1. We have heard Shri Ram Kripal Tripathi appearing in person. Shri Rajiv Gupta appears for the Registrar General, High Court. Shri Santosh Kumar Pandey appears for Shri Surya Prakash Singh-respondent No.3.
2. The petitioner- appellant is aggrieved by the judgment of learned Single Judge by which he dismissed the writ petition challenging the selection made by the Court, for the post of Telephone Operator, and in which Shri Surya Prakash Singh-respondent No.3 was selected and appointed.
3. Learned Single Judge has dismissed the Writ Petition No.48549 of 2008 on the ground firstly that the petitioner's contention that Shri Surya Prakash Singh was not qualified for appointment was based on his personal knowledge, and secondly the selection was made by Selection Committee of two Hon'ble Judges of this Court, who had found that Shri Surya Prakash Singh-respondent No.3 was duly qualified and eligible, and thus keeping in view the report of the committee on the basis of which the appointment was made, no interference was called for. The petitioner-appellant has filed amendment application to add certain facts and grounds on 7.12.2009 including the documents namely the application made by Shri Surya Prakash Singh-respondent No.3 disclosing his qualifications and experience, trade certificate issued by Indian Navy on 30th July, 2007, and the certificate dated 31st July, 2007 of Shri Surya Prakash Singh issued by Shri J.S. Walia, Commander, Officer-in-Charge, Release Centre. He has also annexed the certificate issued to him for resettlement on being released from service by the Air Headquarter, Vayu Banwan, New Delhi on 25th September, 2006 and the certificate of Indian Air Force dated 15.4.2009 for having successfully completed the prescribed training and to have passed requisite examination on CTI, Bangalore for quoting his post with Supervisor (Telephone Exchange).
4. The petitioner has also filed supplementary affidavit with which he has annexed the replies received from Indian Navy with regard to the qualifications of Shri Surya Prakash Singh-respondent NO.3 By letter dated 7.4.2010 the Commander at Arms CDR-AT-Arms, Public Information Officer (Navy) informed him that Shri Surya Prakash Singh has expressed his unwillingness to provide information and since the information sought by him is a third party information, it is exempt from disclosure under Section 11 of the Right to Information Act, 2005. In appeal against the order the appellate authority also refused to disclose the information as Shri Surya Prakash Singh Ex-POELAR had expressed unwillingness to provide the information. The petitioner was, however, informed by PIU, Navy that the word Ex-POELAR stands for (retired) "Petty Officer Electrician Air Radio". The petitioner-appellant, thereafter, took up the matter to Central Information Commissioner. It is submitted that by the date of decision: 30.8.2010 the Central Information Commissioner also did not give the information and evaded the issue by stating as follows:-
"We have heard the parties. During the hearing, Cdr. Gupta submits that Surya Prakash Singh, retired as POELAR. He elaborates that PO stands for Petty Officer; EL for Electrician and AR for Air Radio. He also submits that this has been duly conveyed to the appellant vide their letter dated 30.6.2010.
The appellant, however, is not satisfied with this. He wishes the CPIO to elaborate this abbreviation alphabet-wise. The request of the appellant is fair and reasonable. The CPIO is hereby directed to give details of the abbreviation POELAR to the appellant in 02 weeks time.
Sd/-
(M.L. Sharma)
Central Information Commissioner"
5. We summoned and perused the records of selection.
6. Hon'ble the Acting Chief Justice by his order dated 18.12.2004 constituted a Committee to fill up 4 vacant posts of Telephone Operators in the establishment of the High Court. The Registry advertised vacancies inviting applications in which two posts were permanent for General Category; one for OBC and one for SC category; Rule 9 (1) (a) of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 provided for qualifications essential for the post of Telephone Operator and Rule 10 A provides for the method of selection for the post of Telephone Operators and Telex Operators. Rule 9 and 10 providing for qualifications and method of selection are quoted as below:-
"9. Qualifications- Academic qualifications for direct recruitment to the various Class III posts in the establishment shall be as follows:-
(i) Routine Grade Clerk
Must have passed the Intermediate Examination of the Board of High School and Intermediate Education, U.P. or an examination declared by the Government as equivalent thereto.
(i) (a) Telephone Operators and Telex Operators
Must have passed the Intermediate Examination of the Board of High School and Intermediate Education, U.P. or an examination declared by the Governor as equivalent thereto:
Provided that the minimum academic qualifications in respect of the candidates recruited before the enforcement of these rules shall be High School Certificate.
(ii) Lower Division Assistants
(iii) Upper Division Assistants
Must possess a Bachelor's degree of a University established by law in India or a qualification recognised as equivalent thereto.
(iv)Personal Assistants
(v) Librarian
Degree in law and diploma in Library Science from a recognised University;
Provided that in addition to the above qualifications, candidates for the following categories of posts must also possess the qualification mentioned below:
(a) Routine Grade Clerks
Must possess good knowledge of Hindi and English Type-writing:
Provided that nothing in this rule shall be construed as affecting or invalidating appointments made or orders issued before the commencement and orders shall continue in force and shall be deemed to have been made or issued under the appropriate provisions of this rule.
(b) Personal Assistants
Must possess good knowledge of Hindi or English shorthand and typewriting with minimum speed of 40 words in English and 30 words in Hindi typewriting per minute and 100 words in English and 80 words in Hindi shorthand dictation per minute.
(c) Telephone Operators
Must possess sufficient experience of working as a Telephone Operator in some Government or Semi-Government Undertaking.
(d) Telex Operators
Diploma or certificate in Telex Operators from some recognised Institute of training. Must possess sufficient experience of working as Telex Operator in some Government or Semi-Government Undertaking.
10. Method of selection for the posts of Routine Grade Clerks- (1) The appointing Authority shall ascertain the probable number of vacancies likely to occur in the post of Routine grade Clerks during the course of the year of recruitment and determine the number of vacancies, if any, to be reserved for candidates belonging to the Schedule Castes and others under Rule 23.
(2) The procedure and syllabus relating to the competitive examination shall be such as may be prescribed by the Appointing Authority from time to time.
(3) The candidates who qualify for interview in the written examination, according to the standard fixed by the Chief Justice, will be called for interview before the Selection Committee appointed by the Chief Justice.
(4) The total marks obtained by the candidates in the written examination and interview will determine their position and the merit list shall be prepared accordingly. If two or more candidates secure equal marks, the candidate securing higher marks in the written examination will be placed above. The select list shall hold good for three years or till the next selection is held whichever is earlier.
(5) [***]"
7. A Committee consisting of two Hon'ble Judges of the Court supervised the selections. Forty six candidates applied in pursuance to the advertisement, which provided for the qualifications essential for the post as follows:-
"1. Must have passed the Intermediate Examination of the Board of High School and Intermediate Education U.P. or an examination declared by the Governor as equivalent thereto vide Rule 9 (1) (a) of the 1976 Rules.
2. Must possess knowledge of data entry, word processing and Computer Operator, Proviso to Rule 9 of 1976 Rules inserted vide notification dated 26.8.2002.
3. Must possess a certificate or training imparted by the Post and Telegraph department.
4. Must possess sufficient experience of working as a Telephone Operator in some Government or Semi Government Undertaking vide clause (C) of proviso to Rule 9 of 1976 Rules."
8. The Committee was informed by the Joint Registrar (Services) authorised to conduct the written test that none of the candidates possessed the certificate issued by the Telegraph Department. The Committee relaxed the requirement of the certificate of the Telegraph Department for all the candidates. The Joint Registrar (Services) submitted a report on 4.8.2008. In this report it was submitted that 38 persons out of 46 were subjected to computer test with the help of Incharge Computer Centre, High Court with 25 marks. The candidates securing atleast 9 or more marks were treated successful. The computer test was essential in view of Rule 9 of the Rules amended by notification dated 26.8.2002. Since the post of Telephone Operator is technical post, to find out whether the candidates are suitable, Senior S.D.O. nominated by General Manager, B.S.N.L. carried out the tests of practical and technical knowledge consisting of 50 marks.
9. The candidates were, thereafter, subjected to test to speak English, etiquette in manners, sense of responsibility and their aptitude for work with total 25 marks. Shri Fahad Ahmad with Roll No.30 scored 77 marks. The petitioner-appellant Shri Ram Kripal Tripathi was placed at Sl.No.8 with 56 marks in General Category. A separate list were drawn for OBC and SC category candidates. Shri Surya Prakash Singh was placed at Sl.No.1 in the category of OBC candidates with 61 marks, Sunil Kumar at Sl.No.2 with 59 marks; Shri Satish Kumar at Sl.No.3 with 57 marks; Shri Gyan Singh at Sl.No.4 has secured 54 marks.
10. The Committee found that since Shri Surya Prakash Singh-respondent No.3 in OBC category fulfills all the requirement, he has to be recommended against the first post of OBC category but at the same time in view of Act 4 of 1994 since Shri Surya Prakash Singh has scored more marks than general category candidates, he has to be placed in general category and thus one post available for OBC category is to be given to Shri Sunil Kumar. The Committee thus recommended Shri Dinesh Chandra Tripathi at Sl.No.3 in General Category with 63 marks, and Shri Surya Prakash Singh in OBC category with 61 marks as the first and second candidates in general category. Shri Sunil Kumar with 59 marks were selected in OBC category and Shri Hari Krishna with 47 marks in SC category. The appointment orders were issued accordingly. The selected candidates including Shri Surya Prakash Singh are working since the year 2008, as Telephone Operators in the High Court.
11. The petitioner appellant Shri Ram Kripal Tripathi in the general category has challenged the selection of Shri Surya Prakash Singh-respondent No.3, the OBC candidates placed in general category candidates replacing one general category candidate on the basis of his marks on the ground that he does not possess the requisite essential qualification namely experience as 'Telephone Operator in some government or semi government undertaking'. The petitioner also submits that Shri Surya Prakash Singh does not have experience as Telephone Operator. The work in Indian Navy as Radio Operator is an entirely different area of work. In his application in Column-9 Shri Surya Prakash Singh had disclosed that he has experience "15 years as Radio Operator in Indian Navy". The trade certificate issued to him disclosed that he had passed the following course/ examination and has following trade experience:-
Course Names
Qualified on
Modified Airman Ship
06/06/1993
Electrical Mechanic Aircraft Radio
21/08/1993
Qualified to Maintain Ilyushin-38 Aircraft
23/06/1994
Electrical Mechanic Air Radio 1
13/02/1995
Qualified to Sigh Aircraft Maintenance Work
05/06/1995
Prov Leading Electrical Mechanic Air Radio
30/06/1997
Leading Electrical Mechanic Air Radio
27/06/1998
Qualified to Maintain Kamov 25 Helicopter
04/09/2000
Petty Officer Electrical Aircraft Radio
18/04/2002
12. The petitioner appellant further submits that Shri Surya Prakash Sigh-respondent No.3 was not even a Radio Operator. He has infact concealed his experience. He was only a Radio mechanic. The information received by him under the Right to Information Act shows that Shri Surya Prakashj Singh retired as 'POELAR', which stands for 'Petty Officer Electrician Air Radio'. According to him the copy of the Navy Instructions N.I. 2/96 by Government of India enclosed with the information given by CDR at Army P.I.O. to him dated 28th September, 2010 clearly disclosed that petty officer at Item No.38 'Electrician' (Air Radio) stands for POELAR. The designation of Shri Surya Prakash Singh thus disclosed that he was mechanic in Air Radio and did not have qualification even for operating Air Radio.
13. In para 19 of the rejoinder affidavit filed by the petitioner appellant to the counter affidavit of High Court it is stated that the petitioner had submitted an application under R.T.I. Act to CPIO Allahabad High Court on 1st October, 2008. He was required to submit the requisite fees. The petitioner deposited Rs.2000/- by bank draft in favour of the Registrar General, High Court, Allahabad dated 7.10.2008 but no information has been given to him.
14. In the counter affidavit filed by the High Court it is stated that none of the candidates had training imparted by the Post and Telegraph Department and thus the condition was relaxed. The Trade Proficiency Certificate in Telephonist/ Radio Telephone Operator of Indian Air Force and trade certificate by Indian Navy submitted by respondent No.3 along with his application was found to be sufficient qualification and that the suitability of the candidates of comparative assessment was made on which recommendation was made by the Committee to Hon'ble the Chief Justice, and which was accepted by Hon'ble the Chief Justice on 25.8.2008.
15. In the counter affidavit of Shri Surya Prakash Singh-respondent No.3 it is stated by him in para 6 that he possesses better qualification than the required qualification prescribed in the advertisement. He joined Indian Navy as a Metric Entry Recruit on 14.7.1992 and thereafter completed technical course and became Electrical Mechanic Aircraft Radio Under Trainee (in short EMARUT) on 21.8.1993. He has thereafter stated as follows:-
"It is further stated that the deponent was promoted on the post of Electrical Mechanical Aircraft Radio-I (Equal to Lance Nayak) on 13.2.1995. Thereafter, on 30.6.1997 the deponent was promoted to the post of Provisional Leading Electrical Mechanical Aircraft Radio and the services of the deponent was confirmed in the rank of leading Electrical Mechanical Aircraft Radio on 27.6.1998. The deponent was thereafter promoted to the post of Petty Officer, Electrical Aircraft Radio on 1.2.2007.
It is further stated that the deponent has been issued several certificates by the Indian Navy including certificate dated 30.7.2007 issued by the Commander A Joseph, Drafting Commander for Commodore Bureau of Sailors, certificate dated 5.7.2007 issued by Sri S. Sreedeep, Lieutenant Commander Station Air Electrical Officer which will show that the deponent is possessing higher qualification than as desired in the advertisement issued by the Hon'ble High Court for the post in question. The selection of the deponent against the post in question is perfectly legal and valid and is strictly in accordance with prevalent rules and also in accordance with the eligibility criteria as fixed by the Hon'ble Selection Committee of this Hon'ble Court. A copy of certificate dated 30.7.2007 and 5.7.2002007 are being filed herewith and marked as Annexure No.CA-1 & CA-2 to this affidavit."
16. We have considered the respective submissions made by the parties and perused the record.
17. The essential qualifications prescribed in Rule 9 for the post of 'Telephone Operator' is Intermediate Examination of Board of High School and Intermediate as educational qualifications and experience of working as Telephone Operator in some government or semi government undertaking. Both the educational and experience qualifications are essential qualifications for the post and were so advertised and were accepted by the Committee to be the essential qualifications.
18. The Committee had relaxed the certificate of training imparted by the Post and Telegraph Department. It did not relax the essential qualifications provided by statutory rules, and thus it was essential for every candidate, who had applied to the post to establish by requisite certificates that they had experience of working as Telephone Operator in some government or semi government undertaking.
19. It was reported to the Committee that Shri Surya Prakash Singh has certificate in Electrical Mechanic Area Radio and had 15 years experience as Radio Operator in Indian Navy. It appears that the Committee did not appreciate the difference between Telephone Operator and Radio Operator, and found Shri Surya Prakash Singh to be eligible on the basis of his experience as Radio Operator, which has now been established to be experience as Radio Mechanic in Indian Navy. The certificate annexed by Shri Surya Prakash Singh clearly demonstrate that he did not have experience of working as Telephone Operator. He claimed to have experience as Radio Operator with his certificates. His designation in Indian Navy and the certificates, however, clearly demonstrates that he had experience of working as Radio Mechanic, and not Radio Operator.
20. We find substance in the contention of the petitioner appellant appearing in person, that there is a considerable difference in the technology of radio and telephone. Whereas telephone lines operates on wire, the radio operations work on radio frequency. Both the technology are different in nature.
21. The Committee did not recommend and that Hon'ble the Chief Justice did not exempt the essential qualifications and experience of working as Telephone Operator. The High Court as such clearly fell into error in treating Shri Surya Prakash Singh-respondent No.3 as eligible with essential qualifications and experience and in selecting him as Telephone Operator. Learned Single Judge also fell in error in considering the points raised by the petitioner-appellant regarding the difference in the experience between telephone operator and radio mechanic.
22. We further find that though Shri Surya Prakash Singh had scored better overall marks than the petitioner-appellant, the petitioner-appellant with 9 marks in computer test; 33 marks in technical test and 14 marks on personality test, as against 15 marks in computer test given to Shri Surya Prakash Singh; 13 in technical test and 16 in personality test, possessed requisite educational qualifications and experience for the job. The other general category candidate, who had participated also did not have experience as Telephone Operator, except Shri Surya Bahadur Singh, who has not challenged the selection. The Committee, therefore, could not have placed Shri Surya Prakahs Singh belonging to OBC category as second person selected in General Category. The petitioner-appellant was clearly discriminated in the selections violating his rights of equality and non-arbitrariness guaranteed under Art.14 and 16 of the Constitution of India.
23. For the aforesaid reasons, we find that the selection of Shir Surya Prakash Singh-respondent No.3 was not valid, as he did not possess requisite experience provided in Rule 9 of working as Telephone Operator in government or semi government organisation as essential qualification for the post.
24. The special appeal is allowed. The judgment of learned Single Judge dated 16.9.2008 and consequently the selection and appointment of Shri Surya Prakash Singh-respondent No.3, as Telephone Operator and his appointment is set aside. The Registrar General of the High Court is directed to prepare a fresh list of selected candidates in accordance with marks allotted to eligible candidates for appointment on the second post of Telephone Operator in general category in accordance with merit position. The order will be complied within six weeks.