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2022 DIGILAW 316 (UTT)

Rajeev Kumar Pandey v. State of Uttarakhand

2022-09-23

RAVINDRA MAITHANI

body2022
JUDGMENT : Ravindra Maithani, J. A common question of law arises in these petitions; therefore, they are being decided by this common judgment. 2. The petitioners are M.Sc. (Advanced Zoology) and also Bachelor of Education from Hemwati Nandan Bahuguna Garhwal University, Srinagar, District Pauri Garhwal (for short, “the University”). The respondent no.2, Uttarakhand Public Service Commission (for short, “the Commission”) issued an advertisement on 04.09.2018 inviting applications for the post of Lecturer including 71 posts of Lecturer Biology. As per advertisement, the qualification for the post was as follows:- “(i) Post Graduation Degree in Botany or Zoology from any University established by law in India. (ii) L.T. Diploma from the Government or Government recognized Training Institute/College or Degree in Bachelor of Education from any University established by law in India.” 3. Both the petitioners applied for the said post and appeared in the Entrance Examination. Both of them qualified the Written Examination. Suddenly, it is the case of the petitioners that the Commission, on 08.06.2019, issued a list of disqualified candidates and both the petitioners have been shown disqualified on the ground that they had obtained M.Sc. (Advanced Zoology). The petitioners made their representations claiming that, in fact, M.Sc. (Advanced Zoology) is a course run by the University for M.Sc. (Zoology). They are one and the same. The University certified it, but since no action was taken, hence, the petitions. 4. The petitions were taken for hearing on 25.06.2019, when this Court directed for appointment of a panel of experts on the subject to decide the controversy. The Court directed as hereunder:- “Having considered the submission of learned counsel for the parties and after going through the judgment passed by the Division Bench in the bunch of petitions, as an interim measure, it is directed that the State Government shall decide the controversy of equivalence of subject of Zoology and Advance Zoology by appointing penal of expert of the said subject. After completing of the said exercise, the said committee shall take decision in the matter at earliest, and on the basis of the expert committee decision, the State Government shall take decision, so as to end the anomaly and subject may came to the end and students who have passed their M.Sc. with Advance Zoology may not be made to suffer. The report of the committee be filed within four weeks from today. List this matter after four weeks. with Advance Zoology may not be made to suffer. The report of the committee be filed within four weeks from today. List this matter after four weeks. Meanwhile, selection, if any, is made pursuant to the interview held by the respondent the same shall be subject to the final decision of the writ petition.” 5. The Commission filed counter affidavit. According to the Commission, as per the relevant Rules, the qualifications for the post of Lecturer (Biology) is M.Sc. (Botany or Zoology) and L.T. Diploma from Government or Government recognized institution or degree college or B.Ed. degree from the University established by law. It’s the Commission case that since the petitioners do not possess the required qualifications, they were declared ineligible vide list dated 08.06.2019. 6. The State filed its counter affidavit. It is stated that the compliance of Court’s order dated 25.06.2019, a Committee was constituted and the Committee reported that the, “Syllabus of M.Sc. (Advance Zoology) and M.Sc. (Zoology) are 90% same as such M.Sc. (Advance Zoology) may be treated as equivalent to M.Sc. (Zoology)”. The report of the Commission has also been enclosed. According to the State, after report of the expert, the State Government has written to the Commission on 28.01.2020 to declare the result as per finding of the Expert Committee. 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the petitioners would submit that pursuant to this Court’s order dated 25.06.2019, the controversy has been decided by the Expert Committee, which has opined that M.Sc. (Advanced Zoology) and M.Sc. (Zoology) can be termed as equivalent and thereafter, the State has also requested to the Commission to declare the result as per Committee’s finding. Therefore, it is argued that the writ petitions may be decided accordingly, directing the Commission to proceed further in the matter of recruitment, in accordance with the communication dated 28.01.2020 of the State. 9. Learned counsel for the petitioners also relied on the judgment in the case of Writ Petition (S/B) No.583 of 2018, Rahul Saini vs. State of Uttarakhand and others and connected matters, decided by this Court on 12.02.2019. In fact, in the case of Rahul Saini (supra), the dispute was with regard to equivalence of the M.Sc. (Applied Mathematics) and M.Sc. (Mathematics). In fact, in the case of Rahul Saini (supra), the dispute was with regard to equivalence of the M.Sc. (Applied Mathematics) and M.Sc. (Mathematics). In that case also, an Expert Committee was constituted which after examining the syllabus of both the courses opined that M.Sc. (Applied Mathematics) and M.Sc. (Mathematical Science) are equivalent to M.Sc. (Mathematics). Accordingly, in that case, the Commission was directed to declare the result. 10. On the other hand, learned State counsel would submit that the Rules of the game cannot be changed in the midway. The Court cannot decide equivalency. The petitioners were not qualified as per the Rules. 11. Learned counsel for the Commission would submit that yet interview has not been conducted and based on report of the Expert Committee, the State Government, by its letter dated 28.01.2020, has directed the Commission to declare the result, which cannot be done. Even if the matter is to be proceeded further, first and foremost interview will have to be conducted. 12. Undoubtedly, the Rules of the game cannot be changed in the midway. In fact, earlier also in Writ Petition No.905 of 2006 (S/S), Devendra Kumar Mishra and another vs. State and others, a controversy with regard to equivalency between M.Sc. (Plant Science) and M.Sc. (Botany) was raised. In that case also, a report was given to the Court that the course and contents of M.Sc. (Plant Science) are equivalent to M.Sc. (Botany). But, the Court in that case had observed that, “close scrutiny of this letter shows that Association of Indian Universities has not on its part declared whether M.Sc. Plant Science is really equivalent to the degree of M.Sc. Botany. It has not even discussed what subject are taught in M.Sc. Plant Science, which are common or different to the subjects taught in the M.Sc. Botany.”. Apart from it, the Court while dismissing the writ petition in the case of Devendra Kumar Mishra (supra) observed, “that the Commission is bound by the qualifications mentioned in the relevant Rules.” 13. In the case of Ajith K. and others vs. Aneesh K.S. and others (2019)17 SCC 147 , some candidates, who had different qualifications, applied for a post and when objected to, an argument was raised that the candidates had higher qualifications than the qualification for the post. In the case of Ajith K. and others vs. Aneesh K.S. and others (2019)17 SCC 147 , some candidates, who had different qualifications, applied for a post and when objected to, an argument was raised that the candidates had higher qualifications than the qualification for the post. But, it was not accepted by the Hon’ble Supreme Court observing that, “there was no determination of equivalence of qualifications by any executive or standing order of the State Government. Nor was there any finding that a DHIC presuppose acquisition of lower qualification. KPSC has not carried out any exercise as required by the provisions of the rule.” 14. In the case of Anand Yadav and others vs. State of Uttar Pradesh and others, AIR 2020 SC 5383 , a question of equivalency arose between M.A. (Education) and M.Ed. Before last date of submission of the application form, a corrigendum was issued clarifying that both the courses are equivalent. It was so done, on the basis of Expert Committee report. In that case, the Hon’ble Supreme Court observed that, “it is neither for the contesting party, i.e., respondent No.3, nor for this Court to sit as a court of appeal over the decision of the experts.”. 15. The facts remain, in the case of Anand Yadav (supra), the corrigendum was issued when still there was time to file application forms. 16. In the case of Sridip Chatterjee vs. Gopa Chakraborty and others, (2019)15 SCC 59 , for a particular post, the essential qualification was Masters in Yoga/Yoga Therapy, Masters in Physical Education with Post Graduate Diploma in Yoga/Yoga Therapy with at least 55% marks. A candidate had Diploma in Yoga Education, he was appointed. Challenge was made in the High Court. The High Court set aside the appointment. When the matter reached in the Hon’ble Supreme Court, it was argued that it was not permissible for the Selection Committee to change the selection criteria midway. Since, the eligibility condition was not met by a particular candidate, he could not have been appointed, treating him equivalent to the essential qualifications. The Hon’ble Supreme Court observed that, “it is not change of the Rules or eligibility criteria midway, it is a question of meeting the eligibility condition of the advertisement which the expert committee has decided.” The Hon’ble Supreme Court allowed the appeal and upheld the appointment. The Hon’ble Supreme Court observed that, “it is not change of the Rules or eligibility criteria midway, it is a question of meeting the eligibility condition of the advertisement which the expert committee has decided.” The Hon’ble Supreme Court allowed the appeal and upheld the appointment. In para 15, the Hon’ble Supreme Court observed as hereunder:- “15. On the other hand, the judgments referred to by the learned counsel for the respondents are in respect of change of eligibility criteria midway of the selection process. Such is not the fact in the present case. The qualification prescribed in the advertisement remains the same i.e. postgraduate diploma in Yoga or Yoga Therapy. It is only diploma in Yoga Education which has been considered as equivalent to diploma in Yoga or Yoga Therapy. Not only the Selection Committee has found the appellant suitable but even the Equivalence Committee, constituted in terms of the directions of the learned Single Bench, also found the diploma of the appellant as the one satisfying the requirement of the advertisement. Therefore, once the experts have taken a decision that the appellant meets the eligibility conditions of the advertisement, the Court could not have interfered with and set aside the appointment of the appellant.” 17. In the instant case, this Court, as stated, on 25.06.2019, had directed the State Government to decide the controversy of equivalence by appointing a panel of experts. The panel of experts has given a report that M.Sc. (Advanced Zoology) is equivalent to M.Sc. (Zoology). Pursuant to it, the State Government had already written to the Commission to proceed in the matter. It is not a case of changing the eligibility criteria in the midway. In view of the judgment in the case of Sridip Chatterjee (supra), it is, in fact, determining the eligibility condition of the advertisement, which the Expert Committee has determined and the State has accepted. State is the employer. Qualifications have not been changed. 18. In view of the foregoing discussion, this Court is of the view that the petitions deserve to be allowed and the Commission may be directed to proceed further in the matter treating both the petitioners eligible for the post. 19. Both the petitions are allowed. The petitioners are held eligible to be considered for selection/appointment to the post of Lecturer (Biology). The Commission is directed to proceed further in the matter.