Rasikh Barkat vs Ut Of Jammu And Kashmir And Others
2023 Latest Caselaw 48 j&K/2

                                       5




      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR
                                   WP(C ) 2655/2021

                                                     Reserved on : 22.12.2022
                                                     Pronounced on: 04 .02.2023

Rasikh Barkat
                                                                .....petitioner(s)

                           Through :- Mr. A.H.Naik Sr. Advocate with
                                      Mr. Zia, Advocate.
                                      Mr. Bakhat Parvaiz Advocate


                V/s

UT of Jammu and Kashmir and others                    .....Respondent(s)
                     Through :- Mr. Shah Amir Advocate.
                                 Mr. Jahangir Iqbal Ganai Sr. Advocate
                                 with Ms. Ruqaya Sidique Advocate
                                 Ms. Asifa Padroo AAG.
                                 Mr. F.A.Natnoo Advocate

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

                           JUDGMENT

Sanjeev Kumar, J.

1 Pursuant to an indent/request received from the Department of

Higher Education, Government of UT of Jammu and Kashmir, the Jammu

and Kashmir Public Service Commission [„the PSC‟] vide its Notification

No.10-PSC (DR-P) of 2017 dated 27.10.2017 invited applications, inter

alia, for ten (10) posts of Assistant Professor (Geology) which included

five (5) posts in the open merit. As per the said Notification, the eligibility

prescribed was as under:

(a). Good academic record as defined by the concerned University with at least with 55% marks (50% excluding any grace marks, in case of scheduled Caste/Scheduled Tribe/Differently-abled (physically and visually differently abled) Categories/Ph.D degree holders, who have obtained their Master‟s Degree prior to 19th September 1999) or an

equivalent grade in a point scale where grading system is followed at the Master's Degree level in the relevant subject form an Indian Unviersity, or an equivalent degrreem form an accredited foreign Univeristy;

,,,,,,,,,,,,,,

(b). The candidate must have cleared NET/SLET/SET Conducted by the UGC, CSIR/AIU;

(c). The candidate who are, or have been awarded a Ph.D Degree in accordance with the University Grants Commissioner (minimum standards and procedure for Award of Ph.D degree regulations), 2009 shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET, and;

(d) NET/SLET/SET shall also not be required for such Master‟s Programmes in disciplines for which NET/SLET/SET is not conducted.

2 The petitioner, being possessed of, amongst others, Master‟s

Degree in „Applied Geology‟ also applied for the post in question.

However, the PSC, on scrutiny, found the petitioner not eligible for the

post and, accordingly vide notice dated 26.03.2019 rejected candidature of

the petitioner. It is this Notification issued by the PSC which was subject

matter of challenge before the Central Administrative Tribunal Jammu

Bench [„CAT‟] in TA No. 62/2119/2020.

3 The case of the writ petitioner, as set up before the CAT was

that he possessed Master‟s Degree in Applied Geology which, as per the

communication dated 19.12.2017 addressed by the Under Secretary to the

Government, Higher Education Department, to the PSC, was a

qualification equivalent to M.Sc. Geology and, therefore, the petitioner‟s

candidature could not have been rejected on the ground that he did not

possess Post Graduate Degree in the „relevant subject‟ for being appointed

as Assistant Professor (Geology). The petitioner also placed reliance upon

the expert opinion tendered in this regard by the University of Jammu and

University of Kashmir.

4 The application of the petitioner was contested by respondents

No. 1 to 3 by submitting that M.Sc. in Applied Geology was not the same

qualification as M.Sc. in Geology and, therefore, the PSC was correct in

rejecting the candidature of the petitioner on the ground of his ineligibility

to apply for the post in question.

5 The CAT, after considering the rival contentions and vide its

judgment dated 07.12.2021, impugned in this petition, approved the view

taken by the PSC with regard to the ineligibility of the petitioner. The CAT

held that it was the prerogative of the user Department to stipulate the

qualifications for the post in its establishment and once the qualifications

prescribed in the advertisement were treated as essential, there was no way

to ignore them. Relying upon the judgments of the Supreme Court rendered

in the cases of Zahoor Ahmad Rather vs. Sheikh Imtiyaz Ahmad (2019)

2 SCC 404 and Zonal Manager, Bank of India, Zonal Office Kochi vs.

Aarya K. Babu, (2019) 8 SCC 587, the CAT came to the conclusion that

it was the prerogative of the concerned Department to prescribe the

qualification for the post and the Courts cannot enter the arena of finding

out the equivalence, more so, when the Recruitment Rules prescribing

qualification did not stipulate any equivalent qualification. The CAT also

held that in case the condition of eligibility as prescribed in the

Advertisement Notification is relaxed in favour of the petitioner, it would

lead to an anomaly namely the relaxation would be only in respect of the

petitioner and, in this way, the persons similarly situated with the petitioner

would be seriously prejudiced. This would call for the entire exercise to be

done afresh and such disastrous consequences, which are in flagrant

violation of the statutory requirement, ought to be avoided. In a nutshell,

the petitioner, who was possessing the qualification of M.Sc. in Applied

Geology, instead of Master Degree in Geology, was found ineligible and,

therefore, the application challenging the impugned Notification of the

PSC rejecting the candidature of the writ petitioner was dismissed vide

judgment impugned. It is this judgment which is called in question in this

writ petitiion filed by the petitioner under Article 226 of the Constitution.

6 Having heard learned counsel for the parties and perused the

material on record, we find the impugned notice dated 26.03.2019 issued

by the PSC, which was subject matter of challenge before the CAT, is not

sustainable in law. The petitioner, who admittedly possesses the

qualification of Post Graduate Degree in Applied Geology, has been

erroneously and arbitrarily declared ineligible for being appointed as

Assistant Professor in Geology in Higher Education Department.

7 It is true that it is the prerogative of the employer to prescribe

the essential qualification and conditions of eligibility for appointment to a

post borne on its establishment and the Courts are not the Authority

competent to add to or subtract from the qualification so prescribed. It is

equally indisputable that the Selection Body, which is enjoined to make

the selection of eligible candidates, is bound to make recruitment of the

candidates strictly in terms of the qualification and conditions of eligibility

prescribed by the employer to participate in the selection process.

8 In the instant case, the qualification prescribed for the post in

question is, amongst others, „Master's Degree level in the relevant

subject from an Indian University, or an equivalent Degree from an

accredited foreign University.‟ A candidate, to be eligible to be appointed

as Assistant Professor must possess, inter alia, Post Graduate Degree in the

relevant subject. The Degree equivalent to Post Graduation in relevant

subject from an Indian University, is provided only in respect of a Degree

of the same level obtained by a candidate from an accredited foreign

University. We, in this case, are not confronted with a Degree obtained by

a candidate from an accredited foreign University which is claimed to be

equivalent to Master Degree in the relevant subject. The claim of the

petitioner is that M.Sc. in „Applied Geology‟ is equivalent and same as

„Master Degree in Geology‟ is and, therefore, it cannot be said that the

petitioner does not possess Master Degree in the relevant subject from an

Indian University.

9 Much stress was laid by leaned Senior Counsel appearing for

the petitioner on the expression „Master‟s Degree level in relevant subject‟

to impress upon this Court that, going by the syllabi of two Degrees i.e.,

M.Sc. Geology and M.Sc. in Applied Geology, it is incorrect to hold that

M.Sc. in Applied Geology is not a Master Degree in the relevant subject i.e

the subject of Geology.

10 We find great deal of substance in the argument of learned

Senior Counsel appearing for the petitioner. As a matter of fact, the CAT

has not gone into this aspect of the matter. Persuaded by the observations

made by the Hon‟ble Supreme Court that it is not within the province of the

Courts to find out equivalence or relevance of the qualification prescribed

by the statutory rules which is always a prerogative of the employer, the

CAT has dismissed the claim of the petitioner and held the notice issued by

the PSC rejecting his candidature correct in law. We have carefully gone

through the judgment impugned as also the case law relied upon and we

find that the CAT has clearly misdirected itself and has not approached the

controversy involved for adjudication in proper perspective. The

qualification for the post indicated in the Advertisement Notification

which, in turn, is a qualification prescribed by the statutory recruitment

rules, does not provide the qualification of M.Sc. Geology, but provides

Master‟s Degree level in the relevant subject.

11 The question that begs determination is whether, for the post

of Assistant Professor in Geology, a candidate possessing Master Degree in

Applied Geology can also be held to possess the requisite qualification in

the relevant subject. The distinction needs to be drawn between „relevant

subject‟ and the „subject concerned‟. Master‟s Degree level in the

concerned subject may indicate that a candidate must possess M.Sc. in

Geology, whereas „Master‟s Degree in relevant subject‟ would denote that

the qualification, which may have different nomenclature, but is a

qualification relevant to teaching of Geology, would also be the

qualification prescribed for the post of Assistant Professor (Geology).

12 It is true and we have no quarrel with the proposition that it is

not for the Courts to read into or assume and thereby include certain

qualifications which have not been included in the notification by the

employer. Even the relevance or equivalence of the qualification prescribed

for the post does not fall within the domain of judicial review and the

matter should be best left to the experts in the field. This is what has been

held by the Supreme Court in its judgment rendered in the cases of Zahoor

Ahmad Rather (supra) and Zonal Manager, Bank of India (supra) which

have been strongly relied upon by the CAT. However, in the instant case,

when the doubts were raised by the PSC with regard to the eligibility of

petitioner to apply for the post in question, the employer (Department of

Higher Education), on the basis of expert opinion tendered by the

University of Jammu and University of Kashmir, intimated to the PSC that

the qualification of M.Sc. in Applied Geology, possessed by the petitioner

is a relevant qualification for the post of Assistant Professor in Geology in

Higher Education Department. In the face of aforesaid opinion by the

Expert Bodies, the CAT could have simply held the petitioner eligible for

the post being possessed of qualification which is found by the Experts a

relevant qualification for the post.

13 At this juncture, we would like to make a reference to the

communication of the University Grants Commission [„UGC‟] bearing

No. F-17-6/2013(PS/Misc) issued in September, 2015, whereby the UGC

issued a clarification in response to the query in the following manner:

  Query                                    Reply
What does relevant subject mean by         The relevance of subject or inter
provision in para 4.4.0? when              disciplinary nature of subject is
recruiting   a    candidate     for        required to be decided by the
„commerce subject‟ does a candidate        concerned       University/appointing
having done MBA (Management)               authority with the help of subject
subject become relevant subject for        experts in the concerned/related
commerce ?                                 field as per the requirement.

14. From the clarification issued by the UGC, it becomes

abundantly clear that the relevance or equivalence of a subject is required

to be determined by the concerned Unviersity/Appointing Authority with

the help of subject experts.

15 In the case on hand, the Appointing Authority i.e., the

Department of Higher Education, took up the matter with two Expert

Bodies i.e University of Jammu and University of Kashmir. The

clarification issued by the University of Kashmir which was on record

before the CAT reads thus:

"Deputy Registrar (Academic) University of Kashmir vide letter No. F(Clar-AP-Gel) Acad/17 dated 24.10.2017 has intimated that the Master‟s Degree awarded by the University of Kashmir in Applied Geology is same s the Master‟s Degree in Geology awarded elsewhere and therefore the M.Sc. applied Geology students may be considered eligible for Assistant Professor/Lecturer posts in the Higher Education Department"

16. To the similar effect is the opinion of the University of Jammu

which, for facility of reference, is also set out below:

"Master‟s in Applied Geology and Master‟s are equivalent and recognized degrees. Most of the employees including UPSC, ONGC, Coal India Ltd. recognize the M.Sc. (Applied Geology)/M.Sc. Tech (Applied Geology) and M.Tech (Applied Geology) for consideration of candidates for appointments in different category as Geologists along with the candidates having M.Sc. (Geology) Degree. Also all the Universities appoint candidates with above mentioned Degree as Assistant Professors. University of Jammu is also giving M.Sc. Applied Geology since 2014".

17 Mr. Jahangir Iqbal Ganaie, learned Senior Counsel appearing

for the private respondents may not be incorrect when he contends that,

when the Recruitment Rules or the Advertisement Notification does not

provide for equivalent qualification, it is not legally permissible even for

the employer to request the PSC-the selection body to consider the

candidates possessing equivalent qualification. However, the fact remains,

that, in the instant case, the writ petitioner is not claiming that the

qualification of M.Sc. in Applied Geology possessed by him should be

declared as a qualification equivalent to MSc. Geology, but his plea is that

the qualification of M.Sc. Applied Geology is a qualification in the relevant

subject i.e the subject of Geology as is opined by the two Apex Level

Academic Bodies of UT of Jammu and Kashmir i.e University of Jammu

and University of Kashmir. We also cannot lose sight of the fact that the

qualification, which is equivalent to the qualification prescribed, cannot, by

any stretch of reasoning, be held to be a qualification not relevant in the

subject in which appointment is to be made. What is equivalent would

necessarily be relevant. The equivalent qualification means a qualification

that is equal in function, value, significance or level or similar in function,

whereas the definition of relevant qualification, as given in the Collins

Dictionary, is a qualification having direct bearing on the matter in hand;

pertinent. It is, thus, evident that a qualification which is equivalent to the

prescribed qualification would indeed be a qualification in the relevant

subject for which recruitment is sought to be made.

18 We agree with the learned Senior Counsel appearing for the

private respondents that the opinion tendered by the University of Jammu

and University of Kashmir is not specific to the relevance of qualification,

however, by reading the two opinions in their entirety, one would find that

both the Universities are ad idem that the Degrees of M.Sc. Geology and

M.Sc. Applied Geology are same and equivalent and, therefore, relevant to

the subject to be taught by an Assistant Professor in the Higher Education

Department. We have no reason, nor are we provided with such material as

would persuade us to take a view or formulate an opinion contrary to the

one rendered by the Expert Bodies.

19 At this stage, we would like to refer to and rely upon what is

said by the Supreme Court in the recent judgments rendered in the cases of

Devender Bhasker and others vs. State of Haryana 2021, SCC Online

SC 1116 and Zonal Manager, Bank of India (supra) which is also

referred to and relied upon by the CAT in the impugned judgment.

20. In the case of Zonal Manager, Bank of India (supra), the

Supreme Court, in paragraphs 12 and 16 has held thus:

12.Though we have taken note of the said contention we are unable to accept the same. We are of such opinion in view of the well established position that it is not for the Court to read into or assume and thereby include certain qualifications which have not been included in the Notification by the employer. Further the rules as referred to by the learned counsel for the respondents is pointed out to be a rule for promotion of officers. That apart, even if the qualification prescribed in the advertisement was contrary to the qualification provided under the recruitment rules, it would

have been open for the candidate concerned to challenge the Notification alleging denial of opportunity. On the other hand, having taken note of the specific qualification prescribed in the Notification it would not be open for a candidate to assume that the qualification possessed by such candidate is equivalent and thereby seek consideration for appointment nor will it even be open for the employer to change the requirements midstream during the ongoing selection process or accept any qualification other than the one notified since it would amount to denial of opportunity to those who possess the qualification but had not applied as it was not notified.

16. Further it is not for the Court to provide the equivalence relating to educational qualifications inasmuch as the said issue has been settled by the Constitution Bench of this Court in the decision relied upon by the learned counsel for the appellants in the case of Mohammad Shujat Ali & Ors. vs. Union of India & Ors, (1975) 3 SCC 76 wherein it is held that the question in regard to equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications and where the decision of the Government is based on the recommendation of an expert body which possesses the requisite knowledge, skill and expertise for adequately discharging such a function, the Court, uninformed of relevant data and unaided by the technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government".

21 From a reading of two paragraphs of the judgment reproduced

above, two things are clearly evident: first, if a particular qualification is

prescribed by the Statutory Rules or in the Advertisement, it would not be

open to the Courts to deviate from such qualification and add to it the

qualification which may be even equivalent or relevant as that would be

tantamount to amending the Recruitment Rules or modifying the

Advertisement Notification and; two, it is not within the domain of the

Courts to find out the equivalence of the prescribed qualification as the

question of equivalence of educational qualification is a technical question

based on proper assessment and evaluation of academic standards and

practical attainments of such qualification and, therefore, such decision

should be best left to the Government/Appointing Authority to be taken on

the basis of the recommendations of an Expert Body which possesses the

requisite knowledge, skill and expertise for adequately discharging such

functions.

22 Similar view has been taken by the Supreme Court in

Devender Bhakser (supra).

23 As we have stated above that there is no quarrel with the

above proposition put forth by the learned Senior Counsel appearing for the

respondents, but, what is relevant qualification in terms of the recruitment

rules is required to be spelled out by the Appointing Authorities, of course,

on the basis of domain experts.

24. In the instant case, with a view to find out whether the

qualification of M.Sc. in Applied Geology is a qualification in the relevant

subject i.e the subject of Geology, the Appointing Authority i.e respondent

No.1 took up the matter with two Apex Level Academic Bodies i.e

Unviersity of Jammu and University of Kashmir and it is on the basis of

opinion of these expert bodies, the Government unequivocally conveyed to

the PSC that the qualification possessed by the petitioner was the relevant

qualification for the post of Assistant Professor Geology and, therefore, the

petitioner was eligible. It is, thus, not understandable as to how the

selection body like the PSC could sit over the opinion of the appointing

authority based on the expert advise given in respect of relevance of the

qualification i.e, „M.Sc. Applied Geology‟ possessed by the petitioner.

25 We are aware that the opinion of the appointing authority

based on the recommendations of the subject experts in respect of

equivalence or relevance of the qualification prescribed for a post is not

always and as a thumb rule binding on the Courts or is to be accepted as

correct under all the circumstances. There may be cases where even the

opinion of the expert is on the face of it, absurd or even actuated by bias or

mala fide consideration. In such situation, nothing prevents a

Constitutional Court to examine such opinion in the exercise of its power

of judicial review.

26 Learned counsel for the PSC or for that matter, learned Senior

Counsel appearing for the private respondents could not bring to our notice

any power or competence conferred upon the PSC to sit over such decision

of the appointing authority in respect of prescribed qualification

particularly when such opinion of the appointing authority is based upon

the recommendations of the experts domain. We have no doubt in our mind

that it is neither for the selection body, nor for the Courts to enter into the

arena of finding out the equivalence or relevance of the qualification

prescribed for the post. We make it clear that the need to seek the expert

opinion and the point of view of the appointing authority in respect of

qualification may arise only when there is some confusion or ambiguity in

the prescribed qualification. Had the statutory Recruitment Rules and the

Advisement notification notified the qualification for the post of Assistant

Professor in Geology as M.Sc. Geology, perhaps it was not permissible for

the appointing authority or, for this court, to look for any equivalent or

relevant qualification. However, in the instant case, the Advertisement

Notification did not prescribe qualification of M.Sc. Geology or M.Sc. in

Applied Geology, but instead, it stipulated a Post Graduate Degree level in

the relevant subject. It was in this context, a controversy arose as to

whether the qualification of M.Sc. in Applied Geology is a qualification in

the relevant subject or not. The Government, when confronted with this

position, took up the matter with University of Jammu and University of

Kashmir to obtain their expert opinion and it was on the basis of the expert

opinion tendered by the Apex level Academic Autonomous Bodies, the

appointing authority conveyed it to the PSC that the qualification of M.S.c

in Applied Geology possessed by the petitioner is also the relevant

qualification and, therefore, the petitioner was entitled to be considered in

the selection process. The PSC of its own and without having any such

authority or competence set aside the opinion of the Government and vide

notice impugned rejected the candidature of the petitioner for the post in

question. The CAT has completely strayed away from the point in issue

and has dismissed the plea of the petitioner on the ground that the

qualification prescribed in the Advertisement Notification i.e the Post

Graduation in the relevant subject is Post Graduation in Geology only.

27 We, for the reasons given above, are not in a position to accept

the view taken by the CAT.

28 For the foregoing reasons, the writ petition is allowed. The

judgment impugned passed by the CAT is set aside. The impugned

notification issued by the PSC declaring the petitioner ineligible is also set

aside. The PSC shall proceed to complete the selection process by

considering the petitioner also as an eligible candidate for the post of

Assistant Professor in Geology in accordance with law.

              (MOKSHA KHAJURIA KAZMI)                  (SANJEEV KUMAR)
                               JUDGE                             JUDGE
Srinagar
04 .02.2023
Sanjeev
                                 Whether the order is reportable :Yes