Dipin Arora vs Shivaji College & Ors
2011 Latest Caselaw 2785 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 24th May, 2011

+                         WP(C) NO.10720/2009

DIPIN ARORA                                             ..... Petitioner
                          Through:      Mr. Ashim Vachher with Mr. Rohit
                                        Nagpal, Advocates

                                     Versus

SHIVAJI COLLEGE & ORS                                     ..... Respondents
                 Through:               Mr. Anurag Mathur, Advocate for R-
                                        1&2.
                                        Mr. Amit Bansal, Advocate for R-3.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may                      NO
       be allowed to see the judgment?

2.     To be referred to the reporter or not?               NO

3.     Whether the judgment should be reported              NO
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The respondent no.1 College, affiliated to the respondent no.3

University of Delhi, on 13th May, 2008 published an advertisement inviting

applications, inter alia, for the post of Administrative Officer of the College.

The advertisement required reference to the website of the College for

detailed information about qualification / eligibility criteria for the post. It is

not in dispute that the qualification / eligibility criteria for the post of

Administrative Officer was

"Good academic record plus master's Degree with at least 55% of the marks or its equivalent Grade B in the UGC Seven point scale."

2. The petitioner in his application for the said post disclosed his

qualification as Graduation from Delhi University and Post Graduate

Diploma in Business Administration (PGDBA) from Symbiosis Centre for

Distance Learning with specialization in Marketing with 57% marks. The

petitioner was issued the Admit Card for the written test to be held for the

said post and was subsequently called for interview by the Selection

Committee constituted for the said purpose and selected for and offered the

said post on 29th December, 2008 and which was accepted by the petitioner

and the petitioner joined the employment of the respondent no.1 College as

Administrative Officer on 30th December, 2008. The appointment of the

petitioner was "subject to the approval of the Governing Body of the College

and the respondent no.3 University of Delhi". Upon approval of the

University being sought, the University vide its letter dated 16/19 th June,

2009 impugned in this petition found the appointment of the petitioner to be

"not in order" as he did not possess the Master's Degree with 55% marks.

The University accordingly asked the College to dispense with the services

of the petitioner after issuing suitable show cause notice to the petitioner.

3. Notice of the petition was issued and vide order dated 7th August,

2009 status quo regarding the service of the petitioner directed to be

maintained. Counter affidavits have been filed by the College and the

University and to which rejoinders have been filed by the petitioner. The

matter was listed last on 12th May, 2011 when adjournment was sought on

behalf of the petitioner. Finding that the petitioner, after obtaining the

interim order and under which he is continuing employment of the College

and drawing salary, the matter was directed to be posted for today. The

counsels have been heard.

4. The University in its counter affidavit has stated that the respondent

no.1 College is a constituent of the University and substantially funded to

the extent of 95% by the University Grants Commission; therefore the

minimum qualifications as prescribed by the UGC are mandatory on the

College; that the minimum qualification aforesaid prescribed for the post of

Administrative Officer is based on the directions contained in the Policy

Guidelines issued under letter dated 2nd November, 1988 of the Government

of India, Ministry of Human Resource Development, and such minimum

qualifications have also been included in the Recruitment Rules (Non

Teaching Employees), 2008 framed by the respondent University; that

PGDBA qualification of the petitioner is not equivalent to a Master's Degree

and the petitioner is thus not qualified for the post and the appointment of

the petitioner cannot be approved.

5. The College in its counter affidavit has also stated that the University

having not approved the appointment and which appointment was subject to

such approval, the petitioner has no right to continue.

6. The question which thus arises for consideration is whether the

qualification by the petitioner of PGDBA can be treated as equivalent to a

Master's Degree.

7. However, before adverting to the said question, certain other

contentions of the counsel for the petitioner may be dealt with. He has

contended that no show cause notice as directed by the University also has

been issued; that since for the higher post of Deputy Registrar (the post of

Administrative Officer is equivalent to that of Assistant Registrar) PGDBA

is a "desirable" qualification, it should be treated as equivalent to the

Master's Degree also; that his application where full disclosure of

qualification was made was scrutinized and only thereafter Admit Card was

issued to him and that his qualifications were studied into by the Selection

Committee comprising of high officials including nominees of the

University and who were satisfied of his qualification of PGDBA being

equivalent to a Master's Degree and the decision of the University now is

biased.

8. The counsel for the University has contended that the aforesaid

arguments are no longer open to the petitioner when the appointment letter

of the petitioner was subject to approval of Delhi University; it is contended

that even if there has been any oversight by the College in appointing the

petitioner, the University was entitled to correct the said error; it is further

contended that the University has appointed its nominee on the Selection

Committee only for the purposes of conducting the interview and not to

scrutinize the qualifications and the Interview Board / Selection Committee

was to only judge the performance in the interview and presumed that

whosoever had been called for the interview had the requisite qualification;

with reference to the Minutes of the Meeting of the Selection Committee it is

shown that there was no discussion whatsoever therein as to whether the

petitioner's qualification was equivalent to Master's Degree or not.

9. The counsel for the College has also contended that the petitioner has

falsely represented that no show cause notice was given to him; that a show

cause notice dated 23 rd June, 2009 was issued, to which replies dated 1st

July, 2009 and 14th September, 2009 were given by the petitioner. It is

contended that the petitioner is guilty of concealment and misrepresentation

and the writ petition is liable to be dismissed on this ground. It is further

contended that the petitioner at the time of advertisement and submission of

application etc. was working on a temporary basis as the Administrative

Officer of the College and in fact was in the said capacity processing the

various applications received and took advantage of his said position in

issuance of the Admit Card to himself leading to his selection.

10. The argument of the counsel for the petitioner of his qualification of

PGDBA being equivalent to Master's Degree for the reason of being a

desirable qualification for a higher post, is misconceived. The essential

eligibility for the post of Deputy Registrar also is of Post Graduate Degree

and in addition to the said essential qualification, a Post Graduate Diploma

in Management is mentioned as a desirable qualification. Merely because

the said qualification is mentioned as a desirable qualification for a higher

post would not mean that for the post for which the petitioner had applied

the same would substitute the "essential" qualification.

11. No merit is found in any of the aforesaid submissions of the counsel

for the petitioner. If it is found that the petitioner is not eligible or qualified

for the post, the petitioner cannot be allowed to retain the same merely

because an error has been committed in appointment of the petitioner and

which appointment being subject to approval of the University, the

University was definitely within its right to set right the said error. It is not

urged that the Selection Committee was authorized to waive the minimum

qualifications laid down in the Recruitment Rules.

12. That brings me to the core issue aforesaid as to whether the PGDBA

qualification of the petitioner is equivalent to Master's Degree or not. At the

outset it can be stated that it is neither the job of this Court nor is this Court

competent to determine whether one qualification is equivalent to the other

or not.

13. The Calendar of the University provides for an Equivalence

Committee to be constituted by the University and which is comprised of

experts, who on an analysis of the course contents, method of teaching,

method of examination etc., are to decide whether one qualification can be

treated as equivalent to the other or not. Once the University has taken a

stand that PGDBA is not equivalent to a Master's Degree, it has but to be

presumed that the said Equivalence Committee of the University does not

treat the same as equivalent. The petitioner has also not brought any

material whatsoever before this Court to show that PGDBA has anywhere

been considered as equivalent to Master's Degree. The counsel for the

University also in this regard has relied upon Basic Education Board, UP v.

Upendra Rai (2008) 3 SCC 432 laying down that grant of equivalence is an

administrative decision which is in the sole discretion of the authority

concerned and the Courts do not have expertise in such matter.

14. Even otherwise the nomenclature of the qualification of the petitioner

itself indicates the same to be a Post Graduate Diploma while the

requirement of the Rules is of a Post Graduate Degree. A Diploma can

never be equivalent to a Degree. Reference in this regard may be made to

Tirath Raj v. MCD 68 (1997) DLT 635 noticing several dicta of the Apex

Court on difference between a Degree and a Diploma. The said distinction

was reiterated in Shailendra Dania v. S.P. Dubey (2007) 5 SCC 535.

The counsel for the petitioner refers to

i. Bimla Devi v. State of Himachal Pradesh MANU/SC/0781/2010;

in this case, the Selection Board which had prescribed the

qualification for the post had itself selected the candidate and in

such circumstances and after 11 years, interference was refused.

However here, it cannot be said that Selection Committee had also

framed the recruitment rules. Moreover, approval necessary for

appointment has been refused.

ii. Tariq Islam v. Aligarh Muslim University MANU/SC/0623/2001.

The said judgment rather than helping the petitioner is against the

petitioner. It lays down that area of interference by the Courts

would be limited to whether the appointment made by the academic

body had contravened any statutory or binding rule and the Courts

should show due regard to the opinion expressed by the experts and

on whose recommendations the academic body had acted. Though

the counsel for the petitioner had on the basis of the said judgment

sought to contend that the members of the Selection Committee are

experts but they cannot be treated as experts in equivalence of

qualifications.

iii. Rameshwar Dass Mehla v. Om Prakash Saini

MANU/SC/0281/2002. The said judgment is a judgment on

rounding off and has no application to the present case.

iv. The judgment dated 20th December, 2010 of the Division Bench of

this Court in WP(C) 145/2010 titled AIIMS v. Dr. N.N. Sarkar

where weightage was given to the opinions of the experts

constituting the Selection Committee and the Court also forayed

into itself determining equivalence. However this was a case of

challenge by a contender to appointment made and not of the

appointing authority itself not finding the candidate eligible as is

the case in hand. It may also be added that the University as the

appointing authority is not bound by the recommendation of the

Selection Committee.

v. Rajbir Singh Dalal v. Chaudhari Devi Lal University, Sirsa (2008)

9 SCC 284 where owing to there being a single department of

Political Science and Public Administration, appointments made

without specifying for which department were held to be valid. The

said judgment again has no applicability to the facts of the present

case.

15. The position in law is otherwise clear. A person who does not have

the requisite qualification is not entitled to claim appointment. The

petitioner cannot claim any right from the mistake. The petitioner as per the

selection criteria was / is not eligible for appointment. The Supreme Court

in Ashok Kumar Sonkar Vs. UOI (2007) 4 SCC 54 held that where the

selection is illegal for the reason of being ineligible to be considered for

appointment, the cancellation of appointment even without affording any

opportunity of hearing is proper inasmuch as in such cases the hearing

would be a futile exercise and a Court of law does not insist on compliance

with useless formalities. Reference may also be made to Central Airmen

Selection Board Vs. Surender Kumar Das (2003) 1 SCC 152 where the

question of whether the principle of promissory estoppel can be invoked or

not in the case of a candidate not eligible for appointment being selected by

mistake contrary to the terms of the advertisement and the rules was left

open, the finding having been returned of selection being illegal owing to

being attributable to the misrepresentation by the candidate.

16. Reference may also be made to Mahatma Gandhi University Vs. Gis

Jose (2008) 17 SCC 611 where it was held in the context of admission to

educational institutions that a student even if wrongly admitted without

being eligible should not be permitted to continue and misplaced sympathy

should not be shown in total breach of rules. The Supreme Court in

Maharishi Dayanand University Vs. Surjeet Kaur JT 2010 (7) SC 179 held

that the Court has no competence to issue a direction contrary to law, nor the

Court can direct an authority to act in contravention of statutory provisions.

It was held that the High Court cannot be generous or liberal in issuing such

directions which in substance amount to directing the authorities concerned

to violate their own statutory Rules & Regulations. It was further held that

there can be no estoppel/promissory estoppel to debar a public authority

from enforcing a statutory provision. The mistake on the part of the

University in that case in allowing an applicant to appear in the examination

was held to be conferring no right in the applicant if not entitled under the

Rules & Regulations to pursue a course. It was held that the Rules &

Regulations cannot be allowed to be defeated merely because the University

erroneously allowed a candidate to appear in the examination.

17. As far as the argument of non-issuance of show cause notice is

concerned, it may also be noticed that the matter having been considered in

detail by this Court, the question of directing any further hearing to be given

does not arise.

Accordingly, there is no merit in the petition. The same is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) May 24, 2011 M.