjay Malik v. State of Uttaranchal (2008 (4) SCC 171), Amlan Jyoti Borooah v. State of Assam (2009 (3) SCC 227), K. A. Nagamani v. Indian Airlines (2009 (5) SCC 515), Manish Kumar Shahi v. State of Bihar (2010 (12) SCC 576), etc. 23. As far as the inclusion of the party respondents in the OA in Annexure A13 select list is concerned, the applicant contended that respondents 7 and 9 in the OA have not secured 40% marks for their graduation and the select list contains candidates who do not possess the required qualification as on the last date fixed for receipt of application in Annexure A1 notification. As we have already noticed, as per the Recruitment Rules and the notification in question, in the qualification prescribed for recruitment to the post of Physical Education Teacher, there is no prescription of any percentage of marks either for Graduation or for Diploma. Further, when Annexure A13 select list has been prepared pursuant to re-notification of the vacancies in question, the applicant cannot now contend that the selected candidates should have the requisite qualification as on the date of Annexure A1 notification, i.e., the previous W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -16- notification. 24. We also notice that, as per the procedure adopted by the petitioners, the marks pattern fixed by the Selection Committee was written test - 50 marks; academic qualification - 40 marks and personal interview - 10 marks. The marks for academic qualification were further divided into two divisions as the Recruitment Rules requires dual qualification, i.e., Graduation with Diploma in Physical Education. 40 marks given for academic qualification was divided into 10 marks for Degree and 30 marks for Diploma in Physical Education. The percentage of marks that the candidates got in their Graduation and Diploma were accordingly assessed. In the case of the applicant, he was not put to any disadvantageous position as the Selection Committee considered his percentage of marks for Bachelor of Physical Education (BPE) out of 40 marks earmarked for academic qualification. The details of the marks obtained by the respective candidates, produced as Annexure R6 along with the additional reply statement filed by the petitioners is extracted hereunder; -17- W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 |**_Sl.No._**|**_Reg.No._**|**_Marks in the_**<br>**_written Test_**<br>**_(Out of 50)_**|**_Percentage_**<br>**_of Marks in_**<br>**_Graduation_**<br>**_(Out of 10)_**|**_Percentage_**<br>**_of marks in_**<br>**_B.P.Ed.(Out_**<br>**_of 30)_**|**_Total_**| |---|---|---|---|---|---| |1|601|21|4.62|22.26|47.88| |2|602|21|5.16|19.32|45.48| |3|603|16.5|4.19|21.51|42.20| |4|604|18.5|3.5|20.43|42.43| |5|605|19|20.76 BPE (Out of 40<br>marks)||39.76| |6|606|20|4.72|21.81|46.53| |7|607|23.5|3.51|17.34|44.35| |8|608|22|4.48|21.9|48.38| In that view of the matter, we find absolutely no illegality or irregularity in the procedure adopted by the petitioners in preparing Annexure A13 select list and the challenge made against the said select list cannot be sustained on merits as well. 25. During the course of arguments, it was brought to the notice of this Court by the learned Standing Counsel for Lakshadweep Administration and also by the learned counsel for the party respondents in the OA that, during the pendency of these Writ Petitions, the Recruitment Rules were amended by which Bachelor of Physical Education (BPE) was also included as one of the qualifications for recruitment to the post of Physical W.P.(C).Nos.34586/08, 7717/2009 & 8662/2009 -18- Education Teacher. After the said amendment, a fresh notification was issued for recruitment to the post of Physical Education Teacher. The applicant and the party respondents in the OA participated in the selection process pursuant to that notification and all of them got appointment and now working as Physical Education Teachers. 26. For the reasons stated hereinbefore, we find absolutely no grounds to sustain the reasoning of the Tribunal in Ext.P3 order dated 25.4.2008 in OA.No.354 of 2005. In the result, these Writ Petitions are allowed, setting aside Ext.P3 order of the Tribunal and OA.No.354 of 2005 is accordingly dismissed. No order as to costs. Sd/- **P.R. RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn True copy P.S.to Judge