Tapas Kumar Das v. State of West Bengal — 1996 DIGILAW 348 (CAL)

JUDGMENT 1. The petitioner is an Assistant Teacher in Science Group working since August 9, 1988, in Bakhrabad Bharati Vidyapith, which is a duly recognized Government Aided High School in the District of Midnapore. The petitioner obtained B.Sc. with distinction in the year 1970, and also obtained the Degree of Bachelor of Education from the Calcutta University in the year 1975, and was placed in the Second Class. 2. At the time of entry in service as the teacher, accordingly he was B. Sc., B.Ed, and he was placed in the pay scale of Rs. 1640-3635, which is a revised Pay scale No 14 of Annexure-III of the ROPA Rules as published by the Government in Memo No 33-Edn(B), dated Calcutta, the 7th March, 1990 His existing pay on the basis of the said revised pay scale was fixed at Rs. 2655/- on May 24, 1995. The ROPA Rules also provide higher pay scale for the teachers who have enhanced qualification, which is called a qualification pay. 3. It appears that, in order to have the benefit of higher pay scale which is given on the basis of acquiring of higher academic qualifications, the petitioner had obtained the Master of Science in Mathematics Degree in the Correspondence Course introduced by the Annamalai University. The certificate that was issued by the Annamalai University on 29.01.1996, provides that "This is to certify that the M.Sc., Mathematics Degree (Distance Education) Examination for Tapas Kumar Das, Reg. No. 18E28P2804, was ended on 23rd May, 1995". Thereafter, a provisional certificate was issued to the petitioner by the said University, in which it was certified that "This is to certify that Tapas Kumar Das has passed the Master of Science in Mathematics Degree Examination held in May 1995, and that he/she was placed in Second Class." The said provisional certificate was issued on September 18, 1995. 4 On the basis of the said certificate, the petitioner applied to the Secretary of the Bakhrabad Bharati Vidyapith, through the Head Master for the re-fixation of the pay due to increase of qualification in this regard. 5. It also appears that on the prayer made by the petitioner, the Managing Committee of the said School, by its Resolution dated January 18, 1991, allowed the petitioner to sit for the examination for the purpose of increasing his educational qualification. 5. It also appears that on the prayer made by the petitioner, the Managing Committee of the said School, by its Resolution dated January 18, 1991, allowed the petitioner to sit for the examination for the purpose of increasing his educational qualification. After the petitioner had obtained the said degree from the said University, the Managing Committee of the said School, in its meeting dated 29.12.1995, resolved that the District Inspector of Schools should move for the purpose of giving him the increased pay scale of Rs. 1780-3780, as the said teacher had increased his qualification by acquiring M.Sc. Degree. Accordingly, the matter was referred to the District Inspector of Schools (SE), Midnapore, by the school authorities. All papers in connection therewith were submitted to the District Inspector of Schools. 6. Earlier, the petitioner referred the matter before the University Grants Commission for ascertaining the value of such degree and the University Grants Commission, by the letter dated September 8, 1995, informed the petitioner as follows :- "I am directed to refer to your letter No. NIL dated 24.7.95 on the above subject, I am directed to say as under :- 1. Recognition of degrees awarded by statutory University/Institution deemed to be University for the purposes of employment is done by the State/Central Government concerned which may kindly be approached direct in this regard. 2. Recognition of degrees for purposes of admission is done by the Universities concerned on reciprocal basis. You are advised to approach the concerned University direct in the matter. You may also approach the Secretary, Association of Indian Universities, 16, Kotla Marg, New Delhi-110 002 in this regard. 3. Annamalai University, Annamalai Nagar, has been established by an Act and is competent to award its own degrees, which are recognised by the University Grants Commission." 7. Ultimately, the District Inspector of Schools, by his Memo dated May 16, 1996. informed the Secretary of the said school that:- "It appears that Sri Tapas Kr. Das, Asstt. Teacher has improved qualification by passing M. Sc. through Correspondence Course. In terms of G.O. No. 904-SE(Secy) dated 19.12.94 higher scale of pay is not admissible if the candidate improve his qualified through Correspondence Course. The prayer of Shri Das cannot be considered in the light of the above mentioned G.O." 8. With regard to the degrees obtained in respect of Correspondence Courses, the Assistant Secretary. through Correspondence Course. In terms of G.O. No. 904-SE(Secy) dated 19.12.94 higher scale of pay is not admissible if the candidate improve his qualified through Correspondence Course. The prayer of Shri Das cannot be considered in the light of the above mentioned G.O." 8. With regard to the degrees obtained in respect of Correspondence Courses, the Assistant Secretary. Department of School Education, Government of West Bengal, informed the Director of School Education, Government of West Bengal, by the Memo dated December 19, 1994, that : "The undersigned is directed to refer to the subject noted above and to say that the State Government in Education (School) Department as a matter of policy, have not agreed to recognise a degree/diploma/Master Degree etc. acquired through Correspondence Course from any University etc. as equivalent to a regular course conducted by recognised Universities. As such, the question of extending the benefit to higher scale for acquiring such a degree/diploma/Master Degree through Correspondence Course does not arise. This disposes of his memos quoted under reference as well as any other similar reference already made on this score." 9. The learned Counsel appearing on behalf of the petitioner submitted that in view of the decision of a learned Single Judge of this Court in the case of (1) Muchha Mondal v. State of West Bengal & Ors. reported in 1996 (1) CLJ 306 , the Memo No. 904-SE(Secy), dated December 19, 1994, was set aside on the ground that there was no basis for making any distinction between the degree obtained in a Correspondence Course and the degree obtained after prosecuting regular studies in a University as a regular student and accordingly the said notification was arbitrary and illegal. 10. It was further submitted that when the University Grants Commission states that Annamalai University has been established by an Act and is competent to award its own degrees which are recognised by the University Grants Commission and accordingly in view of the decision of the University Grants Commission, the State Government had acted illegally and arbitrarily in issuing the G.O. No. 904-SE, dated 19.12.1994, and that the improved qualification through Correspondence Course had to be treated as valid and binding on all concerned. 11. 11. The question is whether the Court is entitled to make determination of equivalence of examinations of other Universities, Board with its examination by University, with the degree, diplomas and certificates obtained from a Correspondence Course which is admittedly not a regular course and in which Ii student has not to attend any classes, or to attend lectures, but everything is done through correspondence and that too by postal service. This question was considered by the Supreme Court in the case of (2) Rajendra Prasad Mathur v. Karnataka University reported in AIR 1986 SC 1448 , wherein the Supreme Court had the occasion to consider the effect of Higher Secondary Examination held by Higher Secondary Education Board. Rajasthan, which was not recognised by the Karnataka University. 12. In this connection, at Paragraph 7, at page 1454, the Supreme Court held that it was difficult to appreciate how Higher Secondary Examination held by the Higher Secondary Board, Rajasthan, after only eleven years schooling, could be regarded as equivalent to Pre-University Examination of the Pre-University Education Board, Bangalore, which comes all the culmination of a full 12 years course. So, it is difficult to understand how the decision of the Karnataka University not to recognise the First Year B.Sc. Examination of the Rajasthan and Udaipur Universities as equivalent to the Pre- University Education Board, Bangalore, could be regarded as arbitrary or fanciful. 13. In this connection, the Supreme Court observed : "It is for each University to decide the question of equivalence and it would not be right for the Court to sit in judgment over the decision of the University because it is not a matter on which the Court possesses any expertise. The University is best fitted to decide whether any examination held by a University outside the State is equivalent to an examination held within the State having regard to the courses, the syllabus, the quality of teaching or instruction and the standard of examination. It is an academic question in which the Court should not disturb the decision taken by the University. Here we find that no material has been placed before the Court on the basis of which the Court could say that the decision of the Karnataka University not to recognise the Higher Secondary Examination of the State of Rajasthan or the first year B.Sc. Here we find that no material has been placed before the Court on the basis of which the Court could say that the decision of the Karnataka University not to recognise the Higher Secondary Examination of the State of Rajasthan or the first year B.Sc. Examination of the Universities of Rajasthan and Udaipur as equivalent to the Pre-University Examination of the Pre-University Education Board. Bangalore, was arbitrary or not based on reasons. We must therefore reject this contention urged on behalf of the appellant." 14. According to the principle laid down by the Supreme Court in this regard, it is the University of Calcutta or any other University within the State of West Bengal is the only competent authority to decide the question of equivalence of regular course of study, having regard to the regular course and syllabus, the quality of teaching and instructions and the standard of examination held by such Universities in comparison with the courses, syllabus quality of teaching and instructions and the standard of examination of other Universities. The degrees and diplomas obtained in Correspondence Course cannot be held by the Court to be equivalent to the degrees and diplomas issued by the Universities. No material has been placed before the Court on the basis of which the pronouncement was made in the case of Muchha Mondal v. State of West Bengal (supra), and other cases. The Court is not competent in view of the judgment of the Supreme Court to declare that the degrees and certificates given in the Correspondence Courses from other Universities situated thousand miles away from the State should be regarded as the degrees and diplomas conferred by the Universities in the State after regular studies, having a particular syllabus, having a particular course and quality of teaching and instruction as also maintaining a standard of examination. The Court cannot usurp the powers and functions of such educational authorities such a matter is clearly beyond the scope of judicial review by the High Court under Article 226 of the Constitution. If the Court decides that the certificates of Correspondence Course and the degrees of the Universities are the same and equal in that event, it would amount to passing a declaratory judgment without any trial and evidence 2nd without considering the relevant materials which are required to be considered. 15. If the Court decides that the certificates of Correspondence Course and the degrees of the Universities are the same and equal in that event, it would amount to passing a declaratory judgment without any trial and evidence 2nd without considering the relevant materials which are required to be considered. 15. In the instant case, according to the University Grants Commission, the Annamalai University is a creature of the statute and is authorised to confer degrees and diplomas as the said University may think fit and proper. but that does not mean that the certificates and diplomas and degrees issued by the University after conducting a Correspondence Course will be treated to be equivalent to regular degrees and diplomas given by the Universities. So far as this question is concerned, the University, within which such educational institutions fall, is the only best fitted authority to decide whether any examination or course held by any other University outside the State of West Bengal is equivalent to an examination held within the State having regard to several factors which have been highlighted by the Supreme Court. It is not for the Court to make any pronouncement on a question which is beyond the scope of judicial review. 16. Even in the case of equivalence of posts, the Five Judge Constitutional Bench of the Supreme Court, in the case of (3) E.P. Royappa v State of Tamil Nadu reported in AIR 1974 SC 555 , had held if the St1te Government wants to appoint a member of Indian Administrative Service to a non-cadre post created by it, it cannot do so unless it makes a declaration setting out which is the cadre post to which such non-cadre post is equivalent in status and responsibility. It is a mandatory requirement which must be obeyed. The Government must apply its mind to the nature and responsibilities of the functions and duties attached to the non-cadre post and determine the equivalence. The pay attached to the non-cadre, post is not material. 17. It was further held that it is open to a member of the Indian Administrative Service to contend, notwithstanding the declaration of equivalence, that the non-cadre post to which he is appointed is in truth and reality inferior in status and responsibility to that occupied by him and his appointment to such non-cadre post is in violation of Article 311 or Articles 14 and 16. The burden of establishing this would undoubtedly be very heavy upon the polite and the Court would be slow to interfere with the declaration of equivalence made by the Government. 18. Further. it was observed that where it appears that the declaration of equivalence is made without application of mind to the nature and responsibilities of the functions and duties attached to the non-cadre post or extraneous or irrelevant factors are taken into account in determining the equivalence or the nature and responsibilities of the functions and duties of the two posts are so dissimilar that no reasonable man can possibly say that they are equivalent in status and responsibility or the declaration of equivalence is mala fide or in colourable exercise of power or it is a cloak for displacing a member of the Indian Administrative Service from a cadre post, which he is occupying, to a non-cadre post. 19. Accordingly, it is well-settled principle that in regard to equivalence of degrees and even in case of declaration of equivalence of posts under the provisions of the Indian Administrative Service (Cadre) Rules, 1954, the Court has a limited role to play. In so far as equivalence of degrees is concerned, it is entirely within the domain of the University to decide the question of equivalence and not for the Court to sit in judgment over the decision of the University because it is not a matter on which the Court possesses any expertise. But, in so far as equivalence of posts is concerned, the Court reserves a very limited power of judicial review to correct an error of law and beyond that the Court has no jurisdiction whatsoever in such matters. 20. It appears that there was no material and/or basis from which it can be said even vaguely, that the courses of study and the manner of study in Correspondence Courses, or in other words, postal service Correspondence Courses, where a student has not to attend the lectures conducted by the Universities and that such courses could be prosecuted sitting at home while in service and this is nothing but a pastime job and cannot be treated as an M.Sc. Degree obtained by a student whose admission is restricted and who has to undergo a course of study in which he has to attend classes regularly conducted by the University in which the University teachers teaches them and thereafter an examination is conducted, after maintaining a certain standard of teaching. 21. The Supreme Court, in the case of (4) B.L. Asawa v. State of Rajasthan reported in AIR 1982 SC 933 , had held that in order that there should be a scope for declaration of 'equivalence' of a qualification obtained from another body, there should be a corresponding qualification earned by virtue of passing an examination or test conducted by a University. There can be declaration of equivalence only as between a degree etc. awarded by a concerned University and obtained from a body different from the concerned University. 22. Correspondence Courses may have become popular as one can obtain a diploma from Correspondence Courses. But, it is entirely within the domain of the University to decide the question. Secondly, when higher pay has to be given by the State Government through its Education Department and when the State Government has decided not to recognise such degrees or diplomas obtained from Correspondence Course and had adopted a policy, in my view, it was not at all proper to set aside such a policy decision taken by the State Government when the State Government bas decided that the degrees or diplomas acquired through Correspondence Courses from any University cannot be treated as equivalent to a regular course conducted by a recognised University in a regular manner. 23. Accordingly, I am of the view that the State Government was well within its jurisdiction not to agree to recognise degrees, diplomas and Master Degrees acquired through Correspondence Course from other University as equivalent to a Master Degree given by the University after regular course. 24. In (5) Maharashtra State Board of SHSE v. Paritosh Bhupesh Kumar Sheth reported in AIR 1984 SC 1943, the Supreme Court held that the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day to-day working of educational institutions and departments controlling them. 25. 25. It would be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature isolated from actual realities of the grassroot problems involved in the working of the system and unmindful of the situation. 26. Accordingly, I do not find any reason to interfere with the Memo dated December 19, 1994, issued by the State Government and rejection of the petitioner's prayer for sanction of higher pay scale by the District Inspector by Memo dated 16.05.1996. 27. My attention has been drawn to the decision given by G.R. Bhattacharjee, J. in the case of (6) Kalidas Gangopadhyoy & Others Vs. State of West Bengal & Others reported in 1996(2) CLJ 42 , relying upon the decision of His Lordship in Muchha Mondal v State of West Bengal reported in AIR 1996 Cal 132 , wherein it was held that a statutory University recognised by the University Grants Commission is empowered to grant academic degree and that the Correspondence Courses introduced by many recognised Universities are now a prevalent phenomenon in the sphere of education. Such University courses afford opportunity of education to persons who, for variety of reasons, are unable to avail of the conventional method of campus education. 28. It was further observed that Article 41 of the Constitution lays down the directive principle of making effective provision inter alia for securing the right to education. The Correspondence Courses introduced by recognised Universities are a step in that direction. 29. In that case, it was further observed that the degree awarded by the Himachal Pradesh University to its Correspondence Course students cannot be treated as a farce. It is the same degree awarded by the University to its regular students. Any discrimination in the matter as has been done by the Education Department of the Government of West Bengal in issuing the impugned Government Order was highly arbitrary misconceived and untenable. In that case the Court, after thorough examination of the matter in all its imperative aspects, held that the Master Degree awarded by the Himachal Pradesh University to its Correspondence Course students is a valid and potent a degree as is awarded to its regular students and also as valid and potent as a Master Degree of any other recognised university in India. 30. 30. Article 41 of the Constitution of India inter alia provides that the State shall within the limits of its economic capacity and development, make effective provision for securing the right to education. Accordingly, the duty of the State under this directive principle is not only to establish educational institutions but also to effectively secure the right to education. 31. On the strength of the provisions of Article 41 of the Constitution, in my view, it cannot be held that the degrees or diplomas issued by the University after prosecuting a regular course of study, cannot be equated with the degrees or diplomas given through Correspondence Course. 32. Further, the right to education through Correspondence Courses and to get a degree or diploma cannot be interfered with by any authority, but the question is whether the issue should be equated with regular students who get degrees after prosecuting regular course of study. In my view, the two cannot be equated and further the hawed Judge in the said decision had not only equated the two degrees and/or observed that the Correspondence Course degree and regular degree should be treated at par, but the same was sought to be enforced against the State for the purpose of giving higher pay scale, a pay scale which is given on the basis of higher qualification. 33. The learned Judge held that if the Correspondence Course and regular course are not treated at par, that would result in discrimination. 34. It is well-settled principle that Article 14 of the Constitution forbids class legislation, but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification, being founded on intelligible differentia which distinguishes persons or things that are grouped together from those that are left out from the group and the differentia must have rational nexus sought to be achieved by the statute in question. 35. The degrees obtained in a regular course and the degrees obtained in a Correspondence Course form two different and distinct class and as such the same could not be treated at par. 36. 35. The degrees obtained in a regular course and the degrees obtained in a Correspondence Course form two different and distinct class and as such the same could not be treated at par. 36. In the aforesaid two cases, the learned Judge had gone beyond the scope of judicial review by the High Court under Article 226 of the Constitution in having made the declaration of equivalence of degrees obtained through Correspondence Course and degrees obtained from a University after prosecuting a regular course of study and examination. 37. In my view if the Court tries to play the role of expert, particularly the role of Universities, it would be like skiing on virgin snow and that when there is no recognised path for the Court to follow and to an uncertain destination. The High Court's power of judicial review under Article 226 of the Constitution could not be exercised for the purpose of evaluating and/or equivalence of degrees obtained through Correspondence Course and regular recourse. 38. The Courts are not to interfere with the educational policy or academic policy, as it is the function of the Universities and experts. It is not the function or the Courts to sit in judgment over the degrees, particularly degrees obtained from Correspondence Course and make evaluation and treat then equal to degrees obtained after prosecuting regular course of studies and the same must necessarily be left to expert bodies. The Court cannot be expected to decide this aspect of the matter which is exclusively within the domain of the University Authorities or other experts in the field. 39. The views expressed be the learned Judge in those cases are contrary to the principles laid down by the Supreme Court in this behalf. The said judgment, in my view, has been given in per incuriam. A decision would be treated as given per incuriam when the same is given in ignorance of the decision pr contrary to the decision given by the Supreme Court of India in view of the provision of Article 141 of the Constitution read with Article 144 of the Constitution. 40. The Correspondence Course introduced by the said University whether was a mere farce or not or for alluring the students to be duped or whether the same was for gaining financial profit is concerned, I do not make any comment. In my view. 40. The Correspondence Course introduced by the said University whether was a mere farce or not or for alluring the students to be duped or whether the same was for gaining financial profit is concerned, I do not make any comment. In my view. it is not for this Court to make any comment on this aspect of the matter. What may be the value or purpose of such education through Correspondence Courses. the question is whether the same should be given the same status as that of regular course and that if it is, treated at par, in that event nobody would take the trouble of going through the regular course of study and attain the lectures and undergo a rigorous system and sit for the examination and on the contrary everybody would like to obtain degree through Correspondence Course sitting at home. There are degrees of various Universities of this country not recognised in foreign country and vice versa. It depends upon the wisdom of the educational authorities and not for the Court and other authorities. 41. A decision would be treated as given per incuriam when it is given in ignorance of the decision of the Supreme Court. 42. As laid down by the Supreme Court in the case of (7) Punjab Land Development and Reclamation Corporation (P) Ltd v. Presiding Officer reported in 1990 (3) SCC 682 , the Supreme Court can lay down the law afresh even when two or more judgments cannot stand, together. Article 141 which embodies as a Rule of Law the doctrine of precedent was enacted to declare the law binding on all Courts in the country excluding the Supreme Court itself. It is also established that an order delivered without argument and without reference to relevant provisions of the Act and without citation of the authority, is also per incuriam. 43. Any judgment delivered by the High Court under Article 226 of the Constitution in respect of matters which are beyond the scope of judicial review, cannot be treated to be a binding precedent and has to be ignored as such and accordingly, the said decision cannot be treated as to be valid as the same has been passed in ignorance of the judgments of the Supreme Court. 44. 44. Accordingly, the writ application is dismissed as the petitioner is not entitled to enforce the degree obtained through Correspondence Course for the purpose of getting higher pay scale. Accordingly, the writ application is dismissed without any order as to costs.