Naveen Sharma v. Union of India and Anr.

(ii) It was noticed by the Division Bench that Govt. of NCT of Delhi initially issued Recruitment Rules for TGT (Modern Indian Language- MIL) which prescribed the following qualifications: “Name of the post Educational and other qualifications required for direct recruits 1 8 T.G.T. (MIL) (i) B.A. (Honours) in one of the Modern Indian Languages (MIL) concerned or B.A. with MIL concerned as one of the elective subjects from a recognized University having 45% marks in aggregate with one additional language or one school subject at Degree level. OR Equivalent Original Degree in MIL concerned from a recognized University having 45% marks in aggregate.” (Emphasis Supplied) Further, in 1997 amendments were made for the post of TGT English, Mathematics, Social Science and Physical Science/Natural Science as under: Educational and other qualifications required for direct recruits A Bachelor‟s degree (Honours/Pass) or equivalent from a recognized University having secured 45% marks in aggregate, in two school subjects of which at least one out of following should have been at elective level:-

1. English

2. Mathematics

3. Natural/Physical Science

4. Social Science Note: Main subjects for T.G.T. (Natural Science/Phy. Science) shall be Physics, Chemistry, Biology, Botany and Zoology. Social Science: - History/Political Science/Economics/Business Studies/Sociology/Geography/Psychology.” (Emphasis Supplied) Thereafter, corrigendum dated March 30, 2010, defining the expression „elective subject; occurring in the aforesaid Recruitment Rules was finally issued as under: “In supersession to this office corrigendum no.F.DE.3(44)/EIII/99/2209 dated 14/03/2000, the term „Elective‟ as specified in the Recruitment Rules may be read as under: “The candidate should have studied the subject concerned as mentioned in the RRs in all parts/years of graduation. The elective word may also include main subject as practiced in different universities.” The above definition of elective subject shall apply to all orders of promotion and Direct Recruitment issued by this office from time to time. This issues with the prior approval of the Competent Authority.”

(iii) The degrees possessed by the respondents therein and the posts against which they applied may be tabulated as under: Name of the candidate Post applied for Qualification Sachin Gupta TGT (Social Science) B.Com (Hons.) (Studied Economics only in second and third year of graduation). Vikram Singh TGT (Hindi) B.A. Programme (Studied Hindi in second and third year of graduation) Nainika TGT (English) B.A. Programme (Studied English in first and second year of graduation) Neelam Rana TGT (English) B.Sc. (Did not study English in any of the three years of graduation) M.A. (English) Snehlata TGT (Sanskrit) B.A. (Did not study Sanskrit in any of the three years of graduation) Thereafter, cleared three papers in Sanskrit and obtained B.A. (Additional) degree, having studied Sanskrit for one year. (iv). The Division Bench was of the considered view that Sachin Gupta, who had applied for TGT (Social Science), Vikram Singh, who had applied for TGT (Hindi) and Nainika, who had applied for TGT (English) had studied one of the main subjects prescribed for TGT for two years, in which the subject was taught during the graduation course undertaken by them and, as such, are eligible to be appointed to the respective post of TGT (English/Hindi/Social Science). As regards Snehlata, who had applied for TGT (Sanskrit), it was observed that there was a material difference between the position of Sachin Gupta, Vikram Singh and Nainika who had applied for TGT (Social Science), TGT (Hindi) and TGT (English) respectively. Further, since Snehlata had not studied Sanskrit subject in any year of graduation but had subsequently studied the same for one year and cleared three papers pertaining to Sanskrit, it was held that Snehlata was not entitled for appointment to the post of TGT (Sanskrit). As regards, Neelam Rana, who had applied for TGT (English), it was observed that the controversy is not in the context of what would be an elective subject studied during graduation as she had graduated in B.Sc. (Botany) but sought the appointment on the strength of having obtained post graduation degree in MA (English), wherein she studied „English‟ as a subject for two years. Neelam Rana was held eligible for appointment to the post of TGT (English) considering the fact that no material had been placed to show that the person who had studied English at graduation level would be better equipped to teach „English‟ to students vis-à-vis the person who has obtained a post graduation degree in English language. Reliance in this regard was placed upon Manju Pal v. Government of National Capital Territory of Delhi, 2002 (61) DRJ 58. Neelam Rana was accordingly found entitled for appointment as she possessed a higher qualification than the qualification required for the appointment to the post. Reliance was also placed upon Directorate of Education and Others v. Kalpana Pandey, a judgment passed by the Division Bench of this Court, decided on September 18, 2012 in LPA No.640/2010.

12. Factual position in Srishti v. Govt. of NCT of Delhi, 2017 SCC OnLine Del 8620 (a Division Bench judgment of this Court) relied by learned counsel for the petitioner may next be considered. The petitioner Srishti therein worked as TGT (English) on contractual basis with Directorate of Education, Govt. of NCT of Delhi and had studied English in Class 10th, 12th, graduated in B.A. (Hons.) in Sociology and studied English in the first year of graduation. Further, she completed B.Ed. with English as one of the teaching subjects and also obtained degree in M.A. (English). She also appeared for CTET examination and further completed her M.Ed. in 2012. Re-engagement of petitioner was rejected in terms of circular dated July 09, 2015 as she did not possess requisite qualification as prescribed in Recruitment Rules, which provided that the applicant ought to have studied the concerned subject at least for two years. Placing reliance upon the case of Directorate of Education v. Neelam Rana, WP(C) No.575/2013 (already referred above in the case of Sachin Gupta), petitioner claimed that she was eligible having obtained a degree in post graduation in the concerned subject. The petition was dismissed by the Tribunal relying upon Jyoti K.K. v. Kerala Public Service Commission, (2010) 5 SCC 596 holding that unless the graduate qualifications are in the same faculty, the higher qualification in that faculty cannot be stated to presuppose the acquisition of lower qualification prescribed for the post. The Division Bench of this Court, after discussing Sachin Gupta and Others (supra), Directorate of Education v. Neelam Rana (supra), State of Punjab v. Anita, Civil Appeal No.7983-7986 and 7970-7971 of 2009 decided on September 24, 2014 and Jyoti K.K. v. Kerala Public Service Commission (supra) held that petitioner was eligible for being re-engaged for the post of TGT (English) since she had studied „English‟ at post graduation level and has also studied „English‟ as a subject for one year in B.A. (Hons) in Sociology. Also, observations in P.M. Latha v. State of Kerala, (2003) 3 SCC 541 were found to be distinguishable since it related to case of teachers in primary classes, in relation to whom it had been held in other judgments that eligibility condition for primary teachers who have to teach small children are much different from those who have to teach the higher classes or graduates.

13. Before considering the precedents in Sachin Gupta (supra) and Srishti (supra), it is pertinent to observe the decision of this court in Govt. of NCT of Delhi and Ors. v. Seema Kumari, W.P.(C) 8945/2023 decided on August 08, 2023, wherein the case of respondent Seema Kumari for appointment to the post of TGT (SST) was considered. The Recruitment Rules therein stipulated for possessing a Bachelor‟s Degree (Hons/Pass) from a recognized University or equivalent having secured at least 45% marks in aggregate and studied the following ancillary/subsidiary subject at a level not lower than prescribed as under:

have studied the subject concerned as mentioned in Recruitment Rules in all parts/years of graduation. The respondent therein had done her Bachelor of Arts (Hons) degree in Hindi, in which the subsidiary paper of Political Science I & II was only studied in second year which she cleared in the third year. She also relied upon Post Graduate degree in M.A. (Political Science) for meeting out the prescribed educational qualifications. The stand of the petitioner was that graduation in Hindi is nowhere connected with SST and the respondent did not fulfill the prescribed essential qualifications since she had not studied Political Science as a subject for three years. It was also contended that Post Graduation degree would not be relevant for appointment as TGT (SST) and would be relevant only for the purpose of relaxation if the candidate had not secured 45% marks in graduation. Further, the respondent was ineligible for being appointed as TGT (SST) as per Recruitment Rules since she did not study the concerned subject in all parts/years of graduation. This court agreeing with the contentions raised on behalf of petitioner (Govt. of NCT of Delhi) held that the respondent (Seema Kumari) was ineligible for appointment to post of TGT (SST) as per Recruitment Rules since she did not possess the required essential qualification in Social Science at graduation level. It was further held that Post Graduation degree of the respondent cannot be considered as meeting the eligibility criteria overlooking the Rules and the advertisement since pursuing Post Graduation was not a requirement in terms of Rules and advertisement to the post of TGT (SST). The order passed by the Tribunal in O.A. 3212/2017 was accordingly set aside. The observations in paragraphs 9 to 20 in this regard distinguishing Puneet Sharma & Ors v. Himachal Pradesh State (supra) and placing reliance upon North Delhi Municipal Corporation v. Kavinder and Ors. (supra) are pertinent to be noticed and may be beneficially reproduced: “9. Having heard the learned counsel for the parties, the issue which arises for determination is whether the Tribunal is justified in allowing the OA. The answer to the same has to be in the negative. We have perused the recruitment rules / advertisement issued for the post in question, from which it is clear that the essential qualification is Bachelors Degree from a recognized University in the subject concerned. The requirement of Post Graduation is only to the extent of relaxing the requirement of 45% in Bachelors Degree. So, the plea of Mr. Bhardwaj in that regard, that the respondent possesses Post Graduation in Political Science which is a social science and hence meets the eligibility condition, does not appeal to us.

10. Even the plea that a higher qualification must necessarily presuppose possession of a lower qualification of graduation in Political Science is also without any merit.

11. Mr. Bhardwaj has placed reliance on paragraph 37 of the judgment of the Supreme Court in the case of Puneet Sharma & Ors. Etc. (supra), which reads as under: “37. The considerations which weighed with this court in the previous decisions i.e. P.M. Latha, Yogesh Kumar, Anita (Supra) were quite different from the facts of this case. This court‟s conclusions that the prescription of a specific qualification, excluding what is generally regarded as a higher qualification can apply to certain categories of posts. Thus, in Latha and Yogesh Kumar as well as Anita (supra) those possessing degrees or postgraduation or B.Ed. degrees, were not considered eligible for the post of primary or junior teacher. In a similar manner, for “Technician-III” or lower post, the equivalent qualification for the post of Junior Engineer i.e. diploma holders were deemed to have been excluded, in Zahoor Ahmed Rather (supra). This court is cognizant of the fact that in Anita as well as Zahoor (supra) the stipulation in Jyoti (supra) which enabled consideration of candidates with higher qualifications was deemed to be a distinguishing ground. No such stipulation exists in the HPSEB Rules. Yet, of material significance is the fact that the higher post of Assistant Engineer (next in hierarchy to Junior Engineer) has nearly 2/3rds (64%) promotional quota. Amongst these individuals, those who held degrees before appointment as a Junior Engineers are entitled for consideration in a separate and distinct sub-quota, provided they function as a Junior Engineer continuously for a prescribed period. This salient aspect cannot be overlooked; it only shows the intent of the rule makers not to exclude degree holders from consideration for the lower post of Junior Engineers.”

12. The Supreme Court has held that if the intent of the rule makers is not to exclude degree holders (person with higher qualification) from consideration for the lower post of Junior Engineers, then such person cannot be said to be ineligible. Suffice to state, the said judgment has no applicability to the facts of this case inasmuch as, the rule / advertisement clearly stipulates the purpose of a person possessing Post Graduation in Political Science is only for relaxing the 45% marks required at the graduation level and not for any other purpose.

13. So, in that sense the respondent not having the required essential qualification in Social Science at graduation level, would not meet the eligibility criteria.

14. The plea of Mr. Bhardwaj that the respondent having studied in Political Science in graduation with two papers would also meet the eligibility is also not appealing. This we say so, because the candidate is required to have studied the subject as elective. In other words, the elective subject is that subject which is counted and included in the marks or the grading awarded to the students. Concedingly, the marks of Political Science as a subsidiary subject are not included in the marks or the grading awarded to the respondent.

15. So in that sense, having studied Political Science as a subsidiary subject would not help the case of the respondent.

16. Mr. Singh is justified in relying upon the judgment of the Supreme Court in the case of North Delhi Municipal Corporation v. Kavinder and Ors., (2021) 11 SCC 353, wherein the facts of the case are that an advertisement was issued for inviting applications for various posts in the Municipal Corporation of Delhi on a competitive basis. Among the posts that were advertised included the post of Labour Welfare Superintendent in the Municipal Corporation. The qualification and experience required for the post were prescribed as follows:

19. The judgment of the Supreme Court is clearly applicable to the fact of this case. The Tribunal could not have directed that the Post Graduation degree of the respondent be considered as meeting the eligibility criteria overlooking the rules and the advertisement itself. The only benefit a candidate could have accrued having studied Post Graduation (Political Science in the case of the respondent herein) is to the extent of relaxation of the requirement of 45% marks at graduation level and nothing more. In other words, possessing Post Graduation was not a requirement in terms of the rules and advertisement for making appointment to the post of TGT (SST). In fact, we find that the observations of the Tribunal in paragraph 17 which we have reproduced above, could not have been given by the Tribunal, contrary to the intent of the rule/advertisement.

20. Accordingly, the appeal is allowed and the order of the Tribunal dated November 24, 2022 is set aside.”

14. In the aforesaid background, it may be observed that in Govt. of NCT of Delhi v. Seema Kumari (supra), this Court has already taken a view after referring to Puneet Sharma & Ors. v. Himachal Pradesh State (supra) and relying upon North Delhi Municipal Corporation v. Kavinder & Ors. (supra), that attaining a Post Graduation degree cannot be considered as meeting the eligibility criteria overlooking the Rules and advertisement unless the candidate has studied the concerned subject at relevant level. In view of above, the proposition in Neelam Rana (supra) which was decided along with Sachin Gupta (supra), relied upon by learned counsel for the respondent, cannot be treated as a binding precedent, wherein the petitioner Neelam Rana had been granted relief though she had not studied the concerned subject during graduation but had thereafter obtained a Post Graduation degree in English.

15. It may further be observed that Srishti v. Govt. of NCT of Delhi (supra) was not referred while considering Seema Kumari (supra) decided by this Court but in view of ratio laid down in North Delhi Municipal Corporation v. Kavinder & Ors. (supra), the same also cannot be considered as a binding precedent, as the petitioner Srishti therein had studied the relevant subject of English only in first year of graduation in B.A. (Hons) in Sociology and had thereafter obtained a degree in M.A. (English).

16. Apart from above, Dharun K. v. Shino M. Gopal & Ors. (supra) relied by learned counsel for the petitioner is distinguishable and does not further the case of the petitioner. The High Court therein after considering the ratio in various judgments, took note of the fact that Rule 10(a)(ii) of Part II of KS & SSR issued by Kerala Public Service Commission after commencing with non obstante clause provided that the qualifications recognized by executive orders or standing orders of Government, as being equivalent to a qualification specified for a post in the Special Rules or higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post, would be treated as sufficient for the post. Further, the said rule would apply to every selection even if its applicability is not declared specifically in the notification. As such, it was held that holding a Bachelor‟s Degree in Mechanical Engineering which was qualification for the post of Workshop Supervisor/Manager, can be held to presuppose holding of the lower prescribed qualification for the post of Tradesman (Welding), in view of Rule 10(a)(ii) of Part II of KS & SSR issued by Kerala Public Service Commission.

17. It is pertinent to observe that in Unnikrishnan CV and Others v. Union of India and Others, 2023 SCC OnLine SC 343, the Hon‟ble Apex Court reiterated the observations in Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad, (2019) 2 SCC 404, wherein it was held that the State as an employer is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of job, aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading to the acquisition of various qualifications etc. Further, judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualification over any other qualification. Equivalence of qualification is a matter for the State as Recruiting Authority to determine. In the aforesaid case, the Hon‟ble Apex Court observed that appellants preferred the writ petition on the premise that they had been denied promotion on the ground that they possess two years‟ diploma and not three years‟ diploma by ignoring the fact that denial of promotion is on the ground that candidates did not possess the prescribed requisite qualification, namely, Diploma in Civil Engineering; and Diploma in Draughtsman Estimating and Design (DED) possessed by them is not as prescribed under the Rules. It was further observed that no further material had been placed on record by the appellants to demonstrate that Diploma in DED is equivalent to Diploma in Civil Engineering. In the light of aforesaid legal position, we are of the considered view that in absence of any rule prescribing that acquisition of higher qualification presupposes holding of lower qualification, the petitioner cannot be held to meet requirement of essential qualification by mere possession of Post Graduate degree in Hindi.

18. Reverting back to the facts of the present case, it may be observed that the issue for consideration in one of the aspects is similar to the case of Govt. of NCT of Delhi & Ors. v. Sachin Gupta, W.P.(C) 1520/2012, GNCT of Delhi & Ors. v. Vikram Singh, W.P.(C) 4483/2012 and Govt. of NCT of Delhi & Ors. v. Nainika, W.P.(C) 4301/2012, wherein the question for consideration was if the petitioners were eligible for appointment to the post of TGT in respective subjects having studied the concerned subject for ‘two years at graduation level’ instead of three years since the subject is taught in some Universities only for two years at graduation level. The Division Bench reasoned that the ethos of the prescription contained in corrigendum dated March 30, 2010 that the candidates should have studied the subject in all years of graduation is that the candidate should have a deep understanding of the subject in which he is desirous of imparting education to the children. It was also observed that if a literal interpretation in terms of corrigendum is given, all candidates who had studied the concerned subject i.e. the subject for which they had applied from the Universities which are not teaching the subject in all three years of graduation course offered by them would be rendered ineligible for appointment to the post of TGT despite the fact that they had studied the concerned subject in all parts/years in which the subject is taught by the University and have a good understanding thereof. Further, it was emphasized that if a literal meaning of a statute or rule leads to absurdity, the principle of literal interpretation need not be followed and recourse should be taken to the purposive and meaningful interpretation to avoid injustice, absurdity and contradiction so that the intent of the purpose of legislature is given effect to. Accordingly, the corrigendum dated March 30, 2010 was directed to be interpreted as the candidate should have studied the subject concerned as mentioned in the Recruitment Rules in all parts/years in which the subject was taught during the graduation course.

19. We are of the considered view that it cannot be treated as an absolute proposition of law that even if the concerned subject has been studied in a particular course in a University only for one year, the same has to be considered to meet the eligibility condition of having studied the subject for all the three years on the ground that the same is taught by the University only for one year in the concerned course. However, the same is subject to the caveat that if it is demonstrated that the curriculum for a period of three years of study is covered in a period of two years, the question for equivalence can still be considered.

20. In Sachin Gupta (supra), it has been observed in para 11 & 12 that so far as study of Hindi (Modern Indian Language) as a subject in new B.A. (Programme) course is concerned, it was introduced by Delhi University w.e.f. July 2004, which was earlier taught for a period of three years of graduation course. Also, the perspective and objectives of the new B.A. (Proramme) course were noticed which provided for the students to enter the wider world of work or go for higher studies after three years of college. As such, the respondent Vikram Singh in W.P.(C) 4483/2012 taken up along with Sachin Gupta (supra) was held to be eligible for appointment to the post of TGT (Hindi). The aforesaid equivalence having been considered, the petitioner in the present case in that sense, satisfies the eligibility criteria for the purpose of appointment to the post of TGT (Hindi) which is a Modern Indian Language.

21. Before concluding, we may observe that with advent of technology, the educational curriculum has been changing and new courses have evolved, making them vocation oriented, upkeeping with global education standards. However, at times, the curriculum varies from University to University and also the duration of study of the same subject for the number of years may vary. This has resulted in a situation wherein the students undertaking the similar courses stand ineligible for applying to various jobs in the government as the Recruitment Rules remain antiquated, inflexible and have not been changed with the changing curriculums. It may be in consonance with the objective of National Education Policy to streamline and provide uniform/consistent eligibility conditions for the recruitment to the posts of Primary Teachers, TGTs and PGTs since the curriculum to be taught is generally similar across different educational boards including CBSE. The different eligibility conditions prescribed by different Institutions under the same Board are not comprehensible as it keeps out large number of eligible candidates ineligible. A copy of this order be forwarded to the Ministry of Higher Education, Govt. of India to look into the aforesaid aspect of prescribing of appropriate guidelines for inclusion/amendment of Recruitment Rules for the purpose of recruitment to the posts of Primary Teachers, TGTs and PGTs in view of introduction of new curriculum and degrees by the Universities and repeated litigations cropping up before the Courts, in this regard.

22. For the foregoing reasons, we are unable to concur with the reasoning given by the Tribunal. The order passed by the Tribunal is accordingly set aside. Respondents are directed to consider the petitioner eligible for interview to the post of TGT (Hindi), if he meets out the other conditions of eligibility. Needful shall be done within a period of four weeks, from the receipt of copy of this order. Further, petitioner shall be appointed within four weeks thereafter, if he qualifies the interview and falls within merit list. If appointed, petitioner shall be notionally granted the seniority along with fixation of pay and consequential benefits w.e.f. the date, the other candidates in the said selection stand appointed. However, petitioner shall not be entitled to any arrears of salary. Writ petition is accordingly allowed. In the facts and circumstances, no orders as to costs. Pending applications, if any, also stand disposed of.

(ANOOP KUMAR MENDIRATTA) JUDGE (V. KAMESWAR RAO)

JUDGE SEPTEMBER 25, 2023