Union of India & Others v. Johnson Mathew

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **FRIDAY, THE 2ND DAY OF MARCH 2012/12TH PHALGUNA 1933** ## **WP(C).No. 14054 of 2006 (Z)** ## **----------------------------------OA.294/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH -----------------------------------------** ## **PETITIONERS:** - **-----------------** **1. UNION OF INDIA, REPRESENTED THROUGH THE SECRETARY TO THE GOVERNMENT OF INDIA MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI.** **2. THE ENGINEER IN CHIEF BRANCH, ARMY HEADQUARTERS, KASHMIR HOUSE, NEW DELHI-110 011.** **3. THE ENGINEER (AF), NO.2, DC AREA, M.E.S.ROAD, YESHWANTHPUR POST BANGALORE-560 022.** **4. THE COMMANDER WORKS ENGINEERS (AF) SOUTH BELLARY ROAD, J.C.NAGAR ROAD BANGALORE-560 022.** - **BY ADV. SRI.T.P.M. IBRAHIM KHAN, SENIOR PANEL COUNSEL** ## **RESPONDENTS:** - **-----------------** **1. JOHNSON MATHEW, SON OF SHRI. JOHN MATHEW, PARIYAPPANAL HOUSE, KOOTHATTUKULAM, ERNAKULAM DISTRICT, PIN 686 662.** **2. THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, KOCHI-682 017.** **3. EX. SUBHASH CHANDER CHAUGLA, OFFICE OF THE AGE (1), AIR FORCE, SAMBRA BELGAUM, KARNATAKA.** **4. EX- YELLAPPA S. JOGI, OFFICE OF THE GE (AIR FORCE), SDI/ ASTE BANGALORE-560 087.** nk **WP(C).No. 14054 of 2006 (Z)** ## **-----------------------------------** ## **5. EX- SATHEESHKUMAR, OFFICE GE (AIR FORCE), SDI/ASTE, BANGALORE-560 087.** **6. EX-D. SETHURAMAN, OFFICE OF THE GE (AE) (AIR FORCE), THIRUVANANTHAPURAM-695 001.** **R1, R3-R5 BY ADVS.SRI.ABDUL MAJEED KM SRI.P.PARAMESWARAN NAIR,ASG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** nk **WP(C).No. 14054 of 2006 (Z) -----------------------------------** ## **APPENDIX =======** ## **PETITIONERS' EXHIBITS ===============** - **P1 COPY OF THE ORIGINAL APPLICATION NO.294 OF 2005 ALONG WITH ITS ANNEXURES FILED BY THE FIRST RESPONDENT/APPLICANT BEFORE THE SECOND RESPONDENT-CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** - **P2 COPY OF THE REPLY STATEMENTS DATED 27.07.2005, 22.12.2005 FILED BY THE PETITIONERS AND REJOINDER DATED 22.06.2005 FILED BY THE FIRST RESPONDENT IN EXHIBIT P-1 ORIGINAL APPLICATION NO.294 OF 2005 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** - **P3 COPY OF THE ORDER DATED 18.1.2005 PASSED BY THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN EXHIBIT P-1 ORIGINAL APPLICATION NO.294 OF 2005.** - **RESPONDENTS' EXHIBITS: NIL =================** ## **// TRUE COPY//** ## **P.A. TO JUDGE** nk WPC 14054/2006 :1: ## **Thottathil B.Radhakrishnan & C.T.Ravikumar, JJ.** = = = = = = = = = = == = = = = = = W.P. (C) No.14054 of 2006 = = = = = = = = = = = = = = = = = Dated this the 2[nd] day of March, 2012. ## **J U D G M E N T** ## **Thottathil B.Radhakrishnan, J.** ## **'CR'** The Military Engineering Service of the Ministry of Defence issued a notification inviting applications, including to the category of JE (Civ). Categorisation and distribution of the available vacancies on communal reservation and also for ex-service men were specifically shown in that notification. The first respondent applied for being considered; competed, but found his waterloo. 2. Though the advertisement was issued and selection process was held in Bangalore, the first respondent approached the Ernakulam Bench of the Central Administrative Tribunal contending that (1) ex-service men, beyond the total permissible number, were recruited and (2) that though the qualification prescribed is Diploma WPC 14054/2006 :2: in Civil Engineering, Graduates in Engineering who were degree holders, were permitted to compete. The Tribunal set aside the selection holding that the degree holders ought to have been excluded from the field of choice. As a consequence, the Tribunal ordered that all the selected degree holders be removed. The establishment challenges this. 3. This writ petition was admitted and the operation of the order of the Tribunal was stayed on 30.05.2006 Though notice was served on the first respondent who was the applicant before the Tribunal, he does not appear. We have heard the learned senior counsel for the establishment on the basis of the records. 4. The qualification of Diploma in Civil Engineering from a recognised institute/university/board or equivalent, is prescribed as the minimum educational qualification as per the notification, which contains the conspicuous statement in capital letters that “MERELY PERSON FULFILLING THE BASIC CRITERIA DOES NOT AUTOMATICALLY ENTITLE TO BE CALLED FOR TEST / INTERVIEW”. WPC 14054/2006 :3: The selection was on the basis of a competitive test for which syllabus was prescribed and published in the notification. The first respondent who was the applicant before the Tribunal did not have a case before the Tribunal that degree holders in engineering do not study the subjects which the diploma holders learn. This is apart from the fact that, he, with open eyes, participated in the selection process and did not rank anywhere near the selected candidates, going by the undisputed stand of the establishment. 5. The prescription of minimum qualification does not exclude persons with higher qualifications, when the notification itself clarifies that what is prescribed is the minimum qualification. Mere fulfilment of minimum qualification prescribed, does not automatically entitle one to be called for the test/interview. 6. The service we are dealing with, is a sensitive one in national interest. The applicant had no material before the Tribunal to show that the holders of degree in Civil Engineering had not gained appropriate instructions in all the subjects which may be WPC 14054/2006 :4: matter for study in Diploma course in Civil Engineering. Any consideration of this issue can be only by the competent specialised body, authorised by law to determine the equivalence. Therefore, the impugned order does not stand. 7. **P.M. Latha & Another v. State of Kerala & Others** **[(2003) 3 SCC 541]** referred by the learned Tribunal in the impugned order has no application to the facts of the case in hand, because that was a case decided holding that B.Ed. Degree cannot be treated as a higher qualification than TTC. That precedent only lays down that B.Ed degree obtained only after examination pursuant to training imparted to teach students of classes of above primary cannot be equated to Trained Teacher's Certificate, given to teachers specially trained to teach small children in primary classes. That makes a world of difference. We see that the learned Tribunal has failed to notice this distinction. There is nothing in the impugned order which justifies the exclusion of the graduates in Engineering merely on the ground that the minimum qualification prescribed in the notification was Diploma in Engineering. WPC 14054/2006 :5: 8. Lastly, but most importantly and fundamentally, none among those graduate engineers who are in service, who would suffer the effect of the impugned order, was notified or heard in relation to the impugned order in impugned proceedings. All such persons stand condemned unheard. Obviously, the impugned order has to go on that ground also. In the result, this writ petition is allowed quashing Ext.P3. No costs, only because the first respondent succeeded before the Tribunal, but did not endeavour to justify that decision before this Court. Sd/Thottathil B.Radhakrishnan, Judge Sd/C.T.Ravikumar, Judge nk