JUDGMENT
A.S. Sanghvi, Member (J)
1. All these O.As. raise common question of law and facts and hence, the same arc heard together and being disposed of by this common order.
2. The applicants are diploma holders and their grievance is against the decision of the Railway Recruitment Board not to consider them eligible for recruitment to the post of Diesel/Electrical Assistant. According to their case pursuant to the Employment Notice No. 2/97-98 in the Employment News dated 21.7.97 for recruitment to the post of Diesel Assistant and Electrical Assistant, they had submitted their applications and on being called for the written test they had appeared in the written test. They were declared successful in the written test and hence, they were called for the psychological test. They were declared successful in both the tests and were called for the oral interview. However, the respondent No. 2 had refused to interview them on the ground that they were diploma holders and not ITI pass. According to them the respondent No. 2 did not take their interview on the ground that they were not eligible to compete for the post in question as they were possessing qualification better than ITI. They have contended that since they possess qualification of diploma, they are better qualified than ITI and hence, they could not have been refused permission to compete with others for the post in question.
3. During the pendency of this O.A., the applicants have amended the O.A. and incorporated the conclusion that the advertisement did not exclude the diploma holders and that the nature of the duties to be performed by the Diesel/Electrical Assistant required highly skilled personnel and they were qualified for the said one. It is also contended by the applicants that in the past also candidates with diploma qualifications were recruited by the respondents. The RRB, Mumbai in its Employment Notice for the post of Diesel/Electrical Assistant had included the diploma holders as qualified candidates for the post in question. Similarly, the RRB Patna, RRB, Banglore, etc., have also treated the diploma holders eligible for the said post. Hence, the decision of the respondents to exclude the diploma holders in the State of Gujarat for consideration for the appointment to the post of Diesel/Electrical Assistant is discriminatory and contravening the provisions of Articles 14 & 16 of the Constitution of India. They have also challenged the deletion of Clause II (ii) in the letter dated 20.8.92 of the Railway Board, thereby excluding the diploma holders contending that the said decision is unjust, arbitrary, without application of mind and required to be declared as ultra virus. According to them, there is no justification for excluding the diploma holders for consideration to the post of the Diesel/Electrical Assistant.
4. The respondents have resisted the O.As. and filed identical replies. They have admitted that they had issued notification No. 2/97-98 inviting applications from candidates for the post of Diesel/Electrical Assistant in the pay scale of Rs. 950-1500 on Baroda, Rajkot and Bhavnagar division. According to them, the minimum educational qualification prescribed was matriculation pass or its equivalent 10 standard pass under 10 + 2 scheme and ITI qualification in any of the following trades:
(i) Fitter
(ii) Turner
(iii) Machinist etc.
It was also provided that apprenticeship passed under Apprenticeship Act, 1961 will be an alternative qualification. They have contended that the applicant did not possess the required minimum educational qualification prescribed for the post of Apprenticeship Diesel/Electric Assistant and therefore, they were not eligible to appear in the personal interview. They do not possess the qualification of ITI or apprenticeship pass under the Apprenticeship Act, 1961 or do not possess the certificates under National Council of Vocational Training (NCVT) towards Craftsman Training Scheme which have been prescribed as an alternative qualification to ITI. The qualification of diploma/degree in Engineering is not treated as an alternative qualification to ITI/Apprentice passed/ NCVT. It is also contended that the Railway Board has issued specific order in the year 1992 that the diploma holders are not eligible for the post of Diesel/Electrical Assistant and the General Manager, Western Railway, Churchgate has also specifically advised the respondent No. 2 vide letter dated 22.9.94 that the qualification for the post of Apprentice/Diesel Assistant should be considered as per the Railways Board’s letter dated 20.8.92. The applicants were therefore, not allowed to appear in the interview for the post of Diesel/Electric Assistant as they were not possessing the required qualification. It is also further contended by the respondents that for the information of all candidates who did not possess the required educational qualification a notice was displayed at the entrance of the office of RRB, Ahmedabad mentioning that candidates not possessing the SSC and ITI, apprenticeship pass under the Apprenticeship Act, 1961 or NCVT are not eligible and the candidates having diploma in Engineering without ITI/Act Apprenticeship/NCVT are not eligible for the post in question. The respondents have denied that the diploma candidates have better qualification and as such the applicants were required to be permitted to appear in the interview. According to them the Railway Board had also clarified vide DO letter No. 99/E (RRB) 22/36 dated 10.8.99 that the diploma is not an alternative qualification to ITI for recruitment of Assistant Drivers. Hence, the action of rejecting the applications of the applicants is correct and proper.
5. In their further reply to the amended O.A. they have contended that O.A. 713/ 99 seeking similar relief has already been dismissed by this Tribunal. With regard to the advertisement issued by RRB, Mumbai, they have stated that the RRB, Mumbai had clarified that through oversight the then Chairman, had prescribed the qualification of ITI to the above category. As regards the advertisement published by RRB, Bhopal on 29.6.2002 they have submitted that the said advertisement is not relevant as it has been issued after the issue of Railway Board’s fetter dated 3.8.2001 revising the qualification for the post of Diesel Assistant/Electric Assistant prescribing diploma as a qualification in lieu of ITI. As regards the advertisement published by RRB, Patna they have conceded that that was not as per the orders issued by the Railway Board. As regards the advertisement published by RRB, Bangalore they have submitted that it has only mentioned higher qualification in respective discipline and diploma is not considered as a higher qualification as per Railway Board’s D.O. letted dated 10.8.99. They have denied the allegation that the action of RRB, Ahmedabad in excluding the diploma holders from competing for the post of Diesel/Electrical Assistant is discriminatory or illegal and contravening the provisions of Articles 14 & 16 of the Constitution. They have prayed that both the O.As. be dismissed with costs.
6. We have heard the learned Counsel for both the parties and have duly considered the rival contentions.
7. Before we proceed further to examine the rival contentions, we may point out that the impugned notification i.e. Employment Notice No. 2/97-98 was the subject matter of challenge before the Tribunal in O.A. 713/99 as well as O.A. 356/2001. Both the O.As. have come to be dismissed by this Tribunal holding that the applicants therein were diploma holders but were not holding the qualification/experience in any of the trades mentioned in the employment notice and as such were not eligible for the advertised post. The O.A. 713/99 was filed by one Mr. J.B. Singh v. Union of India and Ors. raising the same contentions that diploma holders were eligible to appear in the notified selection. While dismissing the O.A. by the decision dated 4.3.03, the Tribunal held that the applicants were not holding the qualification of ITI etc. prescribed in the notification and as such were not eligible to compete for the post in question. Subsequently another O.A. bearing No. O.A. 356/01 was also filed by one Mr. N.A. Jadav and Others praying for setting aside and quashing the order dated 20.8.92 by which the applicants therein were held not to be eligible for the post of Diesel Assistant/ apprenticeship etc. The applicants therein also were diploma holders and were challenging the same notification No. 2/97-98 inviting applications for the category of Apprentice/Diesel and Electrical Assistant. The O.A. had come to be dismissed by the Tribunal vide order dated 22.1.2003 holding that the applicants therein were not eligible for the advertised post. It was also observed by the Tribunal that the decision of 20.8.92 not to give preference to diploma holders was not challenged in the O.A. In view of the decision of O.A. 356/01, the applicants herein have amended the O.A. and challenged the decision dated 20.8.92 of the Railway Board not to consider the diploma holders eligible to be qualified to be appointed as Diesel/Electrical Assistant.
8. It is an undisputed position that as per the Employment Notice No. 2-97/98 issued by the RRB, Ahmedabad the diploma holders are not made eligible to compete for the post of Diesel/Electrical Assistant. The above mentioned two decisions of the Tribunal also endorse the view that they are not eligible for the same post. Mr. Pathak, learned Counsel for the applicants has however, submitted that excluding the diploma holders from being eligible for the said post violates the principles of Articles 14 & 16 of the Constitution of India as other RRBs vizly. RRB, Mumbai, RRB, Patna, RRB, Banglore, RRB, Bhopal have considered the diploma holders as eligible for the post of Diesel/Electrical Assistant. It is also submitted by Mr. Pathak that diploma is a better qualification than that of ITI or having experienced in other trades and as such the action of the respondents in not considering the diploma equivalent or better qualification to that of ITI was erroneous and deserves to be quashed and set aside. According to him, the RRB in other States had recognized the diploma holders as eligible to compete with others for the post in question while the RRB, Ahmedabad has refused to recognize and as such, the action of the respondents can easily be considered to be a hostile discrimination. He has also submitted that a candidate possessing diploma in any of the fields can apply to Mumbai, Bhopal, Patna, etc., and get even selected and appointed there, while the same candidate is considered ineligible by the respondents here. This according to him is a clear case of hostile discrimination and therefore, the selection deserves to be quashed and set aside. He has also commented about the conduct of the respondents in allowing the applicants to appear in the written test and psychological lest and (sic) them permission to take the oral interview. Referring to the Railway Board’s letter dated 20.8.92 Mr. Pathak has submitted that the Board has failed in considering that the diploma holders are better equipped than the ITI passed candidates. According to him diploma holders are even given posting as Teachers and considered to be better qualified than ITI passed candidates. There is therefore, no justification in excluding the diploma holders from competing with others for the post of Diesel/ Electrical Assistant and holding them ineligible for the said post.
9. On the other hand, Mr. Shevde, learned Counsel for the respondents while admitting that RRB, Mumbai, RRB, Bhopal and RRB, Patna, RRB, Bangalore, etc. had notified diploma holders eligible for the post of Diesel/Electrical Assistant, submitted that this was done by an error by them and on realizing that the Railway Board had not prescribed diploma as a qualification for eligibility criteria for the post in question they had subsequently reversed the decision also. He has pointed out that RRB, Mumbai had vide their letter dated 11.1.2001 in reply to the letter dated 5.1.2001 of the respondent No. 2 clarified that through over sight the then Chairman, prescribed the diploma qualification in addition to ITI for the above category although there was a clear cut letter issued on 20.8.92 by the Railway Board making diploma holders not eligible. He has produced the letter dated 11.1.2001 of Shri Adesh Sharma, Chairman, RRB Mumbai which inter alia states that his predecessor by over sight prescribed the diploma qualification in addition to ITI for the above category although there was a clear cut letter issued on 20.8.92 making diploma holders not eligible for the above category. The letter further goes on saying that the subsequent to the above notification this RRB has issued Notification under Cat No. 16 of Emp. Notice No. 1/2000 where it was clearly indicated that diploma holders were not eligible for the above category. The subsequent notification under Employment Notice No. 2/2000 has also specified that diploma holders were not eligible.
10. Mr. Shevde further submitted that so far RRB, Bhopal’s Notification dated 29.6.2002 is concerned, the same was issued after the Railway Board revised the qualification for the post of Diesel/Electrical Assistant vide letter dated 3.8.2001 prescribing diploma in lieu of ITI. He has also submitted that RRB, Patna had informed the respondent No. 2 that the Railway Board’s letter dated 20.8.92 was not clear to them. He has however admitted that the advertisement published by RRB, Patna was not as per the direction issued by the Railway Board. So far RRB, Banglore, Mr. Shevde has submitted that they have not prescribed diploma as a qualification but have only stated that higher qualification in respective discipline was admissible. According to him the Railway Board vide D.O. letter No. 99/E/RRB/22/36 dated 10.8.99 has clarified that diploma was not considered as higher qualification.
11. It is quite obvious from the above referred contentions of parties that the grievance of the applicants has arisen on account of different Railway Recruitment Boards adopting different eligibility criteria for the post of Diesel/Electrical Assistant. The applicants also seem to be aggrieved by the fact that they consider themselves better qualified than the ITI pass candidates and as such, consider themselves eligible for the post in question. The fact however, remains that as far as back in 1992 more particularly dated 20.8.92 the Railway Board had prescribed minimum educational qualifications for recruitment to the post of Diesel/Electrical Assistant. Prior to 20.8,92 the educational qualification prescribed were as under:
(i) (a) Matriculation pass or its equivalent or Tenth class (or 10th standard) pass under the 10+2 system, plus (b) ITI calculation in any of the specified trades or (ii) Diploma in Electrical or Mechanical Engineering or Electronics (in lieu of ITI) 1.2 Preference will be given to candidates with the aforesaid diploma qualification (as indicated in (ii) above)." Vide this circular dated 20.8.92 the Railway Board observed as under: "Railway Board after reviewing the matter had decided that the stipulation as at Item (ii) and 1.2 of the letter dated 6.6.90 referred to above may be deleted."
12. The effect of the above direction was to delete minimum educational qualification of diploma in Electrical or Mechanical Engineering or Electronics (in lieu of ITI) and also the preference to be given to candidates with the aforesaid diploma qualification… Hence, the Railway Board vide circular dated 20.8.92 omitted the qualification of minimum qualification of diploma in Electrical or Engineering or Electronics and retained the qualification of matriculation or its equivalent of 10th class pass under the 10 + 2 system + ITI qualification in any of the specified trade for recruitment to the post of Diesel/Electrical Assistant. It is a settled position of law now that the circular issued by the Railway Board have the effect of promulgating statutory rules and are binding on all the concerned recruitment boards. If any of the recruitment board does not follow this direction it can be inferred that they have acted in violation of statutory rules. However, violating the statutory rules by one Recruitment Board or another recruitment board cannot give rise to a cause to the candidates in other recruitment boards to agitate the question of hostile discrimination when that particular recruitment board is following the statutory rules. So far as the submission that diploma is a higher qualification is concerned, we find that the same is already answered by Railway Recruitment Board in their letter to Chief Personnel Officer, Western Railway, Mumbai dated 10.8.99. The same is produced by the respondents at Annexure R-6. Referring to the D.O. letter dated 5.8.99 of the Chief Personnel Officer, Mumbai the Executive Director of the Railway Board has stated as under:
“Candidates who do not have ITI qualifications but have diploma in Engineering are being rejected rightly in recruitment for the category of Assistant Drivers. This is in terms of Board’s letter dated 20.8.92 which you have seen already. I have gone through the file and I find that this was a conscious decision. A diploma is not a higher qualification in the same line of training as ITI. ITI training is skill oriented or producing a worker who can work with his own hands, whereas a diploma is not skill oriented but knowledge oriented. It does not produce a skilled worker. Althogh it does impart knowledge which can be used or supervising skilled workers. It is not the same thing. Taking into account the nature of work involved, it was decided in 1992 that diploma holders would not be suitable.”
13. This letter clearly indicates that the authorities had considered the question of diploma being higher qualification or not and have concluded that it is not. It is true that there can be two views on this point but then it is not open to the Tribunal to enter into the examination of the question of diploma being higher qualification or not. It is a policy decision taken by the respondents and it is a settled position of law that the policy decision taken by the respondents arc not open for review by the Tribunal.
14. The Supreme Court has already concluded this point by holding that whether a particular qualification can be prescribed for a particular post is a question to be considered by the authorities concerned but the Court cannot interfere with the same. In the case of P.M. Latha and Anr. v. State of Kerala and Ors. 2003 SCC (L & S) 339=2003(2) SLJ 375 (SC), the question before the Supreme Court was whether the B.Ed. qualification is a higher qualification than TTC (Trained Teacher’s Certificate) and if so, whether the B.Ed. candidates can be held to be eligible to compete for the post. Rejecting the argument that B.Ed. qualification was a higher qualification and the B.Ed. candidates should be held to be eligible to compete for the post the Supreme Court observed as under:
“Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed. qualification, is a matter of recruitment policy. There is sufficient logic and justification in the State prescribing qualification for the post of primary teachers as only TTC and not B.Ed.. Whether B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but the Court cannot consider B.Ed. candidates for the present vacancies advertised as eligible.”
15. Again in the case of Yogesh Kumar and Ors. v. Govt. of NCT, Delhi and Ors., 2003 SCC (L & S) 346=2003(2) SLJ 210 (SC), the Supreme Court laid down as under:
“B.Ed, qualification, although a well-recognized qualification in the field of teaching and education, being not prescribed in the advertisement, only some of the B.Ed. candidates who took a chance to apply for the post cannot be given entry in the field of selection. Teacher’s training imparted to teachers for B.Ed. course equips them for teaching higher classes. A specialized training given to teachers for teaching small children at primary level cannot be compared with training given for awarding B.Ed. degree. Merely because primary teachers can also earn promotion to the post of teachers to teach higher classes and for which B.Ed. is the prescribed qualification, it cannot be held that B.Ed. is a higher qualification than TTC.”
16. Referring to the recruitment made by some institution on the basis of the qualification of B.Ed. in deviation from the recruitment rules the Supreme Court observed as under:
“Recruitment to public services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. Merely because in the past some deviation and departure was made in considering the B.Ed. candidates (and it has been pointed out that, that was so done because of the paucity of TTC pass candidates.) and patent illegality cannot be allowed to continue. The recruitment authorities were well aware that candidates with qualification of TTC and B.Ed. are available yet they chose to restrict entry for appointment only to TTC pass candidates. It is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. It may be that presently more candidate available for recruitment to primary school arc from B.Ed. category and very few from TTC category but whether for the aforesaid reasons B.Ed. qualification also can be prescribed for primary teachers is a question to be considered by the authorities concerned but the Court cannot consider B.Ed. candidates for the present vacancies advertised as eligible.”
17. The above observations of the Supreme Court clearly answer all the arguments of the applicants advanced in these O. As. If other RRBs have prescribed diploma as a qualification for recruitment to the post of Diesel/Electrical Assistant they had done so in deviation and departure from the recruitment rules and committed a patent illegality. However, such patent illegality cannot be allowed to continue and action of RRB Ahmedabad to follow the recruitment rules cannot be termed as an act of hostile discrimination and violation of Articles 14 & 16 of the Constitution of India. Hence, the decision of the RRB Ahmedabad in not prescribing the said qualification and not allowing the diploma holders to compete with others cannot be quashed and set aside. Wrong committed by one cannot be allowed to be perpetuated by the other when the recruitment rules themselves prescribed for minimum educational qualification. It was not open for the RRB s in deviation and departure from the recruitment rules to prescribe diploma as one of the eligibility criteria. The refusal of the RRB Ahmedabad from following the illegality committed by other RRBs and adhering to the recruitment rules cannot be held to be hostile discrimination so far as the candidates of the RRB Ahmedabad were concerned. The Supreme Court has already laid down that equity and law are twin brothers and law should be applied and interpreted equitably, but equity cannot over ride written or settled law. The applicants therefore cannot claim that they arc discriminated by the RRB, Ahmedabad and were wrongfully not allowed to compete in the selection for the post of Diesel/Electrical Assistant on the ground that they were not possessing required minimum educational qualifications. There is no dispute that they do not possess the required minimum educational qualification and as such they were not eligible to participate in the selection held for the recruitment to the post of Diesel/Electrical Assistant. We also do not find any substance or merit in the challenge to the RRB’s letter dated 20.8.92 as it is not open to the Tribunal to question the qualification prescribed for the post in question. The decision of the minimum education qualification for recruitment to the post of Diesel/Electrical Assistant falls very much within the domain of the Railway Board and the Tribunal cannot review the policy decision taken by the Railway Board.
18. We find that the following decision of Apex Court in Chandigarh Administration v. Jagjit Singh, (1995) 1 SCC 745 in the matter of discrimination is directly applicable.
“Generally speaking, the mere fact that the respondent authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal of unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order.”
19. We also note that note (ii) below Para 10 of the notification is as follows:
Admission to the written examination is provisional as the application are fully scruitinized later. In case a candidate does not fulfill all the requirements prescribed in the Employment Notice his/her candidates is liable to be rejected even at a later stage when the deficiency is noticed.”
20. For the aforesaid reasons, we find that there is absolutely no merit in any of the O. As. and arc of the opinion that all the O.As. deserve to be rejected with costs. In the conclusion, therefore, the O.As. are rejected with costs.