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Himachal Pradesh High Court · body

2014 DIGILAW 473 (HP)

Naresh Panwar v. State of H. P.

2014-04-26

RAJIV SHARMA

body2014
JUDGMENT Per Rajiv Sharma, Judge: The respondent-Commission issued advertisement No.XII/2009, dated 12.3.2010, whereby applications were invited from the candidates for the post(s) in different Departments of Himachal Pradesh on the prescribed application forms. Last date of receipt of applications was 12.4.2010. According to subject-wise details of vacancies for different categories, 12 posts of Lecturer (College Cadre) Class-1 (Gazetted) in Computer Applications, on contract basis, were also notified. The petitioners and respondent No.3 submitted their applications in the prescribed format for considering their candidature to the respondent-Commission. Candidature of petitioner No.1 was rejected by respondent-Commission. Petitioners No. 2 to 5 were issued call letters, pursuant to which they were called for interview. Candidature of respondent No.3 was also rejected by respondent-commission. He approached this Court by way of CWP No.1322/2010. Fact of the matter is that, respondent No.3 was also permitted to appear in the interview. He was selected as per result declared vide Annexure P-4. His name was recommended by respondent-commission to respondent No.1. 2. Mr. Sanjeev Bhushan, learned Advocate, has strenuously argued that respondent No.3 did not possess essential qualification as per the Recruitment and Promotion Rules for the post of Lecturer (College Cadre) Class-I Gazetted in the Department of Higher Education read with advertisement No.XII/2009, dated 12.3.2010. He also argued that qualification of M.Tech. course could not be treated equivalent to M.Phil. course. 3. Mr. M.A. Khan, learned Additional Advocate General, Mr. D.K. Khanna and Mr. Ashwani Sharma, learned Advocates, have vehemently argued that respondent No.3 was duly qualified as per the Recruitment and Promotion Rules for the post of Lecturer (College Cadre) Class-I Gazetted in the Department of Higher Education read with advertisement No.XII/2009, dated 12.3.2010. They have referred to letter dated 27.7.2010, Annexure R-2 and letter dated 31.1.2011, Annexure R-3. 4. I have heard learned counsel for the parties and have gone through the record carefully. 5. Minimum educational qualification and other qualification(s) required for filling up the post of Lecturer (College Cadre) in Computer Applications, for direct recruitment, as per the Recruitment and Promotion Rules is that the candidate must possess a good academic record with at least 55% marks or an equivalent of 55% wherever the grading system is followed in Masters Degree level in the relevant subject from an Indian University or any equivalent degree from Foreign University recognized by the Government of India. The candidate besides fulfilling essential qualification as per Rule No. 7(1) of the Recruitment of Promotion Rules, should have cleared the eligibility test (NET) for Lecturers conducted by the UGC, CSIR or similar test accredited by the Public Service Commission as per Rule No.7(vi) of the Recruitment of Promotion Rules. As per Rule No. 7(vii) of the Recruitment of Promotion Rules, NET was compulsory requirement for appointment as Lecturer for those with postgraduate degree. However, the candidates having PH.D Degree in the concerned subject are exempted from NET for PG level and UG level teaching. The candidates having M.Phil. course in the concerned subject are exempted from NET for UG level teaching only. Same essential educational qualifications were laid down in the advertisement No.XII/2009, dated 12.3.2010. 6. The core issue involved in this petition is Whether M. Tech. course obtained by respondent No.3 can be treated at par with M.Phil. course? 7. It is not in dispute that respondent No.3 has not qualified eligibility test (NET) for Lecturers conducted by the UGC, CSIR or similar test accredited by the Public Service Commission. The candidates having M.Phil. in the concerned subject are exempted from NET for UG level teaching only. This Court in CWP No.1322/2010 issued certain directions to respondent No.1 and respondent-Commission to determine whether M.Tech. course is equivalent to M.Phil. course or not. In sequel thereto, the Secretary of respondent-Commission sent a communication to the Principal Secretary (Higher Education) to the Government of Himachal Pradesh on 27.7.2010, Annexure R-2. Text of the letter reads as under:- “I am direct to refer to your letter No. EDN-A-B(1)-7/2006-L dated 23.7.2008 on the subject cited above and to say that Commission has advertised to fill up the backlog posts of Lecturer (College Cadre) Computer application with Essential Qualification (i) A good academic record with at least 5% marks or an equivalent of 55% wherever the grading system is followed in Master’s degree level in the relevant subject from an Indian University or an equivalent degree from Foreign University recognized by the Govt. of India. In response to the advertisement, some candidates possessing Master’s degree different to that of Computer Application as mentioned below have also applied for the posts of Lecturer (College Cadre) Computer Application:- 1. M. Tech (Computer Science) 2. M.Sc. (IT) 3. M.Sc. (Computer Science) 4. Master of Computer Management 5. M.Sc. (Software Engineering) 6. of India. In response to the advertisement, some candidates possessing Master’s degree different to that of Computer Application as mentioned below have also applied for the posts of Lecturer (College Cadre) Computer Application:- 1. M. Tech (Computer Science) 2. M.Sc. (IT) 3. M.Sc. (Computer Science) 4. Master of Computer Management 5. M.Sc. (Software Engineering) 6. Master of Technology (CSE) You are, therefore, requested to kindly clarify as to whether the candidates possessing the different degrees as mentioned above are to be considered for the post of Lecturer (College Cadre) Computer Application or not.” 8. In sequel to the letter dated 27.7.2010, the Additional Secretary (Higher Education) to the Government of Himachal Pradesh vide letter dated 31.1.2011, Annexure R-3, informed the Secretary of respondent-Commission that M.Tech. (Computer Science) and M.Tech. (CSE) have been considered as research degrees equivalent to M.Phil. in other subjects by the H.P. University. Relevant text of the letter is as under:- “Except for the Master of Computer Management, all other degrees mentioned in the letter are considered to be the masters degrees in the relevant subject provided the degree awarding University is recognized by the UGC. However, M. Tech. (Computer Science) and M.Tech. (CSE) have been considered as research degrees equivalent to M.Phil. in other subjects by the H.P. University. So, the candidates having degrees mentioned in the letter except for the Master of Computer Management are eligible for lectureship.” 9. Mr. Ashwani Sharma, learned Advocate, has argued that the eligibility for taking admission in M.Tech. or M.Phil (Computer Science) is similar i.e. MCA/MSc. (Computer Science)/IT/Software Engineering/Computer Application/Information Systems. According to him, the M.Tech. course is of two years duration comprising of four semesters, which includes research work of one semester, whereas M.Phil. course is of one year duration having two semesters, which includes research work of one semester. He then contended that the admission to Ph.D. course in Computer Science is open for candidate possessing either M.Phil. in Computer Science with 55% marks or M.Tech. (Computer Science)/IT/Software Engineering/Computer Application/Information Systems with 55% marks. He also relied upon the ordinance No.35.54(ee) of the Himachal Pradesh University. He has drawn attention of the Court to notification dated 19.5.2010, Annexure R-4. Relevant text of the notification reads as under:- “For all purposes M.Tech. course shall be treated at par with M.Phil. courses. That means, for evaluation of teachers towards their promotion. M.Tech. He also relied upon the ordinance No.35.54(ee) of the Himachal Pradesh University. He has drawn attention of the Court to notification dated 19.5.2010, Annexure R-4. Relevant text of the notification reads as under:- “For all purposes M.Tech. course shall be treated at par with M.Phil. courses. That means, for evaluation of teachers towards their promotion. M.Tech. dissertation shall be treated at par with M. Phil. dissertation.” 10. It is clear from the contents of letter dated 31.1.2011, Annexure R-3 that the issue – whether M.Tech. course is equivalent to M.Phil. course- has been considered by the Chairman, Department of Computer Science. 11. There is a detailed procedure prescribed in Chapter-XX of the Hand Book, Volume-I (The First Ordinance of Himachal Pradesh University 1973) the manner in which the equivalence of examinations of other Universities is to be determined by the Himachal Pradesh University. Ordinance 20.1 reads as under:- “The equivalence of an examination of any board or institution or institute or deemed University or University established by law in India or of a Foreign University or of any other examination with a corresponding examination of the University with or without any condition, shall be determined by the Vice-Chancellor on the advice of Equivalence Committee consisting of Deans of all Faculties with the Dean of Studies as the convener.” 12. It is clear from the phraseology made in ordinance 20.1 (supra) that the equivalence of an examination of any board or institution or institute or deemed University or University established by law in India or of a Foreign University or of any other examination with a corresponding examination of the University with or without any condition, is to be determined by the Vice-Chancellor on the advice of Equivalence Committee consisting of Deans of all Faculties with the Dean of Studies as the convener. As per ordinance 20.2, the Equivalence Committee has been permitted to co-opt such additional member or members, as may be necessary to determine the equivalence of a particular examination. The Equivalence Committee has been permitted, as per ordinance 20.3, to lay down the procedure to be followed at its meetings and the number of members required to form the quorum. In the present case, there was no compliance with Chapter-XX of the Hand Book, Volume-I (The First Ordinance of Himachal Pradesh University 1973). The Equivalence Committee has been permitted, as per ordinance 20.3, to lay down the procedure to be followed at its meetings and the number of members required to form the quorum. In the present case, there was no compliance with Chapter-XX of the Hand Book, Volume-I (The First Ordinance of Himachal Pradesh University 1973). The matter has been examined only by the Chairman, Department of Computer Science of the Himachal Pradesh University. The equivalence of examinations of other Universities is determined by the University concerned for the purpose of academics. The Equivalence Committee is required to take into consideration the syllabus of a particular course and its duration for determining the equivalence with other courses. It is a long drawn process that is why ordinance requires for the determination of the issue by the Vice Chancellor on the advice of Equivalence Committee consisting of Deans of all Faculties with the Dean of Studies as the convener. The additional members can also be co-opted by the Equivalence Committee. There are no reasons assigned by the Chairman, Department of Computer Science how he has treated the M.Tech. course at par with M.Phil. course. A detailed procedure has also been provided for recognition of degrees, diplomas and certificates in Handbook on Personal Matters, Vol.I, (Second Edition) for the purpose of recruitment to various services/posts under the State Government. As per Chapter 6.4(i), the case for recognition of general academic and non-technical degrees/diplomas is to be dealt with in the Department of Personnel (A-II) and the orders are to be issued by the Department of Personnel. The Department of Personnel (A-II) is required to consult the Education Department or the other Department(s) dealing with the affairs of such non-technical professions, if need be. According to Chapter 6.4(ii), the cases of recognition of professional/technical qualifications are to be processed and final orders are to be issued by the Education Department. The Education Department is required to consult the Department(s) dealing with the affairs of such technical professions or the Department(s) where the incumbents holding such degrees/diplomas are likely to be appointed. The H.P. Public Service Commission, as per chapter 6.4(v), is required to be consulted by the concerned Departments in all cases where the degree/diploma proposed to be recognized would render the holder of such degree/diploma eligible for appointment to a post, recruitment to which is within the purview of the Commission. The H.P. Public Service Commission, as per chapter 6.4(v), is required to be consulted by the concerned Departments in all cases where the degree/diploma proposed to be recognized would render the holder of such degree/diploma eligible for appointment to a post, recruitment to which is within the purview of the Commission. The procedure laid down hereinabove is also to be made applicable to determine equivalence of the degrees. 13. Mr. Ashwani Sharma, learned Advocate, argued that petitioner No.1 has also challenged Recruitment and Promotion Rules in CWP No.1322/2010. However, fact of the matter is that there is no determination on this issue. The issue has remained alive. 14. Now as far as notification dated 19.5.2010 Annexure R-4 is concerned, it is the Himachal Pradesh University, who in its own wisdom, has treated the M.Tech. course with M.Phil. course. Merely that the Himachal Pradesh University has decided to treat the M.Tech. course at par with M.Phil. course would not automatically deem to alter the Recruitment and Promotion Rules framed under Article 309 of the Constitution of India. The essential qualification is required to be fulfilled by the candidates. The addition to ordinance 35.54 has been made only on 19.5.2010, though in the instant case, the last date of receipt of applications was 12.4.2010. 15. As per the ordinance No.35.54(ee) of the Himachal Pradesh University, the essential qualification for filling up the post of Lecturer in the Department of Computer Science of the University is B.E./B.Tech. in Computer Science/Computer Engineering/Electronics or Master’s Degree in Computer Application. There is no reference to qualification of M.Tech./M.Phil./Ph.D. However, the qualification of Ph.D. in Computer Science/Electronics and Telecommunication or M.Tech./M.E. in Computer Science or allied subject is desirable. 16. Generally, after graduation, a candidate undertakes post graduation and thereafter takes admission in M.Phil. course. Even as per the University Ordinance 15.1, a candidate seeking admission to the M.Phil. Course must have at least 55% marks (50%) in case of SC/ST) in the subject concerned at Master level. M.Phil. course is full time regular course as per University ordinance and the duration of the M.Phil. course is of one year comprising of two semesters from the date of admission. 17. What emerges from the facts, enumerated hereinabove, is that the procedure adopted by respondent No.2 to determine the equivalence of M.Tech. course with M.Phil. course is not as per the procedure prescribed. course is of one year comprising of two semesters from the date of admission. 17. What emerges from the facts, enumerated hereinabove, is that the procedure adopted by respondent No.2 to determine the equivalence of M.Tech. course with M.Phil. course is not as per the procedure prescribed. It was for respondents No. 1 and 2 to determine the equivalence of M.Tech course with M.Phil course. Respondents No.1 and 2 have abdicated responsibility to determine the equivalence to the Himachal Pradesh University. The matter has not been examined by the High Power Equivalence Committee, but the issue has been determined by the Chairman, Department of Computer Science alone. In case M.Tech. course is found to be at par with M.Phil. course in that eventuality, respondent No.3 was not required to pass NET. However, in case M.Tech. course undertaken by respondent No.3 is not equivalent to M.Phil course, in that eventuality, he was ineligible to be considered as Lecturer in Computer Science. 18. Their Lordships of Hon’ble Supreme Court in State of Rajasthan and others vs. Lata Arun, (2002) 6 Supreme Court Cases 252 have held that it is not for the Courts to determine whether a particular educational qualification possessed by a candidate should or should not be recognized as equivalent to the prescribed qualification in the case. That is not to say that such matters are not justiciable. In an appropriate case, the court can examine whether the policy decision or the administrative order dealing with the matter is based on a fair, rational and reasonable ground; whether the decision has been taken on consideration of relevant aspects of the matter; whether exercise of the power is obtained with mala fide intention; whether the decision serves the purpose of giving proper training to the candidates admitted or it is based on irrelevant and irrational considerations or intended to benefit an individual or a group of candidates. Their Lordships have held as under:- “10. The points involved in the case are two fold : one relating to prescription of minimum educational qualification for admission to the course and the other relating to recognition of the madhyama certificate issued by the Hindi Sahitya Sammelan, Allahabad as equivalent to or higher than +2 or 1st year of TDC for the purpose of admission. The points involved in the case are two fold : one relating to prescription of minimum educational qualification for admission to the course and the other relating to recognition of the madhyama certificate issued by the Hindi Sahitya Sammelan, Allahabad as equivalent to or higher than +2 or 1st year of TDC for the purpose of admission. Both these points relate to matters in the realm of policy decision to be taken by the state government and the authority vested with power under any statute. It is not for courts to determine whether a particular educational qualification possessed by a candidate should or should not be recognized as equivalent to the prescribed qualification in the case. That is not to say that such matters are not justiciable. In an appropriate case the court can examine whether the policy decision or the administrative order dealing with the matter is based on a fair. rational and reasonable ground; whether the decision has been taken on consideration of relevant aspects of the matter; whether exercise of the power is obtained with malafide intention; whether the decision serves the purpose of giving proper training to the candidates admitted or it is based on irrelevant and irrational considerations or intended to benefit an individual or a group of candidates.” 19. Their Lordships of Hon’ble Supreme Court in Sanjay Kumar Manjul vs. Chairman, UPSC and others, (2006) 8 Supreme Court Cases 42 have held that the court would normally be governed by opinion of experts. While exercising jurisdiction under Articles 226/32, High Court/Supreme Court would not ordinarily direct employer to prescribe a qualification for holding a particular post. Their Lordships have held as under:- “25. The statutory authority is entitled to frame statutory rules laying down terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned who can take ultimate decision therefor. 26. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same. 27. It is well-settled that the superior courts while exercising their jurisdiction under Articles 226 or 32 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post.” 20. Their Lordships of Hon’ble Supreme Court in Dy. 27. It is well-settled that the superior courts while exercising their jurisdiction under Articles 226 or 32 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post.” 20. Their Lordships of Hon’ble Supreme Court in Dy. Director of Public Instruction and District Recruitment Authority and others vs. Shaik Moula and another, (2006) 12 Supreme Court Cases 370 have held that whether a qualification is equivalent to another has to be specifically indicated and it cannot be decided by drawing inferences without appreciating nature of the controversy. Their Lordships have held as under:- “9. The High Court proceeded on the basis as if the Government's order dated 24/26th August, 1974 made the position clear that the qualification possessed by respondent No.1 was equivalent to TCH. There is really no such indication. Whether a particular qualification is equivalent to another has to be specifically indicated. That has not been done. Inferential conclusion, that too without appreciating the nature of the controversy, makes decisions of the Tribunal and the High Court vulnerable. They are accordingly set aside.” 21. Their Lordships of Hon’ble Supreme Court in Bihar Public Service Commission and others vs. Kamini and others, (2007) 5 Supreme Court Cases 519 have held that in the field of education, a court of law cannot act as an expert. Normally, whether or not, a student/candidate possesses requisite qualifications, should better be left to educational institutions. This is particularly so when it is supported by an Expert Committee. Their Lordships have held as under:- “8. Again, it is well settled that in the field of education, a Court of Law cannot act as an expert. Normally, therefore, whether or not a student/candidate possesses requisite qualifications should better be left to educational institutions [vide University of Mysore v. Govinda Rao, (1964) 4 SCR 576 : AIR 1965 SC 591]. This is particularly so when it is supported by an Expert Committee. The Expert Committee considered the matter and observed that a person can be said to be Honours in the subject if at the Graduate level, he/she studies such subject as the principal subject having eight papers and not a subsidiary, optional or side subject having two papers. Such a decision, in our judgment, cannot be termed arbitrary or otherwise objectionable. The Expert Committee considered the matter and observed that a person can be said to be Honours in the subject if at the Graduate level, he/she studies such subject as the principal subject having eight papers and not a subsidiary, optional or side subject having two papers. Such a decision, in our judgment, cannot be termed arbitrary or otherwise objectionable. The learned Single Judge, in our opinion, was, therefore, right in dismissing the petition relying upon the Report of the Committee and in upholding the objection of the Commission. The Division Bench was in error in ignoring the well considered report of the Expert Committee and in setting aside the decision of the learned Single Judge. The Division Bench, while allowing the appeal, observed that the 'litmus test' was the admission granted to the first respondent by the Central Institute of Fisheries Education, Mumbai. According to the Division Bench, if the first respondent did not possess Bachelor of Science Degree with Zoology, the Institute would not have admitted her to the said course. The Division Bench observed that not only the first respondent was admitted to the said course, she had passed it with "flying colours". In our opinion, the Division Bench was not right in applying 'litmus test' of admission of the first respondent by Central Institute of Fisheries Education, Mumbai. The controversy before the Court was whether the first respondent was eligible for the post of District Fisheries Officer, Class II. The correct test, therefore, was not admission by Mumbai Institution. If the requirement was of Honours in B.Sc. with Zoology and if the first respondent had cleared B.Sc. Honours with Chemistry, it could not be said that she was eligible to the post having requisite educational qualifications. By not treating her eligible, therefore, the Commission had not committed any illegality.” 22. Their Lordships of Hon’ble Supreme Court in State of Haryana and others vs. Shakuntala Devi, (2008) 15 Supreme Court Cases 380 have held that recruitment made in violation of constitutional scheme or recruitment rules is illegal and invalid. 23. Mr. D.K. Khanna, learned Advocate, has vehemently argued that once the petitioners appeared for selection and remained unsuccessful, they have no locus standi to challenge appointment of respondent No.3. 24. 23. Mr. D.K. Khanna, learned Advocate, has vehemently argued that once the petitioners appeared for selection and remained unsuccessful, they have no locus standi to challenge appointment of respondent No.3. 24. Their Lordships of Hon’ble Supreme Court in Raj Kumar and others vs. Shakti Raj and others, (1997) 9 Supreme Court Cases 527 have held that where the procedure of selection and the exercise of power to exclude the posts from the purview of the SSSB suffered from glaring illegalities, the candidate appearing for selection and remaining unsuccessful is not barred from questioning the selection. 25. The Court is not oblivious to the fact that name of respondent No.3 has also been recommended by the respondent-Commission to respondent No.1 after getting opinion from the Chairman of the Department of Computer Science of Himachal Pradesh University as reflected in Annexure R-3 dated 31.1.2011. The scope of judicial review by the Courts to determine equivalence of a particular degree/course is very limited. This job is to be done by the experts. The issue should have been decided once for all and if necessary, by making necessary amendments in the Recruitment and Promotion Rules. There is no material placed on record to establish that the Universities, like the Himachal Pradesh University, have any M.Phil. course in Computer Science. It may be for this reason that the Himachal Pradesh University, in its own wisdom, has equated the M.Tech. course with M.Phil. course as per Annexure R-4. The University has decided to treat the M.Tech. dissertation at par with M.Phil. dissertation. 26. Accordingly, in view of the observations and analysis, made hereinabove, writ petition is disposed of and respondent No.1-State, in consultation with respondent No.2-Commission, is directed to examine the matter exhaustively whether M.Tech. course is equivalent to M.Phil. course or not, by constituting a High Power Equivalence Committee, by associating experts in the field of computer science and Professors from the Himachal Pradesh University, within a period of ten weeks and also to carry out necessary amendments in the Recruitment and Promotion Rules for filling up the post of Lecturer in Computer Science on the basis of recommendations of High Power Equivalence Committee. In case, the High Power Equivalence Committee opines that the M.Tech. course undertaken by respondent No.3 is equivalent to M.Phil. course, his appointment need not be tinkered with. In case, the High Power Equivalence Committee opines that the M.Tech. course undertaken by respondent No.3 is equivalent to M.Phil. course, his appointment need not be tinkered with. However, in case the High Power Equivalence Committee ultimately comes to the conclusion that the M.Tech. course cannot be treated at par with M.Phil. course, appointment orders issued to respondent No.3 are liable to be withdrawn. Till the determination of this issue, respondent No.3 is permitted to work as Lecturer in Computer Science. Respondents No. 1 and 2 are directed to file compliance affidavit in this matter immediately after eight weeks. Pending application(s), if any, also stands disposed of. No order as to costs.