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2024 DIGILAW 1782 (GUJ)

Parimal Manubhai Patel v. State Of Gujarat

2024-08-29

VAIBHAVI D.NANAVATI

body2024
ORDER : Vaibhavi D. Nanavati, J. 1. Heard Mr. Nilesh I. Jani, learned advocate appearing for the petitioner, Mr. Chaitanya S. Joshi, learned advocate appearing for the respondent no.2 and Ms. Pooja Ashar, learned Assistant Government Pleader appearing for the respondent No.1- State. 2. By way of the present Petition, petitioner herein has challenged the action of the respondent no.2, whereby, the petitioner’s right to appear before the Interview Committee, though having secured requisite marks in written examination, has been deprived. The print-out of the said result taken from the website of the respondent no.2 is duly produced at Annexure- A and the petitioner herein has prayed for the following reliefs: “(A) Be pleased to allow this petition. (B) Be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ, order or direction directing the respondent to allow the petitioner in the interview for the post of Assistant Professor- Botany (Class-II) as the petitioner is having requisite qualification. (C) Be pleased to direct the respondents to consider that the Bio Science-Plant Science is equivalent to the Botany as per the certificate issued by the South Gujarat University. (D) Pending admission and final hearing of this petition, the petitioner may be allowed to appear in the interview for the post of Assistant Professor- Botany (Class-II) and result of which may be reserved till final outcome of this petition. (E) Be pleased to grant any other and further relief as the facts and circumstances of this case, in the interest of justice.” 3. Brief facts leading to the filing of the present petition reads thus: 3.1. The petitioner herein is a Ph.D. and Post Graduate (M.Sc.)with Bio-Science (Plantation), who had applied for the post of Assistant Professor (Botany) in science college at Bhathana (Vesu), Surat, pursuant to the advertisement issued by the respondent no.2, being advertisement No. 86/2016-17 for the recruitment of Assistant Professor, Gujarat Education Service, Class-II of various subjects, in Government Arts, Commerce and Science college. 3.2. 3.2. The petitioner herein was allowed to appear in the written examination, wherein, upon the result being declared on the website, it was stated that the roll number of the petitioner was 101000055 and had secured passing standard but the requirements of the advertisement was not satisfied, more particularly, the petitioner was not educationally qualified, fior for which, reliance is placed on the order dated 03.05.2016 passed by the Court in Special Civil Application No. 9773 of 2015. In view of the aforesaid, the petitioner was not qualified for the interview. 4.1. Mr. Nilesh Jani, learned advocate appearing for the petitioner placed reliance on the certificate of equivalence issued by the Veer Narmad South Gujarat University, which is duly produced at Annexure-B, wherein, it was certified by the Head, Department of Bio-sciences, Veer Narmad South Gujarat University, Surat, on 09.01.2018 that the petitioner’s specialization in M.Sc. Bio-science (Plant Science) is equivalent to Botany. 4.2. Mr. Jani, learned advocate placing reliance on the aforesaid Certificate dated 09.01.2018 submits that in light of the aforesaid certified issued by the Head, Department of Bio- sciences, Veer Narmad South Gujarat University, Surat, petitioner’s degree in M.Sc. Bio-science which is equivalent to Botany, the petitioner is required to be considered as eligible for the post of Assistant Professor in Botany, pursuant to the advertisement as referred above. 4.3. Mr. Jani, learned advocate, during the course of hearing, has placed reliance on the communication issued by the respondent – State dated 05.02.2020, wherein, by the said communication in para-3 it is stated that, in case of one Dr. Milvi Vyas, the equivalence of degree has been considered by the respondent. 4.4. Placing reliance on the aforesaid, it is submitted that in an identical case, the respondent – State has issued the aforesaid communication treating the subject of Bio-science as equivalent to Botany. 4.5. Placing reliance on the aforesaid submissions, it is submitted that the prayers as prayed for in the present petition may kindly be allowed. 5.1. Per contra, Mr. 4.4. Placing reliance on the aforesaid, it is submitted that in an identical case, the respondent – State has issued the aforesaid communication treating the subject of Bio-science as equivalent to Botany. 4.5. Placing reliance on the aforesaid submissions, it is submitted that the prayers as prayed for in the present petition may kindly be allowed. 5.1. Per contra, Mr. Chaitanya S. Joshi, learned advocate appearing for the respondent no.2 placed reliance on the affidavit in reply filed by the respondent no.2, which is duly produced at page-84 and placing reliance on the same has submitted that the said advertisement No. 86/2016-17 was issued by the respondent – Commission, in the year 2016 for the appointment on the post of Assistant Professor in Government Arts, Science and Commerce College, GES, Class-II, wherein, the petitioner’s application was received for the post of Assistant Professor in Botany. It is submitted that, the respondent no.2 – Commission had sent a call letter to the petitioner, had carried-out the preliminary test and thereafter, the list of candidates, who had cleared the preliminary test, was published, wherein, the petitioner having Roll No. 101000055, had cleared the said examination. Though, the petitioner cleared the preliminary test, the petitioner did not possess the requisite Master Degree in the relevant subject of Botany, and therefore, the petitioner was held to be ineligible and was not called for the interview. 5.2. Mr. Joshi, learned advocate placed reliance on Para-5 of the affidavit in reply, wherein, it is stated that the petitioner has a Bachelor in Science (B.Sc.), Master in Science (M.Sc.) and Doctor of Philoshy (Ph.D) in Bio-Science (Plant Science), whereas, the advertisement stipulates the Master Degree in Botany. The petitioner clearly does not possess the qualification for the post advertised. It is submitted that, as per the Recruitment Rules, being ‘The Government Arts, Science and Commerce Colleges in Gujarat Educational Service, Class-II, Recruitment Rules, 2011, dated 19.03.2011, as produced at page-92 which are framed in exercise of the powers conferred by Article-309 of the Constitution of India by the respondent – State, the same are legislative in nature. It is submitted that the Recruitment Rule- 3(b) categorically provides that the candidate must possess a Master Degree in the relevant subject. 5.3. It is submitted that the Recruitment Rule- 3(b) categorically provides that the candidate must possess a Master Degree in the relevant subject. 5.3. It is submitted that the subject of Botany is substantially different from the subject of Bio-Science and that, this is evident from the fact that even at the level of educational institution, there are different departments for both. Every University usually has a separate department for these aforesaid subjects. It is submitted that, even in Veer Narmad South Gujarat University, from where the petitioner has done his masters, there are different courses of M.Sc. in Botany and M.Sc. in Bio-science. It is submitted that the petitioner herein has relied upon a certificate dated 11.02.2017 addressed by the Head of Department of Bio-science of Veer Narmad South Gujarat University, whereby it is certified that the course of M.Sc. in Bio-Science is a multi- disciplinary / inter disciplinary subject, in which the subject of Botany is included. It is submitted that, as there is no dispute with regard to the aforesaid, the study of the said subject would definitely include the portions of the subject of Botany, yet the M.Sc. in Bio-Science is not the same as M.Sc. in Botany. It is submitted that, as the advertisement is unambiguous about the qualification being M.Sc. in Botany, no other educational qualification can be accepted and therefore, there cannot be any question of equivalence of the subjects. Mr. Joshi, learned advocate, has placed reliance on Annexure-R-2, wherein, the excerpt of website containing the list of courses offered by Veer Narmad South Gujarat University is stated. 5.4. Mr. Joshi, learned advocate has placed reliance on the judgment dated 03.05.2016 passed in Special Civil Application No. 9773 of 2015, wherein, reliance is placed on the ratio laid down by the Hon’ble Apex Court in the case of Bihar Public Service Commission v/s. Kamini & Ors. reported in (2007) 5 SCC 519 , wherein, it was held that the candidate must have completed his / her Under Graduation and Post-Graduation in the same subject and further that such a requirement, while making appointments of Professors, is necessary to ensure that the quality of education is maintained. reported in (2007) 5 SCC 519 , wherein, it was held that the candidate must have completed his / her Under Graduation and Post-Graduation in the same subject and further that such a requirement, while making appointments of Professors, is necessary to ensure that the quality of education is maintained. In the facts of the present case, the petitioner has completed his Under-Graduation and Post- Graduation in the subject of Bio-science, whereas, the advertisement is for the post of Assistant Professor in Botany subject and in view thereof the candidature of petitioner is rightly rejected, in light of the aforesaid ratio as laid down in Special Civil Application No. 9773 of 2015 dated 03.05.2016. It is submitted that, if the petitioner was to be appointed to the post of Assistant Professor of Botany, than under such circumstances, in depth knowledge of the said subject of Botany is required. The petitioner is required to discharge his duties and teach students, who are pursuing the subject of Botany. Admittedly, the petitioner is not holding the master degree in the said subject and the aforesaid would amount to compromising with the quality of higher education. Since the petitioner is holding the master degree in Bio-science, and thereafter, has done his Ph.D. in Bio-science, the petitioner would be a fit candidate for the post of Assistant Professor of Bio-science, which may be advertised in future. 5.5. It is submitted by Mr. Joshi, learned advocate, that the subject of Bio-Science cannot be said to be equivalent to Botany. It is submitted that the expression ‘relevant’ has to be construed to mean the specific subject, for which the post is advertised. 5.6. Placing reliance on Para-11 of the affidavit in reply, it is submitted that the respondent – Commission has categorically stated that not a single applicant who is having Master in Bio-Science has been included in the list of candidates called for interview, and therefore, the assertion of the petitioner that he has been not given a fair opportunity, is base-less and not true. 5.7. Placing reliance on the aforesaid submissions, it is submitted that the interviews for the said advertisement for the year 2016-2017 is already undertaken by the respondent no.2 and the appointments are also already given. 5.8. Upon instructions, Mr. 5.7. Placing reliance on the aforesaid submissions, it is submitted that the interviews for the said advertisement for the year 2016-2017 is already undertaken by the respondent no.2 and the appointments are also already given. 5.8. Upon instructions, Mr. Joshi, learned advocate submitted that the petitioner herein also appeared for the interviews, for the recruitment process, which were undertaken twice thereafter, however, petitioner herein has not succeeded, for the appointment to the said post. 5.9. It is submitted that in an identical matter, the Hon’ble Court had considered the advertisement issued by the respondent no.2 for the recruitment to the said post of Assistant Professor, Gujarat Educational Services, Class-II for the subject of Zoology. In the said subejct, the petitioner in the said petition was a graduate in Microbiology, having completed his Post- Graduation in M.Sc. and Ph.D. in Aquatic Biology. In the said petition, the petitioner was seeking equivalence for the subject of Zoology. Placing reliance on the aforesaid, it is submitted that while considering an identical issue in question, it was held that in the matter relating to equivalence, they are mainly within the domain of experts and the Court usually would not interfere in such decision, which is taken by the expert and the expert employer would be the best judge. 5.10. Placing reliance on the aforesaid submissions as referred above, it is submitted that the present Petition is devoid of merits and the same may kindly be dismissed. 6. Ms. Pooja Ashar, learned Assistant Government Pleader appearing for the respondent-State submitted that the Recruitment Rules dated 19.03.2011 are required to be followed scrupulously, wherein, the advertisement being No. 86/2016-2017 for the post of Assistant Professor (Botany) has been issued by the respondent no.2, in line with the said Recruitment Rules, which are duly produced at Page-92. 7.1. Having heard the learned advocates appearing for the respective parties it emerges that the petitioner herein is possessing the qualification of Bachelor of Science (B.Sc.) (Bio- Science), Masters in Science (M.Sc.) (Bio-Science) and Doctor of Philosophy (Ph.D.) ((Bio-Science) (Plant Science). The petitioner herein applied for the post of Assistant Professor, pursuant to the advertisement issued by the respondent no.2 for the post of Assistant Professor (Botany) being advertisement No. 86/2016- 2017. The petitioner herein applied for the said post. The petitioner cleared the preliminary test and was issued the roll No.101000055. The petitioner herein applied for the post of Assistant Professor, pursuant to the advertisement issued by the respondent no.2 for the post of Assistant Professor (Botany) being advertisement No. 86/2016- 2017. The petitioner herein applied for the said post. The petitioner cleared the preliminary test and was issued the roll No.101000055. The petitioner did not possess the Master in Botany and in view thereof was held to be ineligible, and therefore, was not called for the interview. 7.2. In view of the aforesaid undisputed facts, the petitioner herein has filed the present petition for the reliefs as stated herein-above. It is the case of the petitioner that the certificate issued by the respondent University be considered for consideration of the case of the petitioner for equivalence, wherein, the Head of the Department of the University had certified that the petitioner’s Post Graduation, i.e. M.Sc. Bio- science (Plant Science) is equivalent to Botany. The respondent no.2 authority has placed reliance on the list of subjects offered by the University, wherein, the said University offered separate courses in the Master of Science, i.e. Bio-science (Animal / Plant / Microbial) and Master of Science (Botany), which is duly produced at Page-102. 7.3. It is also the case of the respondent no.2 that Botany and Bio-science are substantially different subjects. Even if the petitioner were to be appointed as Assistant Professor (Botany), the petitioner is not possessing the Master in Botany and in view thereof, the petitioner would not have that expertise of M.Sc. in Botany. Undisputedly, the petitioner is possessing the qualification of M.Sc. in Bio-science, Ph.D. in Bio-Science (Plant Science). While the petitioner cleared the preliminary examination, considering the fact that the petitioner did not possess the master degree in relevant subject, the petitioner was held to be ineligible and was not called for the interview. 7.4. Upon perusal of the result which is duly produced at Annexure-A, Pg.10, which was placed on the website of the respondent no.2 dated 04.01.2018 in clause-3 of the said result, petitioner’s roll no. 101000055, wherein, the list of the ineligible candidates were duly produced at page-12, wherein, in clause-9, petitioner was held to be ineligible relying upon the ratio as laid down by this Court in Special Civil Application No. 9773 of 2015 vide order dated 03.05.2016, wherein, petitioner’s candidature was held to be ineligible. 7.5. 101000055, wherein, the list of the ineligible candidates were duly produced at page-12, wherein, in clause-9, petitioner was held to be ineligible relying upon the ratio as laid down by this Court in Special Civil Application No. 9773 of 2015 vide order dated 03.05.2016, wherein, petitioner’s candidature was held to be ineligible. 7.5. It is apposite to refer to the order passed by the Court in Special Civil Application No. 9773 of 2015 vide order dated 03.05.2016, wherein relevant paras-64, 65 and 73 of the said order reads thus: “64. The object behind insisting that the subject should be same at the Under Graduate and Post Graduate level has some nexus with the object sought to be achieved. It has a rational nexus to the object sought to be achieved, and hence, there is no violation of the principles of equality enunciated under Article 14 of the Constitution. At the cost of repetition, once the experts in the field say so, then the Court should be loath in disturbing such opinion unless the Court finds the opinion to be absolutely perverse or unreasonable. 65. At the cost of repetition, I state that the standards of education as prescribed by the University Grants Commission has not been compromised in any manner. It is not the case in hand wherein a legislation made by the State Government on the qualifications of the Adhyapak Sahayaks is in conflict with the prescription regarding such qualifications prescribed by the University Grants Commission, and if there is any conflict, then definitely the regulations of the University Grants Commission would prevail. The Article 25 of the Concurrent List and the Entry 66 of the Union List has nothing to do so far as the case in hand is concerned. 73. In the case in hand, the office of the Commissioner having regard to the grievances raised by the candidates had to constitute a committee of experts for its opinion and on receipt of the report, it though fit to take a decision that the degree at the UG level and PG level should be same, because a candidate, who would be appointed, would be teaching even at the UG level, and if the subject he would be teaching at the UG level was not his principal subject, then that would amount to compromising with the quality of higher education. In fact, for taking such a decision, power under Article 162 need not be exercised. Therefore, the insistence on the part of the petitioners that there should be an order or a Government Resolution under Article 162 of the Constitution of India, is not tenable in law.” 7.6. In the opinion of this Court, it is apposite to refer to the order passed in Special Civil Application No. 5660 of 2018, wherein, in an identical case, as referred above, the Court was considering the equivalence of degree, where the advertisement was issued for the Master degree in Zoology and the petitioner in the said petition was possessing the post-graduation degree in Aquatic Biology. Considering the issue, following order came to be passed on 27.09.2019, wherein, relevant paras of the said judgment reads thus: “4.2 The case of the petitioner about equivalence of the Degree was negatived by contending that the advertisement required Masters Degree in Zoology. It was submitted that though various branches of Life Science may have certain overlapping topics, what was needed was specialisation in the Masters Degree. It was contended that the subject of Zoology was substantially different from the subject of Aquatic Biology in which the petitioner had passed his post graduation. It was submitted that the University offered masters course in the specific subject of Zoology which was the requirement under the Rules and since the same was not fulfilled by the petitioner, his candidature was rightly rejected. 5. The recruitment was governed by the Rules known as the Assistant Professor in the Government Arts, Science and Commerce Colleges in Gujarat Educational Services, Class-II, Recruitment Rules, 2011. Rule 3(b) of the Rules provides specifically that the candidate must possess the Masters Degree in the relevant subject. Prescription of qualification was mentioned in the advertisement based on the said Rules and it was stated that the candidates must possess the Masters Degree in the subject concerned. For the petitioner, the concerned subject was to be the Zoology since he applied to the post of Assistant Professor, Zoology. 5.1 Recalling the qualification held by the petitioner, he was B.Sc. with Microbiology. He acquired Masters in Science in the subject of Aquatic Biology. Thereafter the petitioner got Doctorate of Philosophy also in Aquatic Biology. For the petitioner, the concerned subject was to be the Zoology since he applied to the post of Assistant Professor, Zoology. 5.1 Recalling the qualification held by the petitioner, he was B.Sc. with Microbiology. He acquired Masters in Science in the subject of Aquatic Biology. Thereafter the petitioner got Doctorate of Philosophy also in Aquatic Biology. The petitioner thus did not have the qualification of Zoology at the post- graduation level which was the qualification required for the post for which the petitioner aspired. The aforesaid Rules were statutory Rules and could not have been overlooked. As the petitioner did not fulfill the requirements under the Rules, his candidature was rightly rejected. The petition deserves to be dismissed on this ground alone. 6. Adverting to the aspect whether the qualification held by the petitioner was equivalent to what was required, in the first blush itself, it could be seen that the subject of the petitioner at the post-graduation level was Aquatic Biology, quite different than the Zoology. The question of equation of degree and whether a particular degree is to be treated as equivalent to other, is an expert field. It is well settled position of law that the Court would not delve into the aspect of equivalence of a degree or qualification. In Basic Education Board, U.P. v. Upendra Rai [ (2008) 3 SCC 432 ], the Supreme Court observed that such questions are in the realm of policy decision. It was held that the grant or revocation of an equivalence is administrative jurisdiction which stands under the sole discretion of the authority concerned. 6.1 The principle was reiterated in Guru Nanak Dev University v. Sanjay Kumar Katwal [(2009) 1 SCC 60] wherein it was observed that the equivalence is a technical and academic matter which cannot be implied or assumed. It was further observed that any decision of the academic body or university relating to equivalence should be by a specific order or resolution duly published. If an authority or university did not wish to treat a particular course, in that case, the correspondence course and distant education course, as being the same, it was a matter of policy wherein the courts would not interfere. The policy relating to the aspect of equivalence was an academic matter, it was stated. If an authority or university did not wish to treat a particular course, in that case, the correspondence course and distant education course, as being the same, it was a matter of policy wherein the courts would not interfere. The policy relating to the aspect of equivalence was an academic matter, it was stated. 6.2 In Rajendra Prasad Mathus v. Karnataka University [ AIR 1986 SC 1448 ] the Apex Court observed that it is for the 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. It was observed that the University is best fitted to decide whether a particular examination or degree was equivalent to other. 6.3 In Shivangi Sanatkumar Pota v. State of Gujarat being Special Civil Application No.4698 of 2018 decided as per judgment dated 30th April, 2019, the question was whether the Degree of M.A. (Sociology) possessed by the petitioner was equivalent to the requirement of Masters Degree in Social Work or Labour Welfare prescribed for the post of Assistant Labour Commissioner, Class-I. This Court considered the law on the question emanating from different decisions of the Apex Court to observe and hold thus, “6. The question of equivalence is to be addressed and is to be decided in respect of each post independently, as every post would have its own nature of duties attached to it and would have carried the functional specialities. A particular qualification may be the good qualification for one post, but it may not be so for another post. The question of equivalence is a customized question to be decided accordingly qua each case. Also that because the Public Service Commission in one State treats the degree as equivalent, is also no ground to contend that the Service Commission in other State should follow the same. It is ordinarily for each authority to decide the question whether a qualification or degree is to be applied as equivalent.” 6.4 In Himanshu Baldevbhai Gohil v. Chief Human Resource Manager, O.N.G.C. being Special Civil Application No.4469 of 2019 decided on 24th June, 2019, the required qualification for the post of Assistant Technician (Production) was Diploma in Chemical/Mechanical/Petroleum Engineering. The petitioner possessed Diploma in Petrochemical Technology and claimed that his degree was equivalent. The petitioner possessed Diploma in Petrochemical Technology and claimed that his degree was equivalent. The Court considered the aforesaid decisions and dismissed the petition. 6.5 The principles relating to the determination of equivalence and the non-interference in such matters by the court are the principles not only true for the field of education, but also to be equally applied in the arena of service law. The basic aspect remains the same that questions of these nature are academic questions involving expert academic exercise. It is not the sphere of the court but the domain of the employer as to whether a particular degree is equivalent or suitable to the post. If the employer viewed a particular degree not to be acceptable for the post as not equivalent, the court would not sit in appeal over such decision when the decision is reasonable and not perverse. The expert employer could be said to be the best judge. 7. In view of the foregoing reasons and discussion, this petition does not book any relief or the petitioner and it stands meritless. The same is hereby dismissed. Notice is discharged.” 7.7. It is also relevant to deal with the communication referred to by the learned advocate appearing for the petitioner dated 05.02.2020, upon which the reliance is placed. Upon perusal of the said communication, it appears that one Dr. Milvi Vyas was possessing B.Sc. in Bio-science and M.Sc. and Ph.D. in Botany subject and in view thereof the respondent – State communicated to the respondent no.2 that in the said case the qualification at Post-Graduation level was required to be considered, wherein, the said candidate possessed the degree of M.Sc. and Ph.D. in Botany subject for the post of Assistant Professor (Botany). 7.8. The aforesaid would not apply to the facts of the present case, wherein, the petitioner herein is holding a graduation, post-graduation and Ph.D. degree in the subject of Bio-science. Further, the certificate which is dated 09.01.2018 produced on record at page-15, would not create indefeasible right in favour of the present petitioner, in view of the fact that the respondent no.2 opines that the degree in Bio-science is not equivalent to Botany. 7.9. Further, the certificate which is dated 09.01.2018 produced on record at page-15, would not create indefeasible right in favour of the present petitioner, in view of the fact that the respondent no.2 opines that the degree in Bio-science is not equivalent to Botany. 7.9. Considering the facts of the present case as referred above as well as the position of law, as referred above, the petitioner is disqualified for want of equivalent degree, though, it is certified by the Head of the Department of Veer Narmad South Gujarat University, the respondent no.2 categorically states that the aforesaid degree held by the petitioner in M.Sc. Bio-science (Plant Science) cannot be said to be equivalent to the degree of M.Sc. (Botany). Even if the petitioner would be appointed as Assistant Professor (Botany), the petitioner cannot be given the responsibilities associated with the said subject in which the petitioner has not undergone the master’s course and the same would amount for compromising with the quality of higher education. 8. This Court is not an expert and not inclined to sit in appeal, over the decision of an expert body, i.e. the respondent no.2 herein. It is within the domain of experts in the field of education to decide and to take a final call, in the matter of equivalence of degree. The principles relating to the determination of equivalence and non-interference in such matters by the Court are the principles not only true for the field of education, but also to be equally applied in the arena of service law. The basic aspect remains the same that questions of these nature are academic questions involving expert academic exercise. It is not the sphere of the court but the domain of the employer as to whether a particular degree is equivalent or suitable to the post. If the employer viewed a particular degree not to be acceptable for the post as not equivalent, the court would not sit in appeal over such decision. The expert employer could be said to be the best judge. 9. In light of the aforesaid, no case is made out to exercise the extraordinary jurisdiction under Article-226 of the Constitution of India and the present petition stands dismissed accordingly. Notice is discharged.