Madras High Court
Case BriefsHigh Courts

   

Madras High Court: S. M Subramaniam, J. upheld the government order that stated, the Degree of B.Sc (Biochemistry) awarded by all Universities in the State recognized by the University Grants Commission is not equivalent to the Degree of B.Sc in Chemistry for the purpose of employment in the public service. The Court refused to interfere with the opinion of the Equivalence Committee, Personnel and Administrative Reforms Department constituted by the rules in force because when the Committee has made certain recommendations and such recommendations were accepted by the Government and an order was issued, then there is no reason to exercise the powers of judicial review under Article 226 to undo the exercise done by the expert body.

The writ petition was filed to quash a Government Order No. 24 dated 04-02-2011 issued by Personnel and Administrative Reforms Department which declared that degree qualification of B.Sc (Biochemistry) will not be equivalent to B.Sc in Chemistry. This was done in accordance with a report submitted by the Equivalence Committee. This order effected the qualification required for selection to the post of B.T. Assistantcandidates with a degree of B.Sc Chemistry can only apply for the post.

The petitioner are the candidates who studied B.Sc Biochemistry and they contended that they have studied chemistry subject and they have attended classes on par with the candidates who have studied B.Sc in Chemistry.

The Court noted that the impugned order was passed on the recommendation of the Equivalence Committee which is a competent authority to evaluate the syllabus and other aspects of the degrees. The Equivalence Committee examined the syllabus and equivalence between both the degrees, this recommendation was accepted by the Government of Madras.

Thus, the Court, while dismissing the petition, stated that judicial review can be exercised only if any unconstitutionalty or violation of statutory rules are established, and it cannot be exercised to undo a work done by a competent authority.

[S.K. Sujatha v. The State of Tamil Nadu,W.P. No. 23805 of 2014 , decided on 06-07-2022]


Advocates who appeared in this case :

A.R. Suresh, Advocate, for the Petitioner;

M. Bindran for R1, R2 and R4 and C. Kathiravan for R4, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In the case where the Court was posed with the question as to whether the degrees obtained by the respective petitioners in one branch of History can be said to be obtaining a degree in History, the bench of MR Shah* and BV Nagarathna, JJ has held that once the Expert Committee has opined that the degrees obtained by the candidates in one branch of History cannot be said to be obtaining the degree in History as a whole, the Court cannot go against such finding.

“As per the settled proposition of law, in the field of education, the Court of Law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the matter.”

The issue relates to appointment to the post of Postgraduate Trained Teachers (P.G.T.T.) in the State of Jharkhand in different subjects, i.e., Chemistry, Physics, History etc. As per the advertisement, the eligibility criteria for the post of Postgraduate Trained Teachers in the subject History was that a candidate must have obtained a Postgraduate degree with 50% marks in the related subjects (in the subject of History).

In the online applications, it was stated by the candidates that they are having the Postgraduate/Bachelor degree in History and only at the time of verification of the documents, when the respective certificates were produced, the authorities came to know that the candidates have the degrees in one branch of History and not in History as a whole.

The Court noticed that, in the present case, the educational qualifications required had been specifically mentioned in the advertisement. There was no ambiguity and/or confusion in the advertisement providing educational qualification and the post for which the applications were invited (History/Civics). Hence, there cannot be any deviation from the educational qualifications mentioned in the advertisement.

The Court observed that once having found that the respective candidates were not having the requisite qualification as per the advertisement, namely, the Postgraduate/Bachelor degree in History, which was the requirement as per the advertisement and thereafter their candidature was canceled, both the learned Single Judge as well as the Division Bench of the High Court hadrightly refused to interfere with the same.

It is pertinent to note that show-cause notices were issued so that the respective candidates can clarify and satisfy that they are having the requisite qualification of Postgraduate/Bachelor degree in History and after giving them the opportunity, the decision has been taken and that too after obtaining the Expert Committee’s opinion.

Hence, it was held that the candidature/selection of the candidates was rightly cancelled on the ground that they were not having the requisite qualification for the post – Postgraduate/Bachelor degree in History.

[Indresh Kumar Mishra v. State of Jharkhand, 2022 SCC OnLine SC 449, decided on 13.04.2022]


*Judgment by: Justice MR Shah


Counsels

For candidates: Senior Advocate V. Mohana and Advocate Mandavi Pandey

For JSSC: Senior Advocate Sunil Kumar

For State: Advocate Vishnu Sharma

For Impleaders: Senior Advocate Ajit Kumar Sinha

Case BriefsSupreme Court

Supreme Court: In a case relating to the appointment of the Vice-chancellor of the Sardar Patel University where the search committee had gone against the eligibility criteria prescribed by the UGC Regulations, the bench of MR Shah* and BV Nagarathna, JJ has held that the eligibility criteria when once fixed by the UGC under its regulations would apply to all the universities which are aided by the UGC to be bound by the said regulations even in the absence of the same being incorporated under the respective universities Act of the respective States.

Factual Background

Regulation 7.3.0 of UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 prescribes that a person shall have ten years of teaching work experience as a professor in the University system. It also provides for constitution of a Search Committee consisting of a nominee of the Visitor/Chancellor, a nominee of the Chairman of UGC, a nominee of Syndicate/Executive Council of the University. The Search Committee has to recommend the names of suitable candidates for appointment as Vice Chancellor of a University

The petitioner argued before the Court that ignoring Regulation 7.3.0 of the UGC Regulations, a   Search Committee was constituted under Section 10(2)(b) of the Sardar Patel University Act, 1955 (SPU Act) with no nominee of the Chairman of the UGC. According to the petitioner, even as per Section 10(2)(b), the Search Committee has only the authority to recommend a panel of suitable candidates. The Search Committee, in the present case, exceeded its jurisdiction and prescribed its own eligibility criteria for the   post of Vice Chancellor by diluting the eligibility criteria laid down in the UGC Regulations, 2010.

Analysis

The UGC Regulations are enacted by the UGC in exercise of powers under Section 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of the Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between State legislation and Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated   in Article 254 of the Constitution as the subject ‘education’ is in the Concurrent List (List III) of the Seventh Schedule of the Constitution.

Further, the eligibility criteria when once fixed by the UGC under its regulations would apply to all the universities which are aided by the UGC to be bound by the said regulations even in the absence of the same being incorporated under the respective universities Act of the respective States.

The Court noticed that the State of Gujarat did not take note of the communication from the UGC and instead the University left to the sweet will of the search committee to prescribe eligibility criteria for the appointment of the Vice-Chancellor of the University.

In such circumstances, the Court observed,

“… prescribing the eligibility criteria shall not be left to the sweet will of the search committee. It may lead to arbitrariness and different search committees in absence of any statutory guidelines and/or   prescription, may prescribe different eligibility criteria.”

[Gambhirdhan K. Gadhvi v. State of Gujarat, 2022 SCC OnLine SC 256, decided on 03.03.2022]


*Judgment by: Justice MR Shah


Counsels

For petitioner: Senior Advocate IH Syed

For UGC: Advocate Manoj Ranjan Sinha

For University: Senior Advocate Vinay Navare

For Vice-Chancellor appointee: Advocate Gaurav Agrawal

For State: Advocate Ruchi Kohli

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Indrajit Mahanty, CJ. dismissed a petition which was filed by the petitioner who was appointed as Junior Security Supervisor at (A-1 Level) in the category of Scheduled Tribe and had appeared for the computer-based test and physical standard test conducted by the ONGC. It was alleged that in the selection process the petitioner was awarded 72 marks but was not selected whereas the candidate (respondent 3) who got only 66.10 marks was wrongly and illegally selected by the respondent 2.

ONGC had filed the reply and in the said reply they placed reliance on the selection criteria fixed in the advertisement.

Court is of the considered view that the eligibility criteria fixed by the respondent No.2 was clear and categoric and it was clear that the marks obtained by a candidate in the CBT written examination would constitute 85% of the marks for consideration and the marks obtained in the qualifying examination would constitute 15% of the marks, therefore, totaling 100%. Resultantly, although respondent 3 had received 66.10 marks in CBT written examination, he received higher marks i.e. 10 marks due to the qualifying examination and the petitioner received 5 marks on account of having obtained 44% marks in his Class-XII examination.

The Court was of the view that petitioner can have no grievance for his non-selection especially since there was only one post for Scheduled Tribe and the respondent 3 in total obtained higher total marks than the petitioner.[Moon Raj Bahadur v. ONGC,  2021 SCC OnLine Tri 654, decided on 01-12-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For Petitioner(s) : Mr R.G. Chakraborty

For Respondent(s) : Mr T.D. Majumder, Sr. Adv., Mr Soumen Saha and Mr Tapash Halam

Case BriefsSupreme Court

Supreme Court: In a case were the Division Bench of Sanjay Kishan Kaul and M.M. Sundresh*, JJ., was sought to provide judicial interpretation of Section 29A(h) of the IBC, as amended by the Act, 2018, the Bench held that ineligibility has to be seen from the point of view of the resolution process. It can never be said that there can be ineligibility qua one creditor as against others. Rather, the ineligibility is to the participation in the resolution process of the corporate debtor. The Bench remarked,

“…what is required to earn a disqualification under the said provision is a mere existence of a personal guarantee that stands invoked by a single creditor, notwithstanding the application being filed by any other creditor seeking initiation of insolvency resolution process subject to further compliance of invocation of the said personal guarantee by any other creditor.”

An application was filed by RBL Bank under Section 7 of the Insolvency and Bankruptcy Code, 2016 to initiate corporate insolvency resolution process (CIRP) against Respondent 1. Pursuant to which a resolution plan, after certain modifications was submitted by the respondent 3 on 22-11-2017. Meanwhile, by way of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2017, Section 29A was introduced to the Code. It was specifically under 29A (h) that the CoC held a meeting to deliberate upon the impact of the amendment qua the eligibility of the Respondent 3 in submitting a resolution plan in the CIRP proceedings.

It was in the above backdrop that respondent 3 approached the NCLT praying for a declaration that he was not disqualified from submitting a resolution plan under sub-section (c) and (h) of Section 29A of the Code. NCLT, vide its order held that the Respondent 3 was eligible to submit a resolution plan, notwithstanding the fact that he did extend his personal guarantees on behalf of the Respondent 1 which were duly invoked by some of the creditors, on it. It was against the order; the Punjab National Bank approached the NCLAT. However, the Bank later sought to withdraw its appeal to change in circumstances, i.e.  the resolution plan gathered 78.50% vote share. The NCLAT allowed the withdrawal request without any liberty to challenge the same very impugned order.

Consequently, the NCLT approved the resolution plan submitted to it inter alia holding that there is a marked difference between extension and exclusion and therefore, the rigor of Section 12(1) of the Code would not get attracted on the facts of the case particularly when there were pending proceedings with interim orders, notably an interim order was issued by the NCLAT directing the adjudicating authority not to act on resolution plan until the final order of NCLAT. Further, the plan having received 75% vote share, having considered the techno-economic viability and feasibility of the plan, the application filed for approval of the resolution plan was allowed with a direction that the approved resolution plan shall come into force with immediate effect. The appeals against the said order of NCLT were dismissed on the ground that it cannot sit in appeal over the decision of the adjudicating authority or the CoC in the absence of any apparent discrimination.

Grounds for Challenge

Noticeably, the appellant had approached before NCLAT seeking to be impleaded as a party to the proceedings initiated by Punjab National Bank with an intention to continue the lis, however, the same was not favourably considered. The appellant even raised its objection to the withdrawal of appeal. The appellant had approached the Court with the following grievances:

  • The respondent 3, a promoter of the corporate debtor, was ineligible to submit a resolution plan under Section 29A(h) of the Code, as several personal guarantees executed by the Respondent 3 in favour of various creditors of the Respondent 1-corporate debtor stood invoked, prior commencement of CIRP.
  • The law which was prevailing on the date of the application has to be seen, therefore, the disqualification gets attracted on the date of filing of the application and on the same analogy not only Section 29A(h) but also Section 30(4) has to be interpreted.
  • The approval of the resolution plan was made after the mandatory period of 270 days, i.e. after the expiry of the CIRP period. Since there is clear infraction of Section 12, the 12 orders passed are liable to be interfered with.

Hence, the instant case was filed for seeking judicial interpretation of Section 29A(h) of the Insolvency and Bankruptcy Code, 2016, as amended by the Act, 2018.

Interpretation of Section 29A (h) of the Code

The idea of the Insolvency and Bankruptcy Code, 2016 being to facilitate a process of rehabilitation and revival of the corporate debtor with the active participation of the creditors, the Bench opined that there are two principal actors in the entire process, viz., (i) the committee of creditors and, (ii) the corporate debtor. Therefore, there can never be any other interest than that of the committee of creditors and the corporate debtor.

Observing that the objective behind Section 29A of the Code is to avoid unwarranted and unscrupulous elements to get into the resolution process while preventing their personal interests to step in, and to prevent certain categories of persons who may not be in a position to lend credence to the resolution process by virtue of their disqualification, the Bench relied on Ebix Singapore Pvt. Ltd. vs. COC of Educomp Solutions Ltd., 2021 SCC OnLine 707, to hold that the CoC even with the requisite majority, while approving the Resolution Plan must consider the feasibility and viability of the Plan and the manner of distribution proposed, which may take into account the order of priority amongst creditors as laid down in sub-section (1) of section 53 of the IBC. And that the CoC cannot approve a Resolution Plan barred under Section 29A of the IBC.

Rejecting the contention of the respondents that Section 29A(h) had to be literally interpreted to the extent that a personal guarantor is barred from submitting a resolution plan only when the creditor invoking the jurisdiction of the adjudicating authority has invoked a personal guarantee executed in favour of said creditor by the resolution applicant and no personal guarantee stood invoked by RBL Bank at the time of application to the adjudicating authority under Section 7 of the Code, the Bench emphasised that ineligibility has to be seen from the point of view of the resolution process. It can never be said that there can be ineligibility qua one creditor as against others. Rather, the ineligibility is to the participation in the resolution process of the corporate debtor. The manner of invocation can never be a factor for the adjudicating authority to adjudge, as against its existence. Adequate importance will have to be given to the latter part of the provision which also disqualifies a person whose liability under the personal guarantee executed in favour of a creditor, remains unpaid in full or in part for the amount due from him, upon invocation.

Difference between Extension and Exclusion

On the question of limitation, the Bench affirmed the views of adjudicating authority as confirmed by the appellate tribunal, noticing that there were earlier rounds of litigation with the interim orders. Therefore, the Bench held that delay of 106 days had been rightly condoned and excluded by the adjudicating authority by invoking Section 12(3) of the Code.

Hence, the Bench opined, the adjudicating authority was right in holding that there is a marked difference between extension and exclusion. Exclusion would come into play when the decision is challenged before a higher forum. Extension is one which is to be exercised by the authority constituted.

Factual Analysis

Admittedly, the Respondent 3 had executed personal guarantees which were invoked by three of the financial creditors even prior to the application filed. Therefore, the Bench held that rigor of Section 29A(h) of the Code obviously got attracted and the plan submitted by the Respondent 3 ought not to have been entertained. Accordingly, the Bench concluded, the adjudicating authority and the appellate tribunal were not right in rejecting the contentions of the appellant on the ground that the earlier appeals having been withdrawn without liberty, the issue qua eligibility cannot be raised for the second time, particularly when the appellant was not a party to the decision of the adjudicating authority on the first occasion.

Though the resolution plan submitted by the Respondent 3 was held ineligible and not maintainable, the Bench opined that much water had flown under the bridge as the requisite percentage of voting share had been achieve, majority of the creditors had given their approval to the resolution plan and the plan was also put into operation since 18-04-2018. The Bench remarked,

“We need to take note of the interest of over 23,000 shareholders and thousands of employees of the Respondent 1. Now, about Rs. 300 crores has also been approved by the shareholders to be raised by the Respondent 1. It is stated that about Rs. 63 crores has been infused into the Respondent No.1 to make it functional. There are many on-going projects of public importance undertaken by the Respondent No.1 in the nature of construction activities which are at different stages.”

Conclusion

Hence, considering the ultimate object of the Code, i.e. to put the corporate debtor back on the rails, and noticing that no prejudice would be caused to the dissenting creditors as their interests would otherwise be secured by the resolution plan itself, which permits them to get back the liquidation value of their respective credit limits, the Bench refused to disturb the resolution plan leading to the on-going operation of the Respondent 1. The appeal was dismissed.

[Bank of Baroda v. Mbl Infrastructures Ltd., 2022 SCC OnLine SC 48, decided on 18-01-2022]


*Judgment by: Justice M.M. Sundresh


Appearance by:

For the Appellant: Tushar Mehta, Solicitor General and Bishwajit Dubey, Advocate

For Respondent 1: Ranjit Kumar, Senior Advocate

For Respondent 3: Parag P. Tripathi, Senior Advocate


Kamini Sharma, Editorial Assistant has put this report together 


 

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: The Division Bench of Ali Mohammad Magrey, Sanjay Dhar, JJ., held that in case of appointments to Class-IV posts, higher qualification than the prescribed 10+2 may not be suitable for many reasons;

Firstly, a highly qualified person may not be in a position to discharge the menial work which is required to be done by a Class-IV employee;

Secondly, if such highly qualified candidates are allowed to compete with candidates with lower qualification, as prescribed, it is but obvious that they will score above them and would get selected to the detriment of the candidates possessing the requisite eligibility; and

Thirdly, such candidates of higher qualification, if selected, would always be looking for a better job and, as soon as they are selected in some other better discipline, they would leave the Class-IV post rendering the entire selection as useless, besides forcing the employer to get those posts re-advertised and re-filled.

Background

On one hand, the case of the appellant was that consequent to his selection as an Attendant (Class- IV) he was not appointed as such under “Physically Handicapped Category”. On the other hand, one Ahtisham-ul-Haq-petitioner had filed a Petition questioning the  selection of the appellant on the grounds that:

(i) the Advertisement Notice specifically prescribed maximum and minimum educational qualification and that no additional weightage was to be given for higher qualification;

(ii) that in terms of the Act of 1988, 3% reservation is provided for Physically Handicapped persons and this reservation operates horizontally; and

(iii) that the appellant has sworn a false affidavit saying that his educational qualification is not more than 10+2 when he actually held the qualification of B.A, M.A. (Political Science) and B.Ed.

The Single Judge, after clubbing the two Petitions, passed a common judgment holding that the candidates with higher qualification are not eligible to apply when the advertisement notice prescribes minimum and maximum qualification; the Court declared that the appellant was overqualified and, therefore, could not apply for the post in question. Hence, the single Judge quashed the selection list of Class-IV posts insofar as it related to the selection of the appellant figuring in the category of Physically Handicapped/Open Category, besides directing the official Respondents to accord consideration to the selection and the appointment of the Petitioner as against the Class-IV post (Attendant) on the basis of the merit secured by him in the selection process.

Opinion and Analysis

Opining that the appointment to the aforesaid Class-IV posts had to be made on the basis of the suitability vis-à-vis the qualification held by the person and the nature of the job, for which purpose the decision of the employer is final, provided it is not arbitrary in nature, the Bench clarified,

“To put it in other words, the suitability and the qualifications for any post have to be laid down by the employer and the same are not liable to be interfered with judicially, until and unless the policy decision in that regard is found to be irrational or arbitrary.”

The Bench stated that laying down of the criteria of the minimum and the maximum qualification for the Class-IV post as matric and 10+2, respectively, was neither irrational, unreasonable nor arbitrary. Accordingly, the decision of the Single Judge was held to be in accordance with legal position governing the subject, i.e any higher qualification than the one prescribed for a particular post may not be a suitable qualification and that the employer, in its wisdom, is justified in excluding candidates with higher qualification from the ambit of selection.

Decision

Consequently, the Bench held that higher qualification may not be suitable qualification for every post and, if candidates with higher qualifications are excluded, the same could not be faulted with and said to be illegal or perverse. Hence, the appeal was dismissed. [Firdous Ahmad Ganai v. State of J&K, 2021 SCC OnLine J&K 901, decided on 15-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Z. A. Shah, Senior Advocate with A. Hanan Kalwal, Advocate

For the Respondents: S. A. Makroo, Senior Advocate with Mohammad Amin Bhat, Advocate; and Bikramdeep Singh, Government Advocate

Case BriefsSupreme Court

“It needs no emphasis that the right to education guaranteed in terms of Article 21A of the Constitution would envisage quality education being imparted to the children which in turn, would signify that the teachers must be meritorious and the best of the lot. Any process which applied equally to all the candidates and was designed to garner the best talent, cannot be called arbitrary or irrational.”

Supreme Court: In the case relating to filing up of 69000 vacancies of Assistant Teachers in the State of Uttar Pradesh, the bench of UU Lalit* and MM Shantangoudar, JJ has dismissed the petitions challenging the fixation of 65-60% as minimum qualifying marks for Assistant Teacher Recruitment Examination- 2019 (ATRE-2019) and the eligibility of B.Ed. candidates for the posts of Assistant Teachers under the U.P. Basic Education (Teachers) Service Rules, 1981. While doing so, the Court said,

“If the ultimate object is to select the best available talent and there is a power to fix the minimum qualifying marks,… we do not find any illegality or impropriety in fixation of cut off at 65-60% vide order dated 07.01.2019.”

Resultantly, the Court has directed that the State Government shall now be entitled to fill up all the concerned posts in terms of the result declared on 12.05.2020. 


Relevant Facts


  • On 26-5-1999, a Government Order was issued by the State of U.P. for engagement of Shiksha Mitras (Parateacher) in order to provide universal primary education and to maintain teacher student ratio in primary schools by hiring persons who were not duly qualified at lesser cost as against the prescribed salary of a qualified teacher.
  • On 19-6-2013, a GO was issued giving permission for appointment of Shiksha Mitras on the post of Assistant Teachers in primary schools without having the eligibility and qualifications in terms of the RTE Act, 2009. Consequential executive orders were issued for absorption of 1,24,000 graduate Shiksha Mitras and 46,000 intermediate Shiksha Mitras.
  • On 27.05.2018 ATRE-2018 was conducted. In the results, 41,556 candidates were declared to have qualified with qualifying marks of 45- 40% out of which, 40296 candidates applied for counselling and were selected for appointment on 13.08.2018. About 4500 candidates were added to this number after re-valuation process.
  • On 06.01.2019 ATRE-2019 was conducted without there being any specification of minimum qualifying marks.
  • On 07.01.2019, an order was passed by the Special Secretary to the State Government: prescribing the minimum qualifying marks in respect of ‘Assistant Teacher Recruitment Exam 2019’ for Primary Schools run by Uttar Pradesh, Basic Siksha Council.
  • On 24.01.2019, 23rd Amendment to 1981 Rules was published. Consequently, Graduates having 50 per cent or more marks and holding degree of Bachelor of Education (B.Ed.) became eligible for posts of Assistant Master and Assistant Mistresses in Junior Basic Schools in the manner laid down in the Amendment. The concerned provisions in 1981 Rules dealing with eligibility of such candidate were given retrospective effect from 01.01.2018.

What the Supreme Court said


On eligibility of B.Ed. candidates

For maintaining standards of education in schools, the NCTE is specifically empowered to determine the qualifications of persons for being recruited as teachers in schools or colleges. In addition to regulating standards in “teacher education system”, the NCTE Act also deals with regulation and proper maintenance of norms and standards in respect of qualifications of persons to be recruited as teachers.

The eligibility or entitlement being already conferred by Notification dated 28.06.2018, the amendments to 1981 Rules were effected only to make the statutory regime consistent with the directives issued by the NCTE. The right or eligibility was not conferred by amendments effected to 1981 Rules for the first time but was only to effectuate the statutory regime in tune or accord with NCTE directives. Theoretically, even if such statutory regime was not made so consistent, the concerned candidates holding B.Ed. degrees could still be eligible and could not have been denied candidature for ATRE-2019. Pertinently, the performance in ATRE is one of the indicia that goes into making of quality points which in turn have to be considered at the stage of preparation of merit list for selection. By the time the actual process of selection was undertaken, the statutory regime in the form of 1981 Rules was perfectly consistent and in order.

Hence, the B.Ed. candidates were rightly allowed to participate in the instant selection process.

On 65-60% cutoff

Difference in nature of ATRE-2018 and ATRE-2019

In ATRE-2018, the percentage of qualifying candidates was thus 38.83%. On the other hand, the percentage of qualifying candidates in ATRE-2019 was 37.62%, which was almost equal to that in ATRE-2018. However, the number of qualified candidates in ATRE-2018 was less than the number of vacancies; while even with the cut off at 65-60% the number of qualified candidates in the present selection was far in excess of the number of posts. This happened because,

“Though the syllabus and subject wise allocation of marks were identical, the nature of ATRE-2019 was entirely different. The questions in ATRE-2018 were descriptive in nature and the duration of examination was three hours. However, those in ATRE 2019 were multiple choice – objective questions and the duration of examination was also different.”

Hence, there could be different parameters regarding minimum qualifying marks for ATRE-2019.

Candidates appearing in ATRE-2018 and ATRE-2019 formed different classes

All the candidates including Shiksha Mitras who appeared in ATRE 2018 formed one class while those who appeared in ATRE 2019 formed another class. There cannot be inter se connection or homogeneity between candidates appearing in one examination or selection with those appearing in another examination or selection.

“The basic norms of ATRE-2019 must be tested on their own and cannot depend upon para meters or norms on the basis of which ATRE-2018 was held. Otherwise the integrity of the examination process will get defeated and nullified.”

65-60% cutoff was fixed to garner best available talent

Even with 65-60% cutoff, the percentage of qualified candidates in ATRE-2019 was 37.62% which was quite close to 38.83% in ATRE-2018 and the number of qualified candidates was far in excess of the vacancies required to be filled up. Thus, cut off at 65-60% level in the present case, by itself cannot be termed as incorrect or illegal exercise of power. Those Shiksha Mitras who were meritorious and took the examination with seriousness that it deserved, certainly succeeded in securing marks more than the cut off of 65-60%. Hence,

“… the fixation of cut off at 65- 60% which was intended to select the best of the candidates cannot be termed as exclusionary nor was it intended to deprive the Shiksha Mitras of the advantage of weightage for experience.”

State Government is empowered to determine minimum marks “from time to time”

In terms of Rule 2(1)(x) of 1981 Rules, qualifying marks of ATRE are such minimum marks as may be determined ‘from time to time’ by the Government. If this power is taken to be conditioned with the requirement that the stipulation must be part of the instrument notifying the examination, it would lead to illogical consequences. On one hand, the relevant Rule requires passing of ATRE while, on the other hand, there would be no minimum qualifying marks prescribed. Hence, the Government must be said to be having power to lay down such minimum qualifying marks not exactly alongside instrument notifying the examination but at such other reasonable time as well.

Therefore,

“If the Government has the power to fix minimum qualifying marks ‘from time to time’, there is nothing in the Rules which can detract from the exercise of such power even after the examination is over, provided the exercise of such power is not actuated by any malice or ill will and is in furtherance of the object of finding the best available talent.”

Third chance to Shiksha Mitras

Even though the challenge by Shiksha Mitras was dismissed, the Court directed that one more opportunity shall be afforded to Shiksha Mitras to compete in the next selection. The Court left it to the discretion of the State Government to consider the manner and the modalities in which such opportunity can be availed of.

[Ram Sharan Maurya v. State of Uttar Pradesh, 2020 SCC OnLine SC 939, 17.11.2020]


*Justice UU Lalit has penned this judgment

Advocates who appeared in the matter

For the Shiksha Mitras: Senior Advocates P.S. Patwalia, C.A. Sundaram, Rakesh Dwivedi,  Rajiv Dhawan, Nidhesh Gupta, V. Shekhar, S. Guru Krishna Kumar, Meenakshi Arora, Dinesh Diwedi, K.T.S. Tulsi, Mr. Jayant Bhushan, and advocates Gaurav Agrawal and Tanya Agarwal.

For State: Additional Solicitor General Aishwarya Bhati

For B. Ed./BTC Candidates: Senior Advocates H.N. Salve,  R. Venkataramani,  Pallav Shishodiya, K.V. Vishwanathan and V. Mohana

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah*, JJ had held that it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post, not the Courts.

“Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts.”

In the present case, applications were invited by the appellant Bank for the post of Peon by publishing an advertisement in the local newspaper. The eligibility criteria mentioned in the said advertisement was that a candidate should have passed 12th class or its equivalent with basic reading/writing knowledge of English. It specifically provided that a candidate should not be a Graduate as on 01.01.2016

The respondent herein – original writ petitioner, based on the information provided by him in his application, was appointed. While scrutiny of the documents was going on, the appellant Bank came to know about a graduate certificate showing that the respondent was a graduate since 2014.  Thus, it was noticed and found that he was not eligible as per the advertisement and the Circulars and that the respondent deliberately, wilfully and intentionally suppressed the fact that he was a graduate. Therefore, his candidature was cancelled and he was not allowed to join the bank in subordinate cadre. The High Court of Orissa, however, directed the appellant Bank to allow the respondent to discharge his duties as a Peon as per the appointment order.

The Bank submitted that considering the nature of the post – Peon/subordinate cadre, a conscious decision was taken by it that a candidate having the qualification of graduation shall not be eligible and the candidate who passed in 12th standard or its equivalent with basic reading/writing knowledge of English shall only be eligible. Hence, unless it is found to be most arbitrary, the same cannot be the subject-matter of a judicial review.

The Court held that prescribing the eligibility criteria/educational qualification that a graduate candidate shall not be eligible and the candidate must have passed 12th standard is justified and it is a conscious decision taken by the Bank which is in force since 2008. Therefore, the High Court has clearly erred in directing the appellant Bank to allow the respondent-original writ petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement.

Considering the facts and circumstances of the case at hand, the Court noticed that in the application, the respondent did not disclose that he is a graduate from 2014 and only mentioned his qualification as 12th pass. Therefore, the respondent deliberately, wilfully and intentionally suppressed the fact that he was a graduate. Had it been known to the bank that he was a graduate, he would not have at all been considered for selection as a Peon in the bank.

The Court further held that once having participated in the recruitment process as per the advertisement, thereafter it is not open for him to contend that acquisition of higher qualification cannot be a disqualification and that too when he never challenged the eligibility criteria/educational qualification mentioned in the advertisement.

[Chief Manager, Punjab National Bank v. Anit Kumar Das, 2020 SCC OnLine SC 897, decided on 03.11.2020]


*Justice MR Shah has penned this judgment 

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Augustine George Masih, J. disposed of the present petition on grounds of it being infructuous.

The Petitioner challenged the order passed by the Collector, Patiala; order passed by the Divisional Commissioner, Patiala Division; and order passed by the Financial Commissioner, Punjab, whereby the appointment of Jagtar Singh (Respondent 5) was upheld as Lambardar of Village Basma, Tehsil Rajpura, District Patiala.

The petitioner contended that Jagtar Singh had defrauded the official respondents and the State as he had with a mala fide intention shown that he had purchased some land by way of sale deed, which was done with an intention to fulfill the eligibility condition for appointment to the post of Lambardar. The said land was, in fact, sold by the petitioner to another seller on 17.01.2011. He, therefore, contended that the appointment could not be sustained and deserved to be set aside. Pursuant to the said action of Jagtar Singh, his own appointment as Lambardar of the village had been cancelled by the District Collector.

It was argued by the opposing counsel that on the date of appointment of the said respondent i.e, he was eligible and, therefore, the appointment could not be said to be illegal. Since the appointment of the respondent had been cancelled, the present writ petition had been rendered infructuous. It was further asserted that the date of eligibility was the date of appointment by the Collector.

After considering the submissions made by the counsel for the parties, the Court held that in the light of the eligibility to be seen being the date of appointment on the post of Lambardar, the appointment of Jagtar Singh could not be said to be illegal as, on the said date, he was eligible for appointment to the post of Lambardar. In case of any violation of the statutory rules at a subsequent stage by a Lambardar, the competent authority i.e. the District Collector was entitled to take action against such an appointed Lambardar, which had been taken by the District Collector, S.A.S. Nagar. Since Respondent 5 was already removed from the post of Lambardar, the present writ petition was rendered infructuous. [Satnam Singh v. Financial Commissioner, Punjab, 2019 SCC OnLine P&H 2260, decided on 26-11-2019]

Case BriefsSupreme Court

Supreme Court: Stating that the essential qualifications for appointment to a post are for the employer to decide, the bench of Arun Mishra and Navin Sinha, JJ said,

“The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re­writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review.”

The Court further held that if the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law.

“In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”

The Court was hearing the appeal filed against the order of the High Court holding that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors under separate advertisements dated 04.01.2012 and 31.03.2015.

It was submitted before the Court that the academic qualifications coupled with the requisite years of practical experience in the manufacturing and testing of drugs were essential qualifications for appointment. Research experience in a research and development laboratory was a desirable qualification which may have entitled such a person to a preference only. The latter experience could not be equated with and considered to be at par with the essential eligibility to be considered for appointment. It was argued that the High Court erred in misreading the advertisement to redefine the desirable qualification as an essential qualification by itself.

The Court said that the plain reading of the advertisement provides that a degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University coupled with the requisite years of experience thereafter in manufacturing or testing of drugs were essential qualifications. Preference could be given to those possessing the additional desirable qualification of research experience in the synthesis and testing of drugs in a research laboratory.

The Court also said that

“an expert committee may have been constituted and which examined the documents before calling the candidates for interview cannot operate as an estoppel against the clear terms of the advertisement to render an ineligible candidate eligible for appointment.”

[Maharashtra Public Service Commission v. Sandeep Shriram Warade, 2019 SCC OnLine SC 652, decided on 03.05.2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise & Service Tax Appellate Tribunal (CESTAT): This appeal was filed before Sulekha Beevi C.S., Member.

Facts of the case were such that appellants were engaged in manufacturing of wheels and components for cars, jeeps, tractors, commercial vehicles, etc. and were registered with the Central Excise Department.

It was found that assessee had availed CENVAT credit of service tax paid on various input services including outward freight. A show cause notice was issued proposing to recover the ineligible availed credit along with interest for which penalty was imposed. After due process of law, in respect of Goods Transport Agency services the adjudicating authority did not allow CENVAT credit but for all other services the same was allowed. Hence, this appeal was filed before the Tribunal.

M. Kannan, counsel on behalf of the appellant had submitted that appellant had sold goods to customers on FOR basis. Therefore, place of removal should be buyer’s premises. Adjudicating authority found the appellant to be not eligible for the credit of the service tax paid on the freight for outward transportation of goods upto buyer’s premises. Whereas, L. Nandakumar, counsel on behalf of respondent contended that appellant needs to produce documents in order to prove that the place of removal is the buyer’s premises. Counsel relied on the case of CCE v. Ultra Tech Cement Ltd., (2018) 9 GSTL 337 (SC) where it was held that credit is eligible from the place of removal upto the buyer’s premises.

Tribunal observed that in cases such as this when the sale takes at buyer’s premises, the place of removal is the buyer’s premises. Thus, it was necessary to determine the place of removal to consider the eligibility of credit of service tax paid on freight charges upto the buyer’s premises. Therefore, Tribunal concluded it to be a fit case for remanding it to the adjudicating authority to look into the issue of eligibility of credit on GTA services after determining the place of removal after considering the decision referred above. Therefore, the impugned order was set aside. [Wheels India Ltd. v. Commissioner (GST), 2019 SCC OnLine CESTAT 46, decided on 14-03-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sunil Gaur, J., disposed of a writ petition before it. The petitioner, an unsuccessful candidate for the post of Trained Graduate Teacher (TGT) in Mathematics, had filed the writ petition against the appointment of Respondent 7, who was selected as TGT in Dhanpatmal Virmani Secondary School, Roop Nagar, Delhi.

The petitioner’s case was that the Masters’ degree held by Respondent 7 was fabricated and that there was interpolation of marks scored by Respondent 7 in the interview. The petitioner submitted that while she was working as a guest teacher in another school, Respondent 7’s ineligibility gave her a valid claim to be appointed as TGT. The petitioner submitted that several representations in this regard were made but to no avail. She also brought to light the fact that she had sent a legal notice to the respondents but there was no response to it.

The Court adjudged that a proper inquiry was called for, considering the fact that Respondent 7’s marks were handwritten whereas the other candidates’ were printed in the interview score sheet and that Respondent 7 claimed to have earned an MA in Mathematics from Kalinga University, Raipur, Chhatisgarh, which is a full time regular course, while she was in regular service in a MCD school within the same period. The Court directed that the conclusions of the inquiry be communicated to the petitioner so she may avail remedy available under law. Petition disposed of. [Ashu Rani v. Dhanpatmal Virmani Senior Secondary School,2018 SCC OnLine Del 7127, decided on 07.02.2018]

Case BriefsSupreme Court

Supreme Court: Stating that ‘transfer’ and ‘recruitment by transfer’ are entirely two different concepts, the Court said that no doubt transfer can be from one category to another category or within the class if the rule permits interchangeability of the categories within a class but any other transfer both intra category and inter category are in fact, under law is a selection and appointment by way of a transfer from one category to another or from one class to another class or from one service to another.

Explaining further, the Court said that transfer in relation to service simply means a change of a place of employment within an organization. Such transfer being to a similar post in the same cadre and therefore, obviously such a transfer does not result in the termination of his lien in the parent cadre but recruitment by transfer is a different service concept altogether. Once an employee undergoes a transfer by way of a recruitment to a different cadre or to a different service, the employee loses his lien in the parent cadre/service. In that process, there is an induction to a new cadre and sometimes with a different type of duty. Such induction has distinct consequence on the career of the employee different from what would have been the normal course had he continued in the parent service.

The bench of Kurian Joseph and R. Banumathi, JJ also explained the difference between ‘Seniority’ and ‘eligibility’ and said that as far as promotion or recruitment by transfer to a higher category or different service is concerned if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being superseded. Other things being equal, senior automatically gets promoted. But in the case of selection based on merit-cum-seniority, it is a settled principle that seniority has to give way to merit. Only if merit being equal senior will get the promotion. It was held that merely because a person is senior, if the senior is not otherwise eligible for consideration as per the rules for promotion, the senior will have to give way to the eligible juniors. [Palure Bhaskar Rao v. P. Ramaseshaiah, 2017 SCC OnLine SC 388, decided on 12.04.2017]