O R D E R
Per: Hon'ble Suchitto Kumar Das, Administrative Member Due to parity in the nature of grievance and facts pleaded, OA/350/0972/2017 and OA/350/0973/2017 are being heard out analogously, upon due notice, to be disposed of by this common order, with consent of all the sides.
2. The applicant in OA/350/0972/2017 has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"a) To set aside and quash the Impugned Speaking Order No. RRB/KOL/STWI/14/Pt. I dated 15.05.2017 issued by Secretary, Railway Recruitment Board, Kolkata.
b) To set aside and quash the Impugned Show Cause Notice being No. RRB/KOL/STWI/14/Pt. I dated 17.08.2016 issued by Secretary, for Chairman, Railway Recruitment Board, Kolkata.
c) To direct the respondents to consider the case of the applicant for appointment to the post of Sr. Section Engineer (Signal) by taking into consideration the Diploma in Electronics/ Radio/ Communication Engineering altogether with 10 years technical experience in the appropriate field as equivalent to Degree in Engineering as valid and
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3 OA 972/2017 & OA 973/2017 hold the rejection of applicant's candidature as illegal, arbitrary and bad in law.
d) To set aside and quash the Impugned RBE No. 56/2016 dated 27.05.2016 issued by Director Estt., (N)-II, Railway Board.
e) Any other order or orders as the Hon'ble Tribunal deems fit and proper."
3. The applicant in OA/350/0973/2017 has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"a) To set aside and quash the Impugned Speaking Order No. RRB/KOL/SEE/25/Pt. I dated 15.05.2017 issued by Secretary, Railway Recruitment Board, Kolkata.
b) To set aside and quash the Impugned Show Cause Notice being No. RRB/KOL/SEE/25/Pt. I dated 17.08.2016 issued by Secretary, for Chairman, Railway Recruitment Board, Kolkata.
c) To set aside and quash the Impugned RBE No. 56/2016 dated 27.05.2016 issued by Director Estt., (N)-II, Railway Board.
d) To direct the respondents to consider the case of the applicant for appointment to the post of Sr. Section Engineer (Electrical) by taking into consideration the Diploma in Electrical Engineering together with 10 years technical experience in the appropriate field as equivalent to Degree in Engineering as valid and hold the rejection of applicant's candidature as illegal, arbitrary and bad in law.
e) Any other order or orders as the Hon'ble Tribunal deems fit and proper."
4. For the sake of brevity, the facts of OA/350/0972/2017 (Debjit Sarkar) is being delineated and discussed hereunder :
4.1 Learned Counsel for the applicant submits that the applicant had applied for the post of SSE in the Railways against Employment Notice no. 02/2014. His candidature was rejected on the ground that he lacked the essential qualification of an Engineering Degree.
4.2 Learned Counsel submits that the applicant is an Ex-Air Force Official. He obtained a Diploma from the Indian Air Force in Electronics/
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4 OA 972/2017 & OA 973/2017 Radio/Communication Engineering and had served in the Air Force for 20 years. As per the letter of the then Ministry of Culture and Education dated 26.05.1977, a Diploma holder with 10 years of experience will be considered to have equivalent of an Engineering Degree. Since he satisfies the two conditions of holding a Diploma and having more than 10 years of experience, he is eligible to be considered at par with an Engineering Degree holder. This fact has been specifically mentioned by the Air Force authorities in their certificate dated August, 2015 issued to the applicant.
4.3 Learned Counsel for the applicant further submits that this issue has been adjudicated in several cases by the Hon'ble High Court as well as the Principal Bench of Central Administrative Tribunal. Learned Counsel submits that the respondents' reliance on the judgment dated 15.12.2015 of the CAT Bench at Chandigarh is not tenable in view of the latter judgment of Principal Bench of CAT dated 27.10.2016 in OA no. 1348/2015 vide which the Tribunal has upheld the validity of the letter of 26.05.1977 issued by the Ministry of Education.
5. Per contra, Learned Counsel for the respondents submits that on a specific information from the Ministry of HRD (successor of the erstwhile Ministry of Education), the letter purportedly issued by the Ministry of Education dated 26.05.1977 has been declared as fictitious by the Railway Board. Since the applicant has applied for the post of SSE on the plea that he possesses an equivalent Engineering Degree based on the aforesaid order dated 26.05.1977 issued by the Ministry of Education, his claim of possessing an equivalent of Engineering Degree has been rejected.
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5 OA 972/2017 & OA 973/2017 Learned Counsel cites the circular no. RBE 56/2016 issued by the Railway Board and judgment of the Coordinate Bench of CAT at Chandigarh in OA no. 343/PB/2013 on 15.12.2015. Learned Counsel points out that in the judgment of the Chandigarh Bench it is stated in detail that the Ministry of HRD itself, after thorough search of its own records as well as the records of the Ministry of Urban Affairs which is responsible for publication of Gazette of India, has come to the conclusion that the letter of 26.05.1977, in all probability is a fictitious document.
6. Heard both sides at length. Perused materials on record.
6.1 The order of Coordinate Bench of CAT at Chandigarh in OA no. 343/PB/2013 is quoted below :-
"24. The observations made by the apex court of the country leaves us with no other option except to hold that the applicants cannot be granted benefit sought for by them based on notification of 1977, which has been now termed as fictitious by the relevant authority and or judgments which are based upon the aforesaid fictitious notification. In view thereof, this Original Application turns out to be devoid of any merit and is dismissed. Needless to mention that the interim order dated 20.03.2013 granted in the terms that 'Promotions, if any, come to be made in the meantime, shall be subject to the outcome of the OA' stands vacated.
25. The parties are left to bear their costs.
26. A copy of this decision be forwarded by the Registry to the Secretary, Ministry of Human Resource Development, Government of India, New Delhi, so that they may issue a specific notification on the issue to all concerned clarifying the position so that unscrupulous elements are not in a position to befool the innocent citizens about validity of the qualification as equivalent to degree and that the ineligibles may not be able to get benefit of this kind of qualification by treatment of same as full-fledged qualification/ degree and if possible by giving a note on the web site itself so that the public may become aware about the actual status of the qualification in question."
In its order, the Coordinate Bench at Chandigarh extensively discussed the issue of the High Courts having upheld the validity of the letter dated 26.05.1977. While arriving at a decision contrary to the judgments of the High Courts, the Tribunal noted that any order obtained by fraud from any administrative or judicial authority is ab initio illegal.
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6 OA 972/2017 & OA 973/2017 On the other hand, Principal Bench of CAT in OA no. 1348/2015 has held that -
"9. For the reasons mentioned herein above and the issue having been settled by two different High Court judgments as also by a Co-ordinate Bench of this Tribunal, this OA is allowed. The respondents are directed to consider the applicants for their promotion to the post of EE (Civil and Electrical) considering their Diploma in Engineering with ten years experience in the field (Civil and Engineering) as equivalent to degree in Engineering. The consideration shall be accorded against the quota meant for the AE under the Recruitment Rules. Such consideration shall be against the available vacancies. The applicants along with all eligible candidates in this category shall be accorded consideration in accordance with law within three months from the date of receipt of copy of this order."
Subsequently, the Principal Bench in its order dated 01.03.2019 in CP no. 708/2017 in OA no. 1164/2017 has observed as follows :-
"9. It is brought to our notice that against the order in OA no. 1348/2015 which constituted the basis for allowing OA no. 1164/2017, a writ petition filed by the respondents, is pending adjudication in the Hon'ble Delhi High Court. We make it clear that if any view, contrary to the one that we have taken in this contempt is expressed by the High Court, it shall be open to the applicant to file an application to reopen this contempt case. There shall be no order as to costs."
6.2 Both orders of the Principal Bench referred to above have taken into account the previous rulings of Hon'ble High Courts of Delhi and of Punjab and Haryana in the matter. However, judgment of the Principal Bench in OA no. 1348/2015 delivered on 27.10.2016 has no reference of the judgment of the Chandigarh Bench of CAT in OA no. 343/PB/2013 delivered on 15.12.2015. The ratio regarding the validity of the letter dated 26.05.1977 laid down in the two judgments of CAT, Chandigarh Bench and of Principal Bench of CAT are contrary to each other. The issue before us is the same as the one adjudicated in OA no. 343/PB/2013 by the Chandigarh Bench at Chandigarh and in OA no. 1348/2015 by the Principal Bench. We are bound by the decision of the Co- ordinate Benches. However, as noted above, the two judgments are contrary to each other in their conclusion regarding the validity of letter dated 26.05.1977. In the circumstances, we can do no better than to turn to the
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7 OA 972/2017 & OA 973/2017 judgment of the Hon'ble Bombay High Court in Writ Petition no. 14242 of 2018 in Mrs. Gaur Pratibha (Ms. Thakur Pratima Jagatsingh) & Ors. vs. The State of Maharashtra through the Secretary and Ors. uploaded on 09.04.2019 which has extensively dealt with the subject of conflicting judgments by Co-ordinate Bench of equal strength of both High Courts and Supreme Court.
Para 90 and 91 of Mrs. Gaur Pratibha (supra) read as under :-
"90. In Sundeep Kumar Bafna v. State of Maharashtra AIR, a two-Judge Bench of the Supreme Court faced the conflicting judgments of two "three-Judge Bench"
decisions on the question of "custody and arrest." In that context, Sundeep Kumar Bafna has observed that the view of the coordinate Bench of earlier vintage must prevail, and this discipline demands and constrains the courts to adhere to the former decision, rather than the later. It pays to quote the Supreme Court's observations:
It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co- equal or Larger Bench ; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.
91. So now, the judicial dictum is unmistakable: A decision or judgment can be per incuriam if it conflicts with the ratio of a previously pronounced judgment of a co- equal or a larger Bench."
In our view, the above quoted part of the Hon'ble Apex Court in Sundeep Kumar Bafna squarely applies to the conundrum faced by this Bench in the present OA. The Co-ordinate Bench at Chandigarh had on the basis of submissions made by the Ministry of HRD, held the order dated
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8 OA 972/2017 & OA 973/2017 26.05.1977 allegedly issued by the then Ministry of Education as fictitious by its order dated 15.12.2015. On the other hand, Principal Bench relying on earlier decision of High Courts in the matter had upheld the validity of the same order vide its judgment dated 27.10.2016. It would appear that the order of the Co-ordinate Bench at Chandigarh was not brought to the notice of the Principal Bench. Be that as it may, following the ratio laid down by the Hon'ble Supreme Court as quoted in the judgment of the Hon'ble Bombay High Court in Mrs. Gaur Pratibha (supra), we consider it appropriate to follow the orders of the Co-ordinate Bench at Chandigarh which was delivered on 15.12.2015, i.e., before the Principal Bench of CAT delivered its judgment in OA no. 1348/2015 on 27.10.2016.
6.3 The Co-ordinate Bench at Chandigarh in its order in OA no. 343/PB/2013 had directed that its order declaring the order of 26.05.1977 as fictitious be conveyed to the Ministry of HRD. On receipt of a copy of the order of the Tribunal, the Ministry published a notification in the Gazette of India to the following effect on 23.03.2016 -
" MINISTRY OF HUMAN RESOURCE DEVELOPMENT (Department of Higher Education ) NOTIFICATION New Delhi, the 23rdMarch, 2016 F. No. 11-11/2015 TS II/TC.- The Ministry of Human Resource Development (Department of Higher Education) hereby clarify that matter containing in File No. 18-19/75 T-2, dated the 26thMay, 1977, under the subject "Recognition of Technical and Professional Qualifications", purportedly issued by the erstwhile Ministry of Education and Social Welfare (Department of Education) has been declared fictitious by the Hon'ble Central Administrative Tribunal Chandigarh Bench at Chandigarh vide its judgment in OA no. 343-PB-2013 which was pronounced on 15thDecember, 2015."
Ministry of Railways, Railway Board accordingly issued a circular being RBE no. 56/2016 advising all its subordinate officers not to treat a Diploma in Engineering with ten years of experience as equivalent of an Engineering
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9 OA 972/2017 & OA 973/2017 Degree. Following the said circular, the respondents have rejected the claim of the applicants.
6.4 In the light of the foregoing discussion, we do not find any legal infirmity in the respondents' action in rejecting the claim of the applicants that they have an equivalent of an Engineering Degree on the ground that their Diploma in Engineering and their more than ten year of experience are not equivalent to an Engineering Degree which is an essential requirement for being considered for appointment to the post of SSE (S&T).
7. OAs are dismissed being devoid of merit. No costs. (Suchitto Kumar Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member sl
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10 OA 972/2017 & OA 973/2017
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