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2013 DIGILAW 599 (JK)

Kamal Kishore Verma v. State

2013-10-03

DHIRAJ SINGH THAKUR

body2013
1. The controversy in the aforementioned two writ petitions being similar in nature, the same shall stand disposed of vide this common judgment. 2. Petitioners in both the petitions claim to be possessed of M. Phil. degrees from the University of Jammu and G.A. Singhania University, which are stated to be recognized by the University Grants Commission. It is stated that the recruitment and appointment in the Higher Education Department of the Jammu and Kashmir, is governed by the Jammu and Kashmir Education (Gazetted) College Service Recruitment Rules, 2008 (here-in-after called the Rules of 2008), notified vide SRO 423 of 2008 dt. 23.12.2008 [Refer 2008 (7) JKS JK-221 : JKS Soft JKS/706]. For the post of Lecturer, the minimum qualification for direct recruitment at the time of initial appointment has been prescribed in Class IV(A) of Schedule-II of the aforementioned rules, which is reproduced below:- "IV.A. 8000-13500 Lecturer (i) Arts, Commerce and Sciences Master's Degree in the Subject concerned with at least 55% marks (50% marks in case of Scheduled Caste/Scheduled Tribe and Physically and Visually Handicapped candidates) or its equivalent grade of "B" in the seven point scale from an Indian University or an equivalent Course/degree from an Indian/ Foreign University with NET/SLET Conducted by the UGC/CSIR/ Association of Indian University (AIU/University of Kashmir/ Jammu with accreditation from UGC or Ph.D for postgraduate Level teaching and Ph.D/M.Phil. for undergraduate level teaching." 3. It is stated that in the year 2000, the post of Lecturer was re-designated as Assistant Professor. 4. In the year 2009, the Public Service Commission, invited applications for appointment to the post of Assistant Professor, Higher Education Department vide notification dt. 6th of March, 2009, and the recruitment was made strictly as per the eligibility prescribed under the Rules of 2008, and there was no deviation whatsoever and all the candidates, possessed of M.Phil. degrees, were allowed to compete in the process of selection and later came to be appointed as such. 5. It is stated that 2009 was a crucial year for the petitioners because at that time, they had to decide either to go for Ph.D or M.Phil. However, in view of the fact that the petitioners would fulfill the eligibility criteria with M.Phil. degree, they decided to undergo the said course and then apply for the post of Lecturer (Assistant Professor) to be advised subsequently. 6. However, in view of the fact that the petitioners would fulfill the eligibility criteria with M.Phil. degree, they decided to undergo the said course and then apply for the post of Lecturer (Assistant Professor) to be advised subsequently. 6. Vide notification No. 09-PSC (DR-P) of 2013 dt. 25.5.2013, issued by the Public Service Commission, the post of Assistant Professor in various disciplines has been advertised, wherein following eligibility conditions have been prescribed:- "Master's Degree in the subject concerned with at least 55% marks (50% marks in case of scheduled caste/scheduled tribe and physically and visually handicapped candidates) or its equivalent grade of "B" in the seven point scale with letter grades O, A, B, C, D, E and F with NET/SLET conducted by the UGC/CSIR/Association of Indian University (AIU)/University of Kashmir/Jammu with accreditation from UGC or Ph.D." 7. Mr. Johal, learned Senior counsel, appearing for the petitioners in writ petition, SWP 1288/13, along with Mr. Shan, learned counsel for the petitioner in SWP 1400/13, highlighted the fact that the note appended to the impugned advertisement notice under column 2 of the prescribed qualification, envisaged that the process of selection would be undertaken strictly in accordance with the terms of SRO 423 dt. 23.12.2008 read with Government Order Nos. 252-JE of 2012 dt. 30.5.2012, 254-HE of 2013 dt. 21.5.2013 and communication No. Edu-Coll/Coord/774/2013 dt. 22.3.2013, from the Higher Education Department of the government of Jammu and Kashmir. 8. The assertion of the counsel for the petitioners was that the qualification contrary to the Rules of 2008, could not have been introduced in the impugned advertisement notice issued by the public Service Commission. It is stated that the M.Phil. degree, which is otherwise good for purposes of appointment as Assistant Professor in terms of the aforementioned Rules of 2008, has been totally ignored. It is stated that the Government Order No. 254-HE of 2013 dt. 21.5.2013, issued by the Principal Secretary to Government, Higher Education Department, orders the qualification of M.Phil, to be deleted from the Rules of 2008, in view of UGC regulations on minimum qualifications for appointment as Lecturers/Assistant Professor in Colleges. 9. It is stated that the Government Order No. 254-HE of 2013 dt. 21.5.2013, issued by the Principal Secretary to Government, Higher Education Department, orders the qualification of M.Phil, to be deleted from the Rules of 2008, in view of UGC regulations on minimum qualifications for appointment as Lecturers/Assistant Professor in Colleges. 9. It is in this context, urged that an executive Order could not have been issued modifying, amending or diluting the condition of eligibility, which is otherwise prescribed in the Rules of 2008, which rules have been framed in terms of the powers conferred by the Proviso to Section 124 of the Constitution of Jammu and Kashmir. It is stated that the degree of M.Phil. which is otherwise recognized for appointment to the post of Assistant Professor, could have been deleted only by way of an amendment in the Rules of 2008 itself and not through the medium of an executive order as has been done in the present case. Reliance in this regard is placed on the judgments of the Apex Court reported as 2007(9) SCC 337 , Punjab State Warehousing Corpn, Chandigarh, v. Manmohan Singh & Anr. and 2006(4) SCC 1 , Secretary, State of Karnataka and others v. Umadevi (3) and others. 10. Heard learned counsel for the parties. 11. The sustainability of an executive order, which is patently contrary to the statutory rules, is no longer res integra. 12. In Punjab State Warehousing Corporation, Chandigarh v. Manmohan Singh & anr, (2007) 9 Supreme Court Cases 337, the Apex Court held as under: "12. Furthermore, when the terms and conditions of the services of an employee are governed by the rules made under a statute or the proviso appended to Article 309 of the Constitution of India laying down the mode and manner in which the recruitment would be given effect to, even no order under Article 162 of the Constitution of India can be made by way of alterations or amendments in the said rules. A fortiori if the recruitment rules could not be amended even by issuing a notification under Article 162 of the Constitution of India the same cannot be done by way of a circular letter. 13. Reliance in this regard was placed upon a judgment of A. Umarani v. Registrar, Coop. Societies, (2004) 7 SCC 112 in paragraph 13, which is reproduced as under: "13. 13. Reliance in this regard was placed upon a judgment of A. Umarani v. Registrar, Coop. Societies, (2004) 7 SCC 112 in paragraph 13, which is reproduced as under: "13. This aspect of the matter is covered by a decision of this Court in A. Umarani v. Registrar, Coop. Societies wherein the law was stated in the following terms: (SCC p. 126, para 45) "45. No regularization is, thus, permissible in exercise of the statutory (sic executive) power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules." 14. The settled legal position, thus, being clear, that the respondents could not have by virtue of Govt. Order No. 254-HE of 2013 dated 21.5.2013 issued by Principal Secretary to Govt. Higher Education Department, issued orders regarding deletion of M.Phil. qualification from the rules of 2008. The qualification of M.Phil. could have been deleted only by way of an amendment in the Rules of 2008 itself and not by way of an executive order passed in purported exercise of Section 5 of the Constitution of Jammu and Kashmir, analogus to Article 162 of the Constitution of India. 15. For the reasons mentioned above, the impugned orders bearing No. 254-HE of 2013 dated 21.5.2013 and the note introduced in the advertisement notification No. 9-PSC of 2013 dated 23-5-2013 are quashed. The petitioners are held entitled to consideration for appointment on the basis of the M.Phil. degree possessed by them in accordance with the Jammu and Kashmir Education (Gazetted) College Service Recruitment Rules, 2008. 16. Disposed of accordingly.