Mritunjay Kumar @ Mortyonjoy ... vs The State Of Jharkhand
2021 Latest Caselaw 2181 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   L.P.A. No.222 of 2020
                             ----
Mritunjay Kumar @ Mortyonjoy Kumar, aged about 43 years son of
Ramayan Tiwary resident of 19, Riverside, Lakra Hostel Lane, Kadru,
P.O. Kadru, P.S. Argora, Dist. Ranchi.
                                              ...     ...    Appellant
                               Versus
1.  The State of Jharkhand.
2.  The Secretary, Human Resource Development Department,
    (Higher Education) having its office at Project building, P.O. &
    P.S. Dhurwa, Dist. - Ranchi.
3. The Director, Higher Education, Govt. of Jharkhand, having its
    office at Project building, P.O. & P.S. Dhurwa, Dist. - Ranchi.
4. Ranchi University through its Vice-Chancellor having its office at
    Kutchery Road, P.O. - G.P.O., P.S. - Kotwali, Dist. - Ranchi.
5. The Registrar, Ranchi Univeersity, having its office at Kutchery
    Road, P.O. - G.P.O., P.S. - Kotwali, Dist. - Ranchi.
6. Yogada Satsanga Mahavidyalaya, Ranchi, through its Principal
    having its office at Jagannathpur, P.O.- Dhurwa & P.S.
    Jagannathpur, Dist. - Ranchi.
7. The       Secretary,     Governing      Body,   Yogada     Satsanga
    Mahavidyalaya, Ranchi, having its office at Jagannathpur, P.O.-
    Dhurwa & P.S. Jagannathpur, Dist. - Ranchi.
8. Jharkhand Public Service Commission through its Secretary,
    having its office at Circular Road, P.O. & P.s. Lalpur, Dist.
    Ranchi.
9. Yogesh Kumar, aged about 39 years, son of Mukesh Thakur,
    resident of Doranda, Bhawanipur, Near Devi Mandir, P.O. & P.S.
    Doranda, District Ranchi
                                            ...    ... Respondents
                                  -------
CORAM :            HON'BLE THE CHIEF JUSTICE
           HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                                   ------
For the Appellant                : Mr. Anil Kumar Sinha, Sr. Advocate
                                   Mr. Rahul Kumar, Advocate
For the Respondent Nos. 1 - 3 : Mr. Mukesh Kumar Sinha, Sr. S.C.-I
For the Respondent Nos. 4-5 : Mr. Anoop Kumar Mehta, Advocate
For the Respondent Nos. 6-7 : Mr. Mrinal Kanti Roy, Advocate
                                   Mr. Piyush Chitresh, Advocate
For the Respondent No. 8         : Mr. Sanjay Piprawall, Advocate
For the Respondent No.9          : Mr. Shresth Gautam, Advocate
                                  --------
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C.A.V. on 23.02.2021            Pronounced on 5th/07/2021

Per Sujit Narayan Prasad, J.

With consent of the parties, hearing of the matter was done

through video conferencing and there was no complaint whatsoever

regarding audio and visual quality.

2. Heard parties.

3. The instant intra-court appeal is under Clause 10 of the Letters

Patent directed against the order dated 11.06.2020 passed by

learned Single Judge of this Court in W.P.(S) No.3604 of 2019

whereby and whereunder the appointment of Respondent No.9 to the

post of Assistant Professor (History) has been held to be not

sustainable in the eyes of law and accordingly quashed and set aside

with a further direction to reconsider the case of the writ petitioner,

if found eligible for appointment.

4. The brief facts of the case which are required to be referred,

read as under :-

The writ petitioner/respondent no.9 having qualification of

Ph.D., M.A. in History, M.A. in Archaeology and Museology,

submitted application in pursuance to advertisement issued by

Yogada Satsanga Mahavidyalaya in the year 2017 by which

applications were invited for a walk in interview and presentation for

contractual appointment as Assistant Professor on per class basis at

the Degree Section of the college in question.

The case of the writ petitioner/respondent no.9 along with

others, having found eligible, were called to participate in the

interview and after scrutiny of the documents and qualification of the

writ petitioner/respondent no.9, an appointment letter dated

18.08.2017 was issued and he was appointed as Assistant Professor

(Contractual) in the Department of History.

After appointment, the writ petitioner/respondent no.9 started

discharging his duty to the satisfaction of all concerned and

consequently the services of the writ petitioner/respondent no.9 was

extended vide letter dated 10.08.2018 for a period of 11 months with

effect from 22.07.2018.

In the meantime, the respondent-College issued fresh

advertisement dated 24.01.2018 for direct recruitment on the

sanctioned post of Assistant Professor in the Department of History.

The writ petitioner/respondent no.9 being eligible for the post

advertised, applied for the same and even though he was found to be

qualified, without considering his case, one Mritunjay Kumar

(appellant herein) has been shortlisted and appointed to the post of

Assistant Professor in the Department of History.

The writ petitioner/respondent no.9 sought information by

making an application under Right to Information Act, 2005

regarding the entire recruitment process right from issuance of the

advertisement and criteria adopted for selection of a candidate and

the details of appointment made in the department of history earlier

and the existing procedure for appointment in the said department.

The writ petitioner/respondent no.9, after going across the

information furnished, has found that the appellant has passed M.A.

in Ancient History and not in History and he is not eligible to be

considered for appointment as Assistant Professor in History and as

such, writ petition being W.P.(S) No. 3609 of 2019 has been filed

questioning the appointment of respondent no.9/appellant by

invoking the jurisdiction conferred to this Court under Article 226 of

the Constitution of India agitating therein that the respondent

no.9/appellant ought not to have been appointed due to not

possessing the required eligibility condition since as per the

advertisement the educational qualification to be possessed by one or

the other candidates in the relevant subject and since applications

were invited for appointment of Assistant Professor in History, the

respondent no.9/appellant being holder of post-graduation degree in

Ancient History, cannot be construed to be subject History being part

of history subject and hence, he is not fulfilling the requisite

educational criteria but without considering this aspect of the

matter, the respondent no.9/appellant has been appointed.

The writ petitioner has also taken a ground by putting reliance

upon a judgment rendered by the Division Bench of this Court in

L.P.A. No. 693 of 2019 [Manish Kumar & Others v. The State of

Jharkhand & Others] whereby and whereunder this Court has laid

down the ratio by holding therein that History means History and not

the part of the History like World History, Ancient History or Modern

History and therefore, the case of the writ petitioner is squarely

covered with the said judgment and in view thereof the appointment

of respondent no.9/appellant is fit to be struck down.

5. The respondent no.9/appellant as also the college in question

have put their appearance before the writ court and jointly taken the

plea that as per the UGC Regulation wherein it has been stipulated

that the Master‟s degree in relevant/concerned/allied subject is

required and the respondent no.9/appellant since is possessing

Master‟s degree in Ancient History, the Selection Committee has

found him fit to be appointed.

Further, the respondent no.9/appellant has qualified in the

National Eligibility Test (NET) whereby and whereunder he has been

found eligible to be appointed in the subject History, however, the

subject of NET finds mentioned as Ancient History and, therefore,

when in the NET itself the writ petitioner has been held eligible to be

appointed in the subject History, the Selection Committee on

consideration of the said certificate, has found the respondent

no.9/appellant eligible to be appointed and accordingly, he has been

appointed.

So far as the applicability of the judgment rendered by this

Court in L.P.A. No. 693 of 2019 is concerned, the factual aspect

revolves therein is quite different to that of the present one since

therein the question of appointment to the post of post-graduate

teachers were involved and applications were invited for appointment

of teachers in the subject History and as per the decision taken by

the Expert Committee, subject History has been said to be History in

entirety and not a branch of it but herein since the question of

appointment as Assistant Professor is involved which is to be

governed by the UGC Regulation which provides condition for

appointment as Assistant Professor if a candidate is possessing

Master‟s degree with minimum 55% marks in

concerned/relevant/allied subject and further, in the Regulation

itself the educational criteria is fixed to have the post-graduation

degree in the relevant subject and, therefore, the judgment passed by

this Court in L.P.A. No. 693 of 2019 cannot be made applicable but

the learned Single Judge without appreciating the factual aspect

involved therein, has made that judgment applicable in the facts of

this case. Hence, the impugned judgment is not sustainable and the

prayer made by the writ petitioner /respondent no.9 is not fit to be

entertained.

Learned Single Judge, on appreciating the rival submissions,

has allowed the writ petition by taking into consideration the

judgment rendered by the Division Bench of this Court in L.P.A. No.

693 of 2019 as also by going through the advertisement which

prescribes eligibility criteria for a candidate to have post-graduation

degree in History but that is not being possessed by respondent

no.9/appellant, therefore, his appointment has been quashed and

set aside with a direction to reconsider the case of the writ petitioner

for appointment, if the writ petitioner is found eligible, which is the

subject matter of the present intra-court appeal.

6. We have heard the learned counsel in the present intra-court

appeal.

7. Mr. Anil Kumar Sinha, learned senior counsel appearing for the

appellant, assisted by Mr. Rahul Kumar, learned counsel, has

submitted by assailing the impugned order by referring to the

infirmity committed therein that the learned Single Judge has

passed the order without answering the issue raised before it.

Learned Single Judge has relied upon the judgment rendered by the

Division Bench of this Court in L.P.A. No. 693 of 2019 without

considering its applicability on facts of the present case. The learned

Single Judge has not appreciated the eligibility of the respondent

no.9/appellant who has been declared eligible by granting certificate

on being qualified in the National Eligibility Test and further, as per

the UGC Regulation, which is applicable to the university concerned,

the appellant is having requisite educational qualification since it

has been provided in the Regulation to have post-graduation degree

with 55% marks in concerned/relevant/allied subject.

It has further been submitted that the employer has found the

writ petitioner fit to be appointed and, therefore, on this count also

the judgment rendered by the Division Bench of this Court in L.P.A.

No. 693 of 2019 cannot be said to be applicable as because in that

case the recruiting agency itself has declared the candidature of

such candidates who were having no post-graduation degree in

History as unfit but herein the employer has accepted the

candidature of the appellant considering the post-graduation degree

in Ancient History as also by taking into consideration the

qualification of the respondent no.9/appellant in the National

Eligibility Test and, therefore, the order passed by the learned Single

Judge is not sustainable in the eyes of law.

Learned counsel has relied upon the following judgments:-

(i) Ashok Kumar Gupta v. State of U.P. and Others

{(1997) 5 SCC 201]

(ii) Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal

University, Sirsa and Another [(2008) 9 SCC 284]

(iii) Basavaiah (Dr.) v. Dr. H.L. Ramesh and Others [(2010

8 SCC 372]

(iv) Bedanga Talukdar v. Saifudaullah Khan and Others

[(2011) 112 SCC 85]

(v) Sanjay K. Dixit and Others v. State of Uttar Pradesh

and Others [(2019) 17 SCC 373]

(vi) Uttar Pradesh Public Service Commission, through its

Chairman and Another v. Rahul Singh and Another

[(2018) 7 SCC 254].

8. The respondent No.6-Yogada Satsanga Mahavidyalaya has been

represented by Mr. Mrinal Kanti Roy, learned counsel. He submits

that the candidature of the eligible candidates including the writ-

petitioner and respondent No.9 have been considered in which the

respondent No.9/appellant has been found to be more meritorious in

comparison to the others, as such, he has been placed at the top of

the merit list, hence, the selection committee, considering the

suitability/merit of the respondent No.9/appellant, has selected and

appointed as per the requirement.

It has further been submitted that the selection committee has

found the candidature of appellant more suitable than the writ-

petitioner and as per the requirement and suitability, he has been

selected and therefore, this Court sitting under Article 226 of the

Constitution of India is not supposed to interfere with the decision of

the selection committee consisting of the experts.

Further, if the selection committee has taken a decision about

the suitability as per the requirement, the same cannot be subjected

to appeal unless it is arbitrary or malice but no such allegation has

been leveled, save and except, lack of educational qualification of not

having post-graduation in History but when the selection committee

has considered the certificate issued on being qualified in the

National Eligibility Test finding the appellant fit for the purpose, the

same cannot be interfered with by the High Court because it is the

employer‟s prerogative to choose more suitable candidate as per the

requirement and as per the UGC regulation which has been

considered in the appointment of appellant who is having post-

graduation in relevant/concerned/allied subject coupled with NET

qualified, hence, it cannot be said that the appellant herein is

lacking the minimum qualification but according to the learned

counsel on the backdrop of these factual aspects, the judgment

rendered by the Division Bench of this Court in L.P.A. No. 693 of

2019 is not applicable and all these aspects of the matter same has

not been considered by the learned Single Judge.

9. Per contra, Mr. Shresth Gautam, learned counsel appearing for

the writ petitioner/respondent no.9, has submitted that there is no

infirmity in the order passed by the learned Single Judge as because

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the learned Single Judge has taken into consideration the specific

stipulation made in the advertisement wherein the requirement to

possess the educational qualification is in the relevant subject and

herein the relevant subject being advertised is post-graduation in

History and, therefore, having post-graduation degree in Ancient

History cannot be construed to be post-graduation degree in History.

He further submits that this very issue has already been dealt

with by the Division Bench of this Court in L.P.A. No. 693 of 2019

wherein the issue fell for consideration is also exactly the same by

deciding with respect to the determination of educational

qualification in the subject History and having post-graduation

degree in one of the branch of History has been held to be not

sufficient for consideration of candidature of a candidate for being

appointed as teacher in the History and, hence, the learned Single

Judge while following the judgment rendered by the Division Bench

in L.P.A. No. 693 of 2019, since has quashed an set aside the

appointment of the respondent no.9/appellant, the same cannot be

said to suffer from an error.

He further submits that if any stipulation has been made in the

advertisement, the same is strictly to be adhered to and in the

advertisement the requirement has been stipulated to be the post-

graduation degree with minimum 55% marks in the relevant subject

and since in the advertisement the post of Assistant Professor was to

be filled up in the subject History but admittedly herein, the

appellant/respondent no.9 is having post-graduation in Ancient

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History, therefore, he cannot be said to have post-graduation in

subject History and considering this aspect of the matter, the

learned Single Judge is correct in holding the appointment of

appellant/respondent no.9 to be illegal being not possessing the

required advertised educational criteria.

He has also relied upon a judgment rendered by the Hon'ble

Apex Court in Civil Appeal No.4016 of 2020 [APJ Abdul Kalam

Technological University & Another v. Jai Bharath College of

Management and Engineering Technology & Others].

10. We have heard the learned counsel for the parties, perused the

documents available on record as also the finding recorded by the

learned Single Judge.

11. This Court, before proceeding to examine the legality and

propriety of the impugned order, deems it fit and proper to first deal

with the factual aspects of the matter.

The respondent no.6-Yagada Satsanga College, a minority

school under the control of the Ranchi University wherein the UGC

Regulation has been adopted, has come out with an advertisement

inviting application for appointment to the post of Assistant

Professor (History) for filling up two vacant posts in the Department

of History. The qualifications for Assistant Professor in colleges have

been decided to be in accordance with the UGC Regulation, 2010

and the subsequent amendment as adopted by Ranchi University.

The criteria has been fixed as :-

"4.0 Direct Recruitment 4.1 For the Disciplines of Arts, Commerce, Humanities,

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Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical Education, and Journalism & Mass Communication.

I. Assistant Professor:

Eligibility (A or B) :

A.

i) A Master„s degree with 55% marks (or an equivalent grade in a point-scale wherever the grading system is followed) in a concerned/relevant/allied subject from an Indian University, or an equivalent degree from an accredited foreign university.

ii) Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC or the CSIR, or a similar test accredited by the UGC, like SLET/SET or who are or have been awarded a Ph. D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil./Ph.D. Degree) Regulations, 2009 or 2016 and their amendments from time to time as the case may be exempted from NET/SLET/SET."

Thus, it is evident that the educational qualification of having

at least 55% marks at the Master‟s degree level in the relevant

subject has been provided with clearing the NET conducted by UGC

or the CSIR. The aforesaid advertisement has been published

following the UGC Regulation 2010 and their subsequent

amendments as adopted by the Ranchi University. The UGC

Regulation has been appended to in the memo of appeal.

We, after going through the UGC Regulation notified on

18.07.2018, has found therefrom that minimum qualification for

appointment of teachers and other academic staffs in universities

and colleges has been provided wherein under caption heading

"Coverage" under Regulation 1.0 minimum qualification for

appointment and other service conditions of university has been

provided which contains that for appointment to the post of

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Assistant Professor and other positions pertaining to discipline in

which National Eligibility Test, conducted by the University Grants

Commission (UGC) or Council of Scientific and Industrial Research

(CSIR) as the case may be, or State Level Eligibility Test (SLET) or the

State Eligibility Test (SET) conducted by bodies accredited by UGC

for the said purpose. Qualifying in NET/SLET/SET shall be an

additional requirement, meaning thereby, apart from having

minimum educational qualification and having 55% marks in the

post-graduation in relevant subject and NET/ SLET/SET is also

mandatorily to be possessed by one or the other candidates.

It is further evident from Clause 4.0 under caption heading

"Direct Recruitment" which provides under Clause 4.1 that for the

Disciplines of Arts, Commerce, Humanities, Education, Law, Social

Sciences, Sciences, Languages, Library Science, Physical Education,

and Journalism & Mass Communication, a Master„s degree with 55%

marks (or an equivalent grade in a point-scale wherever the grading

system is followed) in a concerned/relevant/allied subject from an

Indian University, or an equivalent degree from an accredited foreign

university and further, besides fulfilling the above qualifications, the

candidate must have cleared the National Eligibility Test (NET)

conducted by the UGC or the CSIR, or a similar test accredited by

the UGC, like SLET/SET or who have been awarded a Ph. D. Degree

in accordance with the University Grants Commission (Minimum

Standards and Procedure for Award of M.Phil./Ph.D. Degree)

Regulations, 2009 or 2016.

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Thus, it is evident that in the advertisement reference has been

made to have post-graduation degree with minimum 55% marks in

the relevant subject. The relevant subject, according to the writ

petitioner/respondent no.9 is post-graduation in History and since

the appellant/respondent no.9 is having post-graduation in Ancient

History, he cannot be held eligible as per the advertisement but the

question is that if the advertisement refers a condition about having

post-graduation with minimum 55% marks in the

concerned/relevant/allied subject while UGC Regulation which has

been adopted contains the eligibility criteria to have Master‟s degree

with 55% marks in concerned/relevant/allied subject which will

prevail, the condition stipulated in the advertisement or in the

Regulation?

It is not in dispute that if any advertisement is being issued by

any recruiting agency or employer to fill up a public post, the same is

to be in pursuance to the recruitment rules. Admittedly herein, the

UGC Regulation has been adopted, as would be evident from the

advertisement and, therefore, if there is any contradiction so far as it

relates to the eligibility criteria, the condition stipulated in the Rules

or Regulations is to be followed and, therefore, we have thought it

proper to reject the plea of the writ petitioner/respondent no.9 that

the condition which has been stipulated in the advertisement to have

a minimum post-graduation degree with 55% marks in the relevant

subject will only construe to be post-graduation in History and not

the post-graduation degree in concerned/relevant/allied subject as

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because Ancient History will be said to be an allied subject of History

and since as per the UGC regulation, a candidate having the post-

graduation in Ancient History or allied subject will be eligible for

consideration for appointment to the post of Assistant Professor in

History.

The above finding is further being fortified from the certificate

issued by the University Grants Commission declaring the appellant

qualified in the National Eligibility Test holding him fit for

consideration for appointment in the subject "History", however, the

subject of National Eligibility Test has been stipulated therein as

"Ancient History".

Therefore, the question would be when the Expert Committee

has granted the NET qualified certificate to the appellant, the same

being opinion of Expert Committee, we, as a court of law cannot sit

upon the certificate of being qualified in the NET holding the

appellant fit to be considered for appointment in the subject History

and, therefore, we are of the considered view that the Ancient

History, in the facts and circumstances of the case, will also come

under the fold of the minimum educational qualification of having

55% marks in the post-graduation degree in the concerned subject.

The question of eligibility to the post of Reader having

qualification in the relevant subject fell for consideration in Rajbir

Singh Dalal (Dr.) v. Chaudhari Devi Lal University, Sirsa and

Another [(2008) 9 SCC 284] wherein the fact as would appear from

paragraph 6 thereof that one Dr. Raj Kumar Siwach, who was a

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Lecturer in Public Administration had also applied for the post of

Reader, but he was not selected and instead the appellant was

selected. Hence, Respondent 2 filed a writ petition in the Punjab and

Haryana High Court being CWP No. 6642 of 2005 in which he

alleged that the appellant herein, Dr. Rajbir Singh Dalal, did not

possess the requisite qualification for the post of Reader in Public

Administration. It was alleged in the writ petition that the appellant

was an MA and PhD in Political Science and not in Public

Administration. Hence, the appellant was not eligible for being

selected and appointed as Reader in Public Administration.

The Hon'ble Apex Court while dealing with the said issue has

relied upon the opinion of the academic experts who have regarded

Political Science and Public Administration to be one discipline and

as such it was opined by the Hon'ble Apex Court that it is not right

for this Court to sit in appeal over the opinion of experts (Para 25).

Paragraph-25 of the said judgment is quoted as under:

"25. In our opinion, in the present case, the anusanga principle of Mimansa should be utilised and the expression "relevant subject" should also be inserted in the qualification for the post of Reader after the words "at the Masters degree level". Hence, we cannot accept the submission of Mr Patwalia in this respect. However, we agree with Mr Patwalia that since academic experts have regarded Political Science and Public Administration to be one discipline, it is not right for this Court to sit in appeal over the opinion of the experts."

Further, the Hon'ble Apex Court has taken into consideration

the judgment rendered in Tariq Islam v. Aligarh Muslim

University and Others [(2001) 8 SCC 546] wherein it has been

observed that "normally, it is wise and safe for the courts to leave the

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decision of academic matters to experts who are more familiar with

the problems they face than the courts generally are."

It appears from the observation made at paragraph 29 of the

judgment rendered in Rajbir Singh Dalal (Supra) that on a

clarification sought from UGC whether a candidate who possesses a

Master‟s degree in Public Administration is eligible for the post of

Lecturer in Political Science and vice versa, UGC wrote a letter dated

5-3-1992 to the Registrar, M.D. University, Rohtak stating that the

subjects of Political Science and Public Administration are

interchangeable and interrelated, and a candidate who possesses

Master‟s degree in Public Administration is eligible as Lecturer in

Political Science and vice versa. Thus, this is the view of UGC, which

is an expert in academic matters, and the Court should not sit in

appeal over this opinion and take a contrary view. Paragraph 29 of

the said judgment is quoted as under :-

"29. It may be mentioned that on a clarification sought from UGC whether a candidate who possesses a Masters degree in Public Administration is eligible for the post of Lecturer in Political Science and vice versa, UGC wrote a letter dated 5- 3-1992 to the Registrar, M.D. University, Rohtak stating that the subjects of Political Science and Public Administration are interchangeable and interrelated, and a candidate who possesses Masters degree in Public Administration is eligible as Lecturer in Political Science and vice versa. Thus, this is the view of UGC, which is an expert in academic matters, and the Court should not sit in appeal over this opinion and take a contrary view."

The Hon'ble Apex Court in Basavaiah (Dr.) v. Dr. H.L.

Ramesh and Others [(2010) 8 SCC 372] has held that courts

should show deference to recommendations of Expert Committee,

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particularly when no mala fides have been alleged against experts

constituting Selection Committee and the courts should not

endeavor to sit in appeal over decisions of experts.

The facts leading to the said case is that it has been claimed

that the appellants were not eligible to be appointed because they

had degrees in Zoology and Botany respectively whereas only

Respondent 1 was eligible because he was the only one who had the

doctorate degree in the subject of Sericulture. Such claim has been

made after pointing out the qualification stipulated in the

advertisement for appointment as Reader which was a doctorate

degree or equivalent published work but the learned Single Judge

dismissed the writ petition filed by the concerned respondent on the

ground that selection had taken place in 1999 and the appellants

were working in their respective teaching posts. The Division Bench

has allowed the appeal filed by the concerned respondent on the

ground that the appellants herein did not have doctorate degree in

Sericulture and thereafter the matter reached to the Hon'ble Apex

Court. The Hon'ble Apex Court has considered the recommendation

of an Expert Committee consisting of distinguished experts in the

field wherein it had evaluated the qualification, experience and

published work of the appellants and thereafter recommendations

for their appointments were made and hence, the order passed by

the Division Bench of the High Court has been criticized on the

ground that the High Court ought not to have sat as an appellate

court on the recommendations made by the country's leading experts

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in the field of Sericulture.

The judgment rendered in Ashok Kumar Gupta v. State of

U.P. and Others [(1997) 5 SCC 201] is on the principle of

prospective overruling of a judgment. By referring to para 54

whererin it has been laid down that any judgment will have

prospective overruling and according to the learned senior counsel

appearing for the appellant, the judgment rendered in L.P.A. No.

693 of 2019 is subsequent to the appointment of the appellant and

as such, the same will not be applicable in the facts of this case.

Here the fact of the case which is not in dispute is that the

appellant is having post-graduation in Ancient History. The appellant

is NET qualified which makes him eligible to be considered for the

post of Lecturer in the History subject and the Selection Committee

as also the UGC has issued a general order leaving it open upon the

concerned recruiting agency to look into the equivalence of the

qualifications as has been referred in the impugned order. The

Selection Committee has considered the candidature of the appellant

vis-à-vis the writ petitioner and found the appellant eligible to be

appointed. Thus, the Regulation provides for minimum qualification

of 55% marks in the post-graduation in the

concerned/relevant/allied subject coupled with the NET qualified

certificate wherein the appellant has been found to be eligible to be

considered for Lecturer in History and when the UGC has held him

fit to be considered for the post of Lecturer in History, if contrary

view would be taken by the court of law, the same will amount to

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sitting over appeal upon the opinion of the experts who have found

the appellant fit to be considered for appointment as Lecturer in the

subject History and as such in view of the judgment rendered in the

case of Basavaiah (Dr.) v. Dr. H.L. Ramesh and Others [(2010 8

SCC 372], we are of the considered view that the appointment of the

appellant cannot be held to be illegal for want of minimum

qualification of post-graduation in subject History.

Further, the UGC has issued a general communication leaving

it open upon the concerned recruiting agency to take a decision

about the equivalence of a degree and considering that aspect of the

matter if the Selection Committee has considered the appellant fit to

be appointed as Assistant Professor in the subject History, it cannot

be said to suffer from any infirmity.

12. So far as the question of applicability of the judgment rendered

by the Division Bench of this Court in L.P.A. No. 693 of 2019

[Manish Kumar & Others v. The State of Jharkhand & Others]

is concerned, this Court, after going through the said judgment, has

found from the factual aspect involved therein that the Jharkhand

Staff Selection Commission had come out with an advertisement

being Advertisement No. 10/2017, known as „Post Graduate Trained

Teacher Competitive Examination-2017‟ inviting applications from

eligible candidates for filling up the post of Post Graduate Trained

Teacher for different subject, including the subject History. Pursuant

thereto, applications were submitted and the applicants participated

in the process of selection but on the date of verification of

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testimonials it was found that the appellant of the said case has

submitted graduate/postgraduate degree in Ancient/Medieval/

Modern/ Ancient History, Culture & Archaeology etc. and on being

asked by the Jharkhand Staff Selection Commission, the examining

body, the appellant failed to submit the certificate of degree in

Graduation/Masters of Arts in post-graduation with the subject

History in terms of the advertisement even after show cause having

been issued to them and thereby action of the recruiting agency has

been questioned by filing the writ petition.

The learned Single Judge dismissed the writ petition inter alia

on the ground that having degree or post-graduation in one of the

branch of History cannot be construed to be degree of

post-graduation in subject History which was assailed in intra-court

appeal and the Division Bench of this Court also confirmed the

judgment passed by the learned Single Judge.

Admittedly therein, the fact of the case was for appointment of

post-graduate teacher in different subjects including the subject

History. The examining body had notified the advertisement

stipulating therein the minimum educational qualification for the

post of Trained Graduate Teacher/Post-Graduate Teacher in the

subject History with the specific stipulation in the advertisement to

that effect. The examining body found the candidature of the

appellants not as per the minimum education qualification of having

graduate or post-graduate in subject History and, therefore, his

candidature has been cancelled by issuance of show cause notice,

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meaning thereby, the examining body took a decision not to consider

the candidature of the candidate who is not having degree or post-

graduation degree in the subject History rather degree or post-

graduation in one of the branches of History. It is due to the reason

that the appointment to be made in the different subjects as Teacher

in the schools and therein the UGC Regulation is not applicable but

herein the UGC regulation is applicable having been adopted by the

concerned college/university which provides the minimum

educational qualification of post-graduation with 55% marks in the

relevant/concerned/allied subject. However, in the advertisement

reference of only minimum educational qualification of post-

graduation with 55% marks in the relevant subject has been

provided but it is settled position of law that advertisement will not

prevail over the Rule or Regulation and therefore, factual aspect

involved in this case is quite different on two counts:-

First, therein the recruiting agency itself has found the

candidature of the appellants not worthy to be considered in

pursuance to the conditions of advertisement and as such, their

candidatures were cancelled at the threshold by issuance of show

cause notices and further, the appointment in the different subject

was decided to be made for the post of teacher in different subjects

but herein the appointment to be made as Assistant Professor in

pursuance to the UGC Regulation and it is not that the Selection

Committee has rejected the candidature of the appellant rather, after

consideration of the certificate/educational qualification, his

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candidature has been found to be fit.

And secondly, it would be evident from the judgment rendered

in L.P.A. No. 693 of 2019 that even the expert committee

constituted in order to clarify the issue, had opined that Ancient,

Medieval, Modern History are the branches of the subject History

and candidates having degree in any branch only and not the subject

in its entirety, cannot be eligible for selection in terms of the

advertisement but herein even the Expert Committee, at the time of

declaring the appellant qualified in the NET which is also one of the

additional eligibility criteria as per the UGC Regulation, has

considered the appellant fit to be appointed as Lecturer in subject

History, the same will be considered to be assessment of the

candidature of the appellant at the national level under the UGC

Regulation and hence the judgment rendered in L.P.A. No. 693 of

2019 is not applicable in the facts and circumstances of this case.

Since we have come to the conclusion about non-applicability of

the judgment rendered in L.P.A. No. 693 of 2019, therefore, we are

not dealing with the principle of prospective overruling as has been

relied making reference of judgment rendered in Ashok Kumar

Gupta v. State of U.P. and Others (Supra).

13. We have gone across the order passed by the learned Single

Judge and found the following infirmities :-

(i) The learned Single Judge has not answered the issue raised

by the respondent no.9/appellant about applicability of the

judgment rendered by Division Bench of this Court in L.P.A.

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No. 693 of 2019 in right perspective as has been dealt and

discussed by us hereinabove.

(ii) The learned Single Judge has not appreciated the fact that if

there is discrepancy in the condition of advertisement

regarding eligibility criteria with the Rules or Regulation, it is

the Rules or Regulation to be considered and not the

advertisement as because herein, the learned Single Judge

has considered emphatically about the condition of the

advertisement which contains a condition about possessing

the post-graduation degree in History but in the UGC

Regulation, possessing post-graduation degree with 55%

marks in concerned or relevant or allied subject is

mentioned, meaning thereby, if a candidate is having post-

graduation even in allied subject, will be said to be eligible

for consideration of his candidature since the word „allied‟

literally means "connected" and that is the reason the writ-

petitioner has been held fit to be considered for appointment

as Lecturer in History.

(iii) The learned Single Judge has not considered the expert

opinion that is by way of declaring the respondent

no.9/appellant as NET qualified holding him fit to be

considered for appointment as Lecturer in subject History.

(iv) The learned Single Judge has come to conclusion by way of

considered opinion that illegality has been committed and

the same cannot be allowed to be continued but we fail to

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understand that what led the learned Single Judge in coming

to a considered opinion that illegality has been committed

since there is no discussion for coming to such conclusion

and it is settled that if any conclusion is being arrived at by a

court of first instance, the reason is to be stipulated. It is

settled position of law that any opinion or finding, in absence

of a valid reason or any reason whatsoever, will be said to be

mechanical and cryptic.

(v) The learned Single Judge has come to a finding "admittedly,

the subject "History" has different parts namely (i) Ancient

(ii) Medieval (iii) Modern History (iv) World History" but after

going through the impugned order we have not found

anything having been mentioned therein that what led the

learned Single Judge in coming to conclusion that the

subject History has different parts namely, Ancient History,

Medieval History, Modern History and World History since as

would appear from the pleading made by the parties, the

same dispute is involved herein as to whether a candidate

having the degree/post-graduation in Ancient History can be

said to be eligible for Lecturer in the subject History and,

therefore, we are of the view that the learned Single Judge,

without appreciating the factual aspect in entirety, has come

to conclusion by holding different parts of history.

It is required to be referred herein that the court of

law is required to give a finding on the basis of the factual

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aspect and not in its own personal knowledge.

(vi) Further, we have found that learned Single Judge has come

to a finding holding therein that only to give undue favour to

respondent no.9, such appointment has been made, meaning

thereby, the learned Single Judge has considered the aspect

by attributing mala fide but we have not found any material

available on record alleging mala fide and, therefore, the

finding of the learned Single Judge about giving undue

favour is without any foundation.

14. We, in entirety of facts and circumstances and as per the

discussions made hereinabove, are of the considered view that the

learned Single Judge has not appreciated the fact of the case in the

right perspective and, therefore, the judgment impugned is not

sustainable in the eyes of law. Accordingly, the same is quashed and

set aside.

15. The instant appeal is accordingly allowed and the writ petition

stands dismissed.

16. Consequently, I.A. No. 3837 of 2020 stands dismissed.

17. Interim order dated 17.12.2020 stands vacated.

(Dr. Ravi Ranjan, C.J.) I agree

(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad,J.)

Birendra/ A.F.R.