Patna High Court
The Bihar State Food And Civil ... vs Pappu Kr. Pankaj And Ors on 3 May, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.210 of 2019
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1. The Bihar State Food and Civil Supplies Corporation Limited through its
Managing Director, Daroga Rai Path, Patna
2. The Managing Director, Bihar State Food and Civil Supplies Corporation
Limited, Daroga Rai Path, Patna
3. The Nodal Officer, Bihar State Food and Civil Supplies Corporation Ltd.,
Daroga Rai Path, Patna.
... ... Appellant/s
Versus
1. Pappu Kr. Pankaj, S/O Gopal Prasad (Roll No 109391), R/O village -Naser,
PO gurua,PS Gurua, District-Gaya
2. Md. Ajaj Akhtar (Roll No. 101333), S/o Md. Fahim Akhtar S/0 Md. Fahim
Akhtar, At + P.O.- Basopatti, District- Madhubani, Pin 847225 (Course-
MHRM)
3. Alok Kumar, S/o Pratap Narain (Roll No. 114699), resident of Mohalla-
New Etwarpur, Lalu Path, P.O. Kurthaul, Via- Punpun, District- Patna
4. Sumit Prabhakar , S/o Vinod Prasad (Roll No. 101223), Resident of E-16,
Peoples Cooperative Colony, P.O. Kankarbagh, District- Patna
5. Raj Kumar (Roll no. 113615), S/O (Late) R.S. Yadav Late R.S. Yadav, Ram
Govind Enclave, Punai Chak, P.O. Shastri Nagar, At and District- Patna.
6. Manoj Singh, S/o Bindeshwari Singh (Roll No. 107641), Resident of village
-Deoria, P.O. Pahleza, P.S. Dehri-on- son, District- Rohtas
7. Md Nazruddin, S/o Dil Mohammad (Roll No. 105300), resident of village
and P.O. Mohanpur, P.S. Basantpur, District- Siwan.
8. Shamshay Alam, S/O Md. Idris (Roll No. 113316), resident of village
Sandali, P.O. Barauli, P.S. Barauli, District- Gopalganj
9. Neelmani Jaiswal, S/O Ram Baboo Chaudhary (Roll No. 100217), resident
of village- Rustampur Market, District- Darbhanga
10. Nishant kumar (Roll No. 108728), Son of Sri Prahalad Pandey, Resident of
village Tilka Manjhi, P.S. Tilka Manjhi, At and District- Bhagalpur
11. Abhishek Kumar, son of Tarak Nath Mahto, resident of village-
Bhagwanpur, P.O. Bhagalpur, P.S. Sadar, District- Muzaffarpur.
12. Kanchaneswar Srivastava (Roll No. 106389), Son of Late B.P. Srivastava,
resident of in the house of Late Shivbachchan Lal, Street No. 10A, Santoshi
Maa Path, Mohalla Gaurakhani, At P.O. Sasaram, District- Rohtas.
13. Rajan Kr. Giri (Roll No. 114032) S/o Sri Baliram Giri Rajan Kr. Giri,
resident of village P.O. Dindayalpur, P.s. G.B. Nagar, Tarwara, At District-
Siwan.
14. Shashi Ranjan Kumar (Roll No. 102867), S/o Son of Vishnudeo Prasad,
Resident of Saidpur, P.O. and P.S. Katrisarai, Bilari, District- Patna
15. The State of Bihar through the Principal Secretary, Food and Consumer
Protection Department, Government of Bihar, Patna.
16. All India Council for Technical Education.
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Anjani Kumar, Sr. Advocate
Mr.Shailendra Kumar Singh, Advocate
For the Respondent/s : Mr.Mukul Sinha, Advocate
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHIVAJI PANDEY)
Date : 03-05-2021
Heard learned counsel for the appellants and learned
counsel for the respondents.
In the present appeal, the appellants have challenged
the order dated 05.11.2018 passed in CWJC No. 16481 of 2017
(Pappu Kumar Pankaj and Ors. Vs. The State of Bihar and Ors.)
along with its analogous case bearing CWJC No. 4458 of 2017
(Avinash Kumar Vs. The State of Bihar and Ors.) whereby and
whereunder the learned Single Judge has quashed the decisions
of Managing Director, Bihar State Food and Civil Supplies
Corporation Limited vide Memo Nos.7576 dated 31.07.2017,
7579 dated 31.07.2017, 7577 dated 31.07.2017, 7581 dated
31.07.2017, 7589 dated 31.07.2017, 7587 dated 31.07.2017,
7590 dated 31.07.2017, 7582 dated 31.07.2017, 7571 dated
31.07.2017, 7585 dated 31.07.2017, 7583 dated 31.07.2017,
7584 dated 31.07.2017 (Annexure-1 series) and Memo No. Nil
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
dated 31.07.2017 (Annexure-2) by which it has been held that
the respective writ petitioners, who were possessing the
qualification, do not match with the qualification mentioned in
the advertisement i.e. M.B.A./P.G.D.B.M and, as such, the claim
made by the writ petitioners has been rejected. The orders, which
were under challenge in the writ application, were taken into
consideration in the order passed in CWJC No. 17093 of 2016 in
which this Court has considered thoroughly, the qualifications
and their possession of the certifications, gave direction for
consideration in the light of discussion made in that
judgment/order.
The Bihar State Food and Civil Supplies Corporation
Limited (appellants herein) issued an advertisement for
recruitment and appointment to the post of Assistant Manager
and Assistant Accountant. In the present case, the dispute is
confined only with respect to the post of Assistant Manager. As
per the advertisement, the total 407 post were divided in different
categories, the educational qualification fixed, for that post, the
candidate must possess degree of MBA/PGDBM from
recognized University/ institute approved by AICTE. The writ
petitioners (private respondents herein), in pursuance of
advertisement, applied for the said post.
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
From the records, it appears that Pappu Kr. Pankaj
(petitioner no. 1, Roll No.109391) has acquired the qualification
of Master in Human Resources Management (MHRM) from
Lalit Narayan Mishra Institute of Economic Development and
Social Change, an autonomous institute under Magadh
University, Bodh Gaya; Md. Ajaj Akhtar (petitioner no. 2, Roll
No.101333) has acquired the qualification of Master of Human
Resources Management (MHRM) from Lalit Narayan Mishra
Institute of Economic Development and Social Change, an
autonomous institute under Magadh University, Bodh Gaya;
Alok Kumar (petitioner no. 3, Roll No.114699) has acquired the
qualification of Master of Human Resources Management
(MHRM) from Lalit Narayan Mishra Institute of Economic
Development and Social Change, an autonomous institute under
Magadh University, Bodh Gaya; Sumit Prabhakar (petitioner no.
4, Roll No.101223) has acquired the qualification of Master of
Human Resources Management (MHRM) from Lalit Narayan
Mishra Institute of Economic Development and Social Change,
an autonomous institute under Magadh University, Bodh Gaya;
Raj Kumar (petitioner no. 5, Roll No.113615) has acquired the
qualification of Master in Human Resources Management
(MHRM) from Institute of Management Technology, Cente for
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
Distance Learning, Ghaziabad, but University name has been
shown as Vidyasagar University, Midnapore, West Bengal;
Manoj Singh (petitioner no. 6, Roll No.107641) has acquired the
qualification of M.A. in Personnel Management & Industrial
Relation (PMIR) from the Patna University; Md. Nazaruddin
(petitioner no. 7, Roll No.105300) has acquired the qualification
of M.A. in Personnel Management & Industrial Relation (PMIR)
from the Patna University; Shamsay Alam (petitioner no. 8, Roll
No.113316) has acquired the qualification of M.A. in Personnel
Management & Industrial Relation (PMIR) from the Patna
University; Neelmani Jaiswal (petitioner no. 9, Roll No.100217)
has acquired the qualification of M.A. in Personnel Management
& Industrial Relation (PMIR) from the Alagappa University,
Karaikudi; Nishant Kumar (petitioner no. 10, Roll No.108728)
has acquired the qualification of Post Graduate Diploma in Rural
Management from the Institute of Rural Management, Anand;
Abhishek Kumar (petitioner no. 11, Roll No.105212) has
acquired the qualification of Master in Forestry Management
from Indian Institute of Forest Management, Bhopal;
Kanchaneswar Srivastava (petitioner no. 12, Roll No.106389)
has acquired the qualification of Post Graduate Programme in
Management (PGPM Finance +HR) from Institute of
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
Management & Technology (IMT), Ghaziabad; Rajan Kumar
Giri (petitioner no. 13, Roll No.114032) has acquired the
qualification of Post Graduate Diploma in Business
Administration from Symbiosis Centre For Distance Learning
(SCDL), Pune; Shashi Ranjan (petitioner no. 14, Roll
No.102867) has acquired the qualification of Post Graduate
Diploma in Industrial Management from the National Institute of
Industrial Engineering, Mumbai.
The writ petitioners qualified in test examination
successfully and their role numbers were/are standing in the
result (Annexure-16). The result shows that selected candidates
were called for verification of their respective certificates of
qualifications and degrees, further stipulates, the result would be
published following the reservation policy of State of Bihar.
In pursuance of that, the writ petitioners submitted
their respective certificates of degrees for verification with an
undertaking from each petitioners that he has been informed that
the decision regarding eligibility of his candidature for Assistant
Manager is kept pending subject to verification of their
respective educational qualifications.
The Magadh University has given the certification that
two years course of Post Graduate of Human Resource
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
Management from Lalit Narayan Mishra Institute of Economic
Development and Social Change, Patna is declared as equivalent
to MBA of Magadh University, Bodh Gaya (Annexure-18).
Similarly, Patna University has given the certification to Manoj
Singh that he has obtained two years Post Graduation degree in
Personnel Management and Industrial Relations and the same is
a full time regular course (Annexure-18/1) and a similar
certification has been given to Md. Nazaruddin that he has
obtained two years Post Graduation degree in Personnel
Management and Industrial Relations, which is a full time
regular course (Annexure-18/2). In the case of Shamsay Alam,
the identical certification has been given that he has obtained two
years Post Graduation degree in Personnel Management and
Industrial Relations, which is a full time regular course
(Annexure-18/3). The Magadh University has issued a letter
dated 23.08.2003 (Annexure-18/4) wherein it has been
mentioned that permission has been given by the University to
name the course of Master of PMIR as Master of Human
Resource Management from sessions 2000-2001. It has been
mentioned that the same is similar to MBA and MCA certificate.
The Patna University has issued a certificate in favour of
Shamsay Alam that the degree of M.A. in Personnel
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
Management and Industrial Relations may be treated to be
equivalent to the degree of MBA with specialization of Personnel
Management and Industrial Relations or Human Resource
Management (Annexure-18/5). Alagappa University has issued a
equivalent certificate in favour of Neelmani Jaiswal that the
degree of M.A. in Personnel Management and Industrial
Relations awarded to him/her is equivalent to the degree of MBA
(Human Resource Management) (Annexure-18/6). The Institute
of Management and Technology, Centre for Distance Learning
Ghaziabad issued a certificate in favour of Kanchaneswar
Srivastava that he has done his three years PGPM (MBA Level)
course through distance learning mode, recognized by the
Distance Education Council, Government of India (Annexure-
18/7). Similarly, Symbiosis Centre for Distance Learning has
issued a certificate in favour of Rajan Kumar Giri that he has
done his Post Graduate Diploma in Business Administration
(PGDBA) (Annexure-18/8). The National Institute of Industrial
Engineering has issued a certificate in favour of Shashi Ranjan
Kumar that he was a student of two years full time Residential
Post Graduate Diploma in Industrial Management (PGDIM)
Programme and this programme is approved by AICTE and
accredited by NBA, AICTE (Annexure-18/9).
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
The writ petitioners have brought a list of approved
institutions from where they have acquired the qualification has
been shown to be approved institution like the Institute of Rural
Management, Anand.
The Association of Indian Universities has issued a
letter dated 13.06.2015 to Nishant Kumar (writ petitioner no.10)
wherein it has been mentioned that two years Post-graduate
Diploma in Rural Management offered by Institute of Rural
Management, Anand is Post-graduate Programme in Rural
Management during the year 2008-10. The Association of Indian
Universities has already accorded equivalence to the two year
full time Postgraduate Programme in Rural Management to the
Institute of Rural Management, Anand with MBA Degree (Rural
Management) of an Indian University. The candidate having
pursued Postgraduate Programme from the Institutes approved
by AICTE, whose programme have been equated by AIU are
eligible to enroll themselves for Ph.D Programme at Indian
Universities/ employment.
Further, the writ petitioners have brought a list of
universities which have been allowed to offer approved
programmes through distance mode during academic year 2015-
16 by the University Grants Commission in which the Institute
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
of Management Technology, Ghaziabad having been recognized
by the University Grants Commission. Similarly, Symbiosis
Centre for Distance Learning has also been granted recognition.
A letter of University Grants Commission dated
14.10.2013 has been brought on the issue of equivalence of the
degree awarded by the Open and Distance Learning Institutions
at par with conventional Universities/Institutions wherein
paragraph 4 of the said letter shows that the Government of
India, in exercise of power conferred under section 20 (1) of
UGC Act, 1956 issued directions dated 29th December, 2012
entrusting UGC with the responsibility of regulating higher
education programme in open and distant learning.
Consequently, Universities/ Institutions desirous of offering any
programme through distant mode would require recognition of
UGC and finally view has been taken that the
Degrees/Diplomas/Certificates awarded for programmes
conducted by the Open and Distant Learning (ODL) institutions
recognized by DEC (erstwhile) and UGC in conformity with
UGC Notification on specification of Degrees should be treated
as equivalent to the corresponding awards of the
Degree/Diploma/Certificate of the traditional Universities/
Institutions in the country and on that basis, the writ petitioners
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
are claiming the right to be appointed to the post of Assistant
Manager.
The Bihar State Food and Civil Supplies Corporation
Limited (appellant herein) issued a list of selected candidates
classified (Annexure-19) in four parts; Class (i) and (ii) have
been found to be eligible to be appointed and they have been
finally selected, but the writ petitioners and others fall in Class
(iii) and their matters was kept for enquiry and consideration,
directed the candidates to produce the original documents and
certificates and, ultimately, after verification of the certificates by
the Committee constituted by the Corporation, recorded in the
meeting dated 30.08.2016 that they are claiming that the degrees
are equivalent to the qualification mentioned in the
advertisement and requested the Corporation to take decision
accordingly.
From the records, it appears that the writ petitioners
had approached this Court by filing CWJC No.17093 of 2016
with analogous cases and finally, the Court vide order dated
24.03.2017 directed for fresh consideration in the light of
observation made in that order. It will be relevant to quote
relevant portion of the said order :-
"The discussion above in reference to
the qualifications held by these petitioners confirm
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
that these courses have been treated akin to a MBA
degree or a Diploma in Business Management.
As I have already expressed since the
respondent Corporation themselves have accepted
the certification by the Banaras Hindu University
as to the equivalence of a course on the basis of
restructuring and have offered appointment on that
post, the certification received by these petitioners
through their University/Institution well deserves a
consideration. In my opinion, it is the substance of
a course which is to be a guiding factor for such
consideration even if there may be a variance in the
nomenclature of the course but a mere difference
in nomenclature, cannot be a foundation nor can
form any basis for exclusion of a candidate from
consideration rather it is the utility aspect of the
matter and whether the course attended by the
applicant satisfies the requirement of the post on
which this applicants are to be appointed, which
normally should be a guiding factor. The choice is
entirely with the Corporation and since
demonstrably they have deviated in the matter by
opening up to the other qualification(s) as well
which are at variance with the advertisement, either
by referring to the restructuring order or the
certification by the concerned University as relied
upon by Mr. Sahay in reference to Annexure H/1
and H/2 to C.W.J.C.no17093 of 2016 as well as
Annexure-4 to the second writ petition, a similar
certification possessed by these petitioners obtained
from the institutions attended by these petitioners,
would also require a similar consideration before a
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
final decision is taken by the Corporation on the
issue.
As I have already indicated at the outset
it is the discretion of the employer alone as to the
utility of the person concerned based on the
qualification possessed by him which has to be the
determining factor and in my opinion the
authorities of the Corporation need not get swayed
by the nomenclature of the qualification so long as
the qualification possessed by any candidate
satisfies their requirements.
In the circumstances so discussed I
deem it proper to dispose of the writ petition with
the direction to the Managing Director of the
corporation to consider the case of these petitioners
afresh and in the light of the observation made
hereinabove and pass appropriate orders in
accordance with law preferably within six weeks
from the date of receipt/production of a copy of this
order.
The writ petitions are disposed of accordingly".
Whereafter the Corporation has reconsidered the case
of the writ petitioners as per the direction issued by this Court,
refused to hold that their respective degrees are at par with the
qualification mentioned in the advertisement or it is equivalent to
the said degree. Thereafter, writ petitioners have challenged that
order successfully and the learned Single Judge has set aside the
impugned order, which is under challenge before this Court by
the appellant Corporation.
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
The appellants have raised the issue for consideration
that in exercise of power conferred under Article 226 of the
Constitution of India, the Court would refrain to go into the issue
of equivalence on the basis of course of study provided by the
University. The game of the rule prevailing on the date of
advertisement will be applicable till the final selection is not
completed and, in the midway, the rule of game cannot be
changed. If the illegality has been committed by the officers of
the appellants, that cannot be allowed to be perpetuated, but the
remedial measures may be taken.
It has further been submitted that the Selection
Committee does not have a power and jurisdiction to relax the
qualification mentioned in the advertisement. Making an
appointment on the basis of inferior qualification on the theory of
equivalence is fraud on the public and the direction to consider
the matter of the writ petitioners on the basis of equivalence of
certificates will not be appropriate for this Court in exercise of
judicial review to issue a mandamus to appoint a person having
such qualification, which is not mentioned in the advertisement.
In support of such submissions, he has placed reliance on the
following judgments :
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
1. 2019 (3) PLJR (SC) 457 (Zonal Manager, Bank of
India & Ors. Vs. Aarya K. Babu & Anr.) (Paras 5, 10, 11, 14 and
15)
2. 2019 (3) PLJR 915 (Jitendra Kumar & Ors. Vs. The
State of Bihar and Ors.) (Paras 1 and 5)
3. (1995) 6 SCC 1 (Dr. Krushna Chandra Sahu and
Others Vs. State of Orissa and Others) (Paras 34 to 38)
4. 2015 (1) PLJR 849 (The State of Bihar Vs. Sri
Krishna Prasad) PLJR 849 (Paras 10, 12, 13 & 23)
And emphasis has been given to the judgments
reported in 2014 (3) SSC 767 (Ganapath Singh Gangaram
Singh Rajpur Vs. Gulbarga University and Ors.) (Paras 21, 22
& 23) & 2019 (3) PLJR 951 (Jitendra Kumar & Ors. Vs. The
State of Bihar and Ors.) (Para 5) wherein the issue was involved
whether the person holding the degree of M.A. in Mathematics
will be said to be the proper qualification of Lecturer for MCA.
Further, he has placed reliance on the following
judgments :
1. AIR 1990 SC 405 (P. Mahendran and others Vs. State
of Karnataka and Others (Paras 4, 5 & 11)
2. (2011) 3 SCC 436 ( State of Orissa and another Vs.
Mamata Mohanty)(Paras 59 to 62)
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
3. (1984) 2 SCC 141 (P.K. Ramachandra Iyer v. Union of
India) (Paras 30 and 31)
4. (2006) 3 SCC 674 (A.P. SRTC and Ors. Vs. G.
Srinivas Reddy and Others) (Paras 14, 15, 16, 18 & 20)
5. AIR 1974 SC 1631 (Mohammad Shujat Ali and
others Vs. Union of India and Others) (Para 13)
The letter no.12677 dated 14.12.2017 (Annexure-31),
comprising names, reflects that some of the writ petitioners have
been treated to possess the equivalent degree.
To adopt the modus of least resistance, counsel for the
respondents submits that the institutions, from where the
petitioners-respondents have acquired their qualification, have
either been recognized by AICTE or by the UGC. It has been
emphasized that their course of study was for two years and
whereafter they have been granted the degrees. The question of
equivalence would arise only when persons who are holding the
degree from an institution which has not obtained the recognition
by AICTE or UGC as the prescribed qualification in the
advertisement as MBA/PGDBM. In nutshell, the petitioners-
respondents are claiming that their qualification is identical or
same to the degree of MBA or PGDM (PGDBM). Details of
respondents' degrees and qualifications have already been
mentioned hereinabove, so it does not require any repetition.
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
It has further been submitted that the decision of
AICTE dated 28.11.2006, which has been mentioned in the
Annual Report of 2006-2007, furnishes the information with
regard to standardization of nomenclature of programmes and the
decision dated 12.12.2006 mentions that every two year full time
regular management programme will be referred to as PGDM
and another every two year full time sector/function focused
management programme will be referred to as PGDM, in
parenthesis the focus or sector would be mentioned. For
example, programmes focused on Finance, Marketing would be
mentioned as PGDM (Finance), PGDM (Marketing) respectively
and a sector programme in Energy Management would be
mentioned as PGDM (Energy Management). So, on that basis, he
claims that all persons have obtained the degree in which two
years full time programme was provided and, as such, there may
be a different nomenclature, but, in fact, they are holding the
degree of PGDM, which is the qualification mentioned in the
advertisement for being appointed as Assistant Manager. So, the
claim of the appellants that they do not hold the qualification or
its equivalence is completely erroneous and requires to be
interfered by this Court and a direction for their appointment
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
may be issued as the vacancies of the Assistant Manager are still
available.
Further, it has been submitted that they have appointed
certain candidates, still they are working, are not holding the
qualification as prescribed and mentioned in the advertisement,
but treating them to be an equivalent to the qualification they
have been appointed and the claim of the writ petitioners-
respondents has wrongly been rejected holding that they do not
have the requisite qualification as mentioned in the
advertisement and he has pointed out the name of certain persons
showing that if they can be adjusted and appointed, in that
circumstances, the writ petitioners do have a right to be
accommodated as Assistant Manager.
Counsel for the writ-petitioners (respondents herein)
has placed reliance on the judgment reported in (2013) 8 SCC
287 explaining the status of UGC vis-a-vis AICTE, has
submitted that the approval of AICTE is not mandatory
requirement, but in the event, the institution does not maintain
standard, AICTE will inform UGC to take action against that
Institution. It is the UGC, which will at liberty to take
appropriate action.
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
The power of Judicial Review on the issue of
equivalence of Degree.
In the case of Mohammad Shujat Ali and others Vs.
Union of India and Others reported in AIR 1974 SC 1631, one
of the question has been dealt with with regard to equivalence of
the qualification as to whether the Court does have expertise or
the power to evaluate and assess two qualifications and record a
finding with regard to equivalence of the qualifications. The
Hon'ble Supreme Court has 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 does not have such skill
to decide the equivalence of two educational qualifications. It
will be proper to quote paragraph 13 of the said judgment :-
"13. This contention has been
adequately dealt with in the judgment given by the
Division Bench of the Andhra Pradesh High Court
on February 23, 1968 in Writ Petition No. 645 of
1967 and other allied petitions and the judgment
of the Full Bench impugned in these appeals. We
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
are substantially in agreement with the reasons
which have weighed with the Division Bench and
the Full Bench in rejecting this contention. It must
be noted 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.
It is only where the decision of the Government is
shown to be based on extraneous or irrelevant
considerations or actuated by mala fides or
irrational and perverse or manifestly wrong that
the Court would reach out its lethal arm and strike
down the decision of the Government. Here in the
present case it cannot be said that the view taken
by the Government of Andhra Pradesh that US
and OCE certificates of the Osmania Engineering
College were not equivalent to US or OCE diploma
of the College of Engineering, Guindy or LCE,
LME or LEE diplomas of any other recognised
institution suffered from any of these infirmities. It
was based on the recommendation of an expert
high powered body like the State Board of
Technical Education consisting of distinguished
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
administrators, educationists and technical experts
against whom nothing could be alleged on behalf
of the petitioners/appellants. The State Board of
Technical Education included inter alia principals
of different engineering colleges in the State, the
Secretary of the Regional Committee of the All-
India Committee on Technical Education, retired
Chief Engineers as also Chief Engineers in office
who would be expected to be familiar with the
academic standards and practical content of the
different qualifications and the decision taken by
the Government of Andhra Pradesh on the basis of
the recommendation of the State Board of
Technical Education could not be regarded as
unreasonable or perverse or manifestly wrong nor
could it be said to be mala fide or based on
extraneous or irrelevant considerations. Indeed,
the Government of Andhra Pradesh could not do
better than rely on the recommendation of the
State Board of Technical Education. The Full
Bench as well as the Division Bench of the Andhra
Pradesh High Court have in fact shown in their
respective judgments, on a comparison of the
duration and content of the respective courses,
that US and OCE certificates of the Osmania
Engineering College were, both from the point of
view of academic learning as also from the point
of view of practical experience, inferior to US or
LCE diploma of the College of Engineering,
Guindy or LCE, LME or LEE diploma of any
other recognised institution. It may also be pointed
out that even in the erstwhile State of Hyderabad
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
itself, US and OCE certificates of the Osmania
Engineering College were not treated on a par
with LCE, LME or LEE diploma. Firstly, an
Overseer holding US or OCE certificates of the
Osmania Engineering College was required to put
in at least six years' service before he could be
eligible for promotion as Supervisor while a Sub-
Overseer holding LCE or LME diploma did not
have to put in any minimum qualifying service for
the purpose of promotion as Supervisor. Secondly,
US or OCE certificate of the Osmania
Engineering College was regarded as sufficient
qualification only for Recruitment to the post of
Sub-Overseer, while LCE or LME diploma
qualified for recruitment not only to the post of
Sub-Overseer but also to the posts of Supervisor. It
is, therefore, not possible to overturn the decision
of the Government of Andhra Pradesh denying
equivalence of US and OCE certificates of the
Osmania Engineering College with LCE, LME or
LEE diplomas. It may be noted that the Central
Government also affirmed the decision of the
Government of Andhra Pradesh by its letter dated
March 17, 1966. Even if it be assumed that the
Central Government had the exclusive power
under the States Reorganisation Act, 1956 to bring
about integration of services in the reorganised
State of Andhra Pradesh, this decision of the
Central Government contained in the letter dated
March 17, 1966 is sufficient to meet the
requirement of the statute and it must be upheld
for the same reasons as the decision of the
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
Government of Andhra Pradesh. There was a
further ground of attack levelled against the
decision of the Central Government, albeit, faint-
heartedly, and that was that the decision of the
Central Government was arrived at solely on the
basis of the communication dated January 9, 1965
addressed by the Additional Secretary to the
Government of Andhra Pradesh to the Secretary to
the Government of India, Ministry of Home
Affairs without giving any opportunity to the non-
graduate Supervisors from the erstwhile
Hyderabad State to put forward their case. This
charge is plainly unsustainable as it is evident
from para 9 of the affidavit dated July 27, 1970
filed by K.P. Singh, Under Secretary to the
Government of India, Ministry of Home Affairs in
reply to Writ Petition No. 385 of 1969, and it can
hardly be disputed, that the representations made
by the non-graduate Supervisors from the
erstwhile Hyderabad State against the decision of
the Government of Andhra Pradesh contained in
the Order dated October 3, 1960 were forwarded to
the Central Government and it was after giving
due consideration to these representations on the
basis of the recommendations of the Advisory
Board which consisted of experts, that the Central
Government affirmed the decision of the
Government of Andhra Pradesh by its letter dated
March 17, 1966. The present contention of the
petitioners/appellants must, therefore, be rejected".
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
In the case of P.K. Ramchandra Iyer and Ors. Vs.
Union of India reported in AIR 1984 Supreme Court 541, the
matter was related to granting the upgraded scale attached to the
post of Professor which was not given while on the other hand
new incumbents recruited in the newly created posts were
awarded the revised scale, that led to the disturbance in the inter
se seniority in the cadre of Professors. The Hon'ble Court has
considered the essential qualification of experience and it has
been held that the period spent in preparing thesis in acquiring
the qualification of M.Sc. cannot be taken into consideration as
an experience in which the claim was made and cannot be
granted relaxation of essential qualification under the heading of
experience. The High Court has granted the relaxation, but the
Hon'ble Supreme Court did not uphold an appointment of a
person to suit essential qualification, the essential qualification
was amplified by providing an irrelevant additional
qualification, yet he failed to qualify for the same by resorting to
the power of relaxation and also held that the Selection
Committee had no power to grant relaxation of qualification
pertaining to experience and the Hon'ble Court has held that for
the post of Senior Biochemist, there were others who fulfilled all
essential qualification and one was left to speculate the reasons
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
which weighed with the Selection Committee to reject them and
to select a person who did not fulfil the essential qualification
for such a post as Senior Biochemist, claiming non-existent
power to relax the qualification and the Hon'ble Court has held
that the Committee comprised of experts and they were highly
qualified persons who would be able to evaluate and assess the
relative merits of each of the candidates and the Court held that
as the power lies in the ICAR to appoint a person and the Court
should not usurp that power merely because it would have
chosen a different person as better qualified. The Court must
look with respect upon the performance of duties by experts in
the respective fields. It has been held that once the Committee
does not have the power to relax the qualification pertaining to
experience, the entire process of selection was in contravention
of the established norms. It will be proper to quote relevant part
of paragraph 31 of the said judgment :-
"31. .....Once it is most satisfactorily
established that the Selection Committee did not
have the power to relax essential qualification
pertaining to experience, the entire process of
selection of the 6th respondent was in
contravention of the established norms prescribed
by advertisement and power of the Selection
Committee and procedure of fair and just selection
and equality in the matter of public employment
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
and to rectify resultant injustice and establish
constitutional value this Court must interfere".
In the case of Dr. Krushna Chandra Sahu and
Others Vs. State of Orissa and Others reported in (1995) 6
SCC 1, the matter related to recruitment of Junior Teachers in
Orissa State Homeopathic Medical Colleges and one of the point
came for consideration the power and function of Selection
Board and Hon'ble the Supreme Court has held that the
Selection Board has to work within the frame of the Rule and at
the guidelines and regulations, the qualification has to be fixed
by the executive. The Selection Board do not have the power or
jurisdiction to add, amend or modify or give relaxation to the
qualification as this does not lie in its domain. The basic power
is to select the candidate and the Selection Committee or the
Board does not have jurisdiction to prescribe the minimum
marks which a candidate had to secure at the viva voce test. The
Selection Body cannot sit over the mode of recruitment and
category from which recruitment should be made as these are
the matters of policy, falling exclusively within the purview of
the executive. In absence of Rule, the executive instruction will
provide the guideline and condition and eligibility for selection
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
of a candidate. It is proper to quote paragraph nos. 33, 34, 35 &
36 of the said judgment :-
"33. The members of the Selection
Board or for that matter, any other Selection
Committee, do not have the jurisdiction to lay
down the criteria for selection unless they are
authorised specifically in that regard by the Rules
made under Article 309. It is basically the function
of the rule-making authority to provide the basis
for selection. This Court in State of A.P. v. V.
Sadanandam [1989 Supp (1) SCC 574 : 1989 SCC
(L&S) 511 : (1989) 11 ATC 391] observed as
under: (SCC pp. 583-84, para 17)
"We are now only left with the
reasoning of the Tribunal that there is no
justification for the continuance of the old rule
and for personnel belonging to other zones being
transferred on promotion to offices in other zones.
In drawing such conclusions, the Tribunal has
travelled beyond the limits of its jurisdiction. We
need only point out in the case of Mohammad
Shujat Ali and others Vs. Union of India that
the mode of recruitment and the category from
which the recruitment to a service should be made
are all matters which are exclusively within the
domain of the executive. It is not for judicial
bodies to sit in judgment over the wisdom of the
executive in choosing the mode of recruitment or
the categories from which the recruitment should
be made as they are matters of policy decision
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
falling exclusively within the purview of the
executive."
34. The Selection Committee does not
even have the inherent jurisdiction to lay down the
norms for selection nor can such power be
assumed by necessary implication. In P.K.
Ramachandra Iyer v. Union of India [(1984) 2
SCC 141 : 1984 SCC (L&S) 214 : (1984) 2 SCR
200] , it was observed: (SCC pp. 180-81, para 44)
"By necessary inference, there was no
such power in the ASRB to add to the required
qualifications. If such power is claimed, it has to
be explicit and cannot be read by necessary
implication for the obvious reason that such
deviation from the rules is likely to cause
irreparable and irreversible harm."
35. Similarly, in Umesh Chandra
Shukla v. Union of India [(1985) 3 SCC 721 : 1985
SCC (L&S) 919 : 1985 Supp (2) SCR 367] , it was
observed that the Selection Committee does not
possess any inherent power to lay down its own
standards in addition to what is prescribed under
the Rules. Both these decisions were followed in
Durgacharan Misra v. State of Orissa [(1987) 4
SCC 646 : 1988 SCC (L&S) 36 : (1987) 5 ATC 148
: (1987) 2 UJ (SC) 657] and the limitations of the
Selection Committee were pointed out that it had
no jurisdiction to prescribe the minimum marks
which a candidate had to secure at the viva voce.
36. It may be pointed out that rule-
making function under Article 309 is legislative
and not executive as was laid down by this Court
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
in B.S. Yadav v. State of Haryana [1980 Supp SCC
524 : 1981 SCC (L&S) 343 : AIR 1981 SC 561] .
For this reason also, the Selection Committee or
the Selection Board cannot be held to have
jurisdiction to lay down any standard or basis for
selection as it would amount to legislating a rule
of selection".
One of the point has been taken by the appellants that
in the Advertisement the qualification has been mentioned as
MBA/PGDBM and if a candidate fails to satisfy the eligibility
qualification, his candidature cannot be considered. The
condition imposed in the advertisement cannot be diluted nor
consideration would be made on the factor of equivalence of that
qualification. It has to be seen that as to whether the Writ Court
while exercising power of judicial review can rewrite the
condition mentioned in the advertisement as fixing of the
qualification and condition of appointment lies within the
domain of the employer and once the rule of game has been
fixed, it cannot be changed in the midway in the sense that the
qualification cannot be diluted and cannot be tested in terms of
equivalence unless advertisement so provides or there is
statutory provision or rule mentioned in the recruitment rules as
in the recent judgment in the case of Zonal Manager, Bank of
India & Ors. Vs. Aarya K. Babu & Anr reported in 2019 (3)
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
PLJR (SC) 457, the identical question came for consideration. In
that case, the matter related to recruitment on the post of
Agriculture Field Officer (Scale I) and the qualification was
fixed that the candidate must be a Graduate possessing the
degree of Agro-Forestry. In that case the respondent Aarya K.
Babu had secured four years degree in Forestry, which was the
basis for claiming the equivalence to that qualification
mentioned in the advertisement. For that consideration, the
Hon'ble Supreme Court held that 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 and further in that case, it
has been held that when the qualification has been specially
mentioned in the advertisement, that cannot be substituted or
modified by another qualification that too in the midstream of
selection on the principle that when the selection process is
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
started, the rule prescribing qualification has been mentioned,
cannot be changed before the recruitment process is completed.
It will be proper to quote paragraph nos. 12, 13, 14, 15 & 16 of
the said judgment :-
"12. The learned counsel for the private
respondents however contended that the High
Court was justified in taking note that the course
for degree in BSc (Agro-Forestry) was not being
imparted in the country and in such event the very
notification seeking for candidates possessing 4-
year degree in BSc (Agro-Forestry) was erroneous
and as such the degree in BSc (Forestry) should be
considered. The learned counsel seeks to rely upon
the Bank of India (Officers) Service Regulations,
1979 to contend that in Clause 16.9 thereof a
reference is made to "Special Officers" wherein it
is indicated that one of the category therein being
"Agriculture Officers", the qualification
thereunder indicated is degree in Agriculture
and/or allied subjects and
recruited/promoted/converted as such. In that view
the learned counsel contends that as per the
information furnished by ICAR dated 1-4-2015 the
definition of "Agriculture" would include
"Forestry" and in such event it will have to be
construed that even though the notification seeks
for candidates possessing degree in BSc (Agro-
Forestry) it would include BSc (Forestry) which is
an allied subject of Agriculture.
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
13. 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.
14. In fact, this view is fortified by the
decision of this Court in the case of Mohd. Sohrab
Khan v. Aligarh Muslim University & Ors., (2009)
4 SCC 555 relied on by the learned counsel for the
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
appellant. In the said decision it is held as
hereunder:
"24. According to us, the Selection
Committee as also the University changed the rule
in the midstream which was not permissible. The
University can always have a person as a Lecturer
in a particular discipline that it desires to have, but
the same must be specifically stated in the
advertisement itself, so that there is no confusion
and all persons who could be intending candidates,
should know as to what is the subject which the
person is required to teach and what essential
qualification the person must possess to be suitable
for making application for filling up the said post.
25. We are not disputing the fact that in
the matter of selection of candidates, opinion of the
Selection Committee should be final, but at the
same time, the Selection Committee cannot act
arbitrarily and cannot change the
criteria/qualification in the selection process during
its midstream. Merajuddin Ahmad did not possess a
degree in Pure Chemistry and therefore, it was
rightly held by the High Court that he did not
possess the minimum qualification required for
filling up the post of Lecturer in Chemistry, for
Pure Chemistry and Industrial Chemistry are two
different subjects.
26. The advertisement which was issued
for filling up the post of Lecturer in Chemistry
could not have been filled up by a person belonging
to the subject of Industrial Chemistry when the
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
same having been specifically not mentioned in the
advertisement that a Master's degree-holder in the
said subject would also be suitable for being
considered. There could have been intending
candidates who would have applied for becoming
candidate as against the said advertised post, had
they known and were informed through
advertisement that Industrial Chemistry is also one
of the qualifications for filling up the said post.
27. The Selection Committee during the
stage of selection, which is midway could not have
changed the essential qualification laid down in the
advertisement and at that stage held that a Master's
degree-holder in Industrial Chemistry would be
better suited for manning the said post without
there being any specific advertisement in that
regard. The very fact that the University is now
manning the said post by having a person from the
discipline of Pure Chemistry also leads to the
conclusion that the said post at that stage when it
was advertised was meant to be filled up by a
person belonging to Pure Chemistry stream.
If the above decision is kept in
perspective it is clear that while examining the
correctness of the action of the employer what
would be sacrosanct will be the qualification
criteria published in the notification, since if any
change made to the qualification criteria
midstream is accepted by the Court so as to benefit
only the petitioners before it, without making it
open to all the qualified persons, it would amount
to causing injustice to the others who possess such
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
qualification but had not applied being honest to
themselves as knowingly they did not possess the
qualification sought for in the notification though
they otherwise held another degree. Therefore, if
there is any change in qualification/criteria after
the notification is issued but before the completion
of the selection process and the employer/recruiting
agency seeks to adopt the change it will be
incumbent on the employer to issue a corrigendum
incorporating the changes to the notification and
invite applications from those qualified as per the
changed criteria and consider the same along with
the applications received in response to the initial
notification. The same principle will hold good
when a consideration is made by the Court.
15. If in that background the instant
facts are taken note, it would disclose that the
notification depicting the qualification required as
degree in BSc (Agro-Forestry) was issued on 17-11-
2014 and the process of selection had come to an
end when the private respondents herein were
issued the appointment letters dated 17-9-2015 and
29-5-2015 respectively. Admittedly as on such date
the notification required the candidates possessing
BSc (Agro-Forestry) but the private respondents
were graduates in BSc (Forestry) and as such were
not qualified to respond. The change was made
subsequent thereto by the general corrigendum
dated 16-1-2016 by including the qualification of
BSc (Forestry), which would be effective from that
day by providing opportunity to all those holding
that qualification. Therefore, in such cases the
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
change of qualification whereby the qualification
of the private respondents gets included
subsequently cannot enure to their benefit alone
when several others who could have applied were
prevented from doing so.
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".
The same issue came for consideration before this
Court in the case of Jitendra Kumar & Ors. Vs. The State of
Bihar and Ors. reported in the same volume i.e. 2019 (3) PLJR
915. In that case, the matter was related to recruitment to the post
of Assistant Professor in Botany and Zoology in which the
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
candidates raised a grievance that they have done their degree in
Life Sciences which includes the aforesaid subjects and,
therefore, the definition is inclusive. They were claiming
equivalence of qualification as the candidate was possessing, but
this plea was rejected on the ground that when the qualification
has been made in the advertisement, it cannot be substituted and
modified at the subsequent stage either by recruiting agency or
the Court. Dealing with the said subject, this Court has placed
reliance on the judgment rendered in the case of Reshamlal
Pradhan Vs. State of Chhattisgarh Public Service Commission
in Writ Petition (S) No. 3169 of 2015 wherein all the previous
judgments have been taken into consideration and finally arrived
to the finding that equivalence of educational qualification is
purely a technical academic matter and it has to be done by
appropriate authority/ expert body that too by specific order duly
published prior to initiation of recruitment process and refused to
grant the relief on the plea of equivalence of qualification. It will
be proper to quote paragraph 5 of the said judgment :-
"5. We have considered the submissions raised at
length and what we find is that this Court in the
exercise of jurisdiction under Article 226 of the
Constitution of India could not have assumed an
equivalence of curriculum for the purpose of
equating the qualifications possessed by the
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
appellants with that as required under the
advertisement. It is for the expert body, i.e., either
the employer or the Commission to take a decision
in the matter for deciding such an equivalence. We
have come across the judgment of a learned Single
Judge of the High Court of Chhatisgarh in Writ
Petition (S) No.3169 of 2015 (Reshamlal Pradhan
Vs. State of Chattisgarh and Chattisgarh Public
Service Commission) where the learned Single
Judge traversed the entire law laid down by the
Apex Court on this issue. The same is extracted
hereinunder which we adopt to support our
conclusion hereinabove:-
15. Meaning of "relevant subject" for
appointment on a post with reference to eligibility
condition for recruitment came to be considered by
Their Lordships of the Supreme Court in the matter
of Ganapath Singh Gangaram Singh Rajput v.
Gulbarga University represented by its Registrar
and others (2014) 3 SCC 767, in which Their
Lordships have answered the question holding that
post-graduate degree in "relevant subject" in the
context would mean post-graduate degree in which
the candidate has applied for recruitment to teach a
particular subject and observed in paragraphs 21
and 22 as under: -
"21. As is evident from the
advertisement, applications were invited for filling
up various posts in different subjects including the
post of Lecturer in MCA. The advertisement
requires post-graduate degree in the 'relevant
subject'. The relevant subject would, therefore, in
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
the context of appointment to the post of Lecturer,
mean postgraduate degree in MCA. In our opinion,
for appointment to the post of Lecturer, Masters
degree in the Mathematics is not the relevant
subject. The advertisement requires Masters degree
in the 'relevant subject' and not 'appropriate
subject'. In the present case, the Board of
appointment has not stated that post-graduate
degree in Mathematics is the relevant subject for
MCA but in sum and substance it is equivalent to a
post-graduate degree in MCA for the reason that
Mathematics is one of the subjects taught in MCA.
This, in our opinion, was beyond the power of the
Board of appointment. 22. It shall not make any
difference even if Mathematics is taught in the
Masters of Computer Application course. The
learned Single Judge, in our opinion, gravely erred
in upholding the contention of Ganpat and the
University that 'relevant subject' would mean 'such
of those subjects as are offered in the MCA course'.
If Mathematics is taught in a post-graduate course
in Commerce, a Masters degree in Commerce
would not be relevant for appointment in
Mathematics or for that matter in MCA. There may
be a situation in which Masters degree in MCA is
differently christened and such a degree may be
considered relevant but it would be too much to say
that a candidate having postgraduate degree in any
of the subjects taught in MCA would make the
holders of a Masters degree in those subjects as
holder of Masters degree in Computer Application
and, therefore, eligible for appointment."
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
16. In a very recent decision in the
matter of Prakash Chand Meena and others v.
State of Rajasthan and others (2015) 8 SCC 484, a
question of equivalence of two qualifications which
may be treated as equivalent came up before the
Supreme Court in which Their Lordships of the
Supreme Court have held that in the matter of
eligibility qualification, equivalent qualification
must be recognized as such in existing recruitment
rules or government order existing on or before the
initiation of recruitment process and observed as
under: -
"... In the matter of eligibility
qualification, the equivalent qualification must be
recognised as such in the recruitment rules or
government order existing on or before the
initiation of recruitment process..."
17. Similarly, in the matter of Guru
Nanak Dev University v. Sanjay Kumar Katwal and
another (2009) 1SCC 610, Their Lordships of the
Supreme Court have held in no uncertain terms
that equivalence is a technical academic matter and
decision on question of equivalence must be by
specific order or resolution duly published, by
holding as under:-
"15. ...Equivalence is a technical
academic matter. It cannot be implied or assumed.
Any decision of the academic body of the university
relating to equivalence should be by a specific
order or resolution, duly published. The first
respondent has not been able to produce any
document to show that the appellant University has
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
recognised MA (English) (OUS) of Annamalai
University through distance education as
equivalent to MA of appellant University. Thus, it
has to be held that the first respondent does not
fulfill the eligibility criterion of the appellant
University for admission to the three year law
course."
18. Further, it is well settled law that the
question of equivalence of educational
qualification is not the domain and jurisdiction of
the Court under Article 226 or 227 of the
Constitution of India, it has to be done by a body of
academicians or an expert body qualified for that
job, as such, this Court cannot consider and hold
one educational qualification to be equivalent to
other qualifications. In this respect, in umpteen
number of cases the Supreme Court has observed
that it is not within the scope of judicial review to
draw equivalence of qualification. Drawing of
equivalence of qualification is essentially the job of
experts of the field and it is not for the Court to
enter into the arena of comparing two
qualifications on certain parameters and then to
declare equivalence.
19. Way back in the year 1965, in the
matter of University of Mysore v. C.D. Govinda Rao
and another A.I.R. 1965 SC 491, in Constitution
Bench judgment Their Lordships of the Supreme
Court have held that in the academic matters
regarding equivalence of university degree the
Courts will not express a definite opinion.
Paragraph 12 of the report states as under:-
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
"12. Where one of the qualifications for
the appointment to the post of a Reader in the
University was that the applicant should possess a
First or High Second Class Master's Degree of an
Indian University or an equivalent qualification of
a foreign University, the candidate should possess a
First Class Master's Degree of an Indian
University or High Second Class Master's degree of
an Indian University or qualification of a foreign
university which is equivalent to a First Class or a
High Second Class Master's degree of an Indian
University. Whether the foreign degree is
equivalent to a High Second Class Master's degree
of an Indian University is a question relating
purely to an academic matter and courts would
naturally hesitate to express a definite opinion,
specially when the selection Board of experts
considers a particular foreign university degree as
so equivalent".
20. Similar is the proposition of law
rendered by the Constitution Bench of the Supreme
Court in the matter of Mohammad Shujat Ali and
others v. Union of India and others (1975) 3 SCC
76 in which Their Lordships of the Supreme Court
have held that question in regard to equivalence of
educational qualification is a technical question
based on proper assessment by holding as under:-
"13. ... It must be noted 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
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
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. It is only where the
decision of the Government is shown to be based on
extraneous or irrelevant considerations or actuated
by mala fides or irrational and perverse or
manifestly wrong that the Court would reach out its
lethal arm and strike down the decision of the
Government. ..."
21. Similarly in the matter of State of
Rajasthan and others v. Lata Arun (2002) 6 SCC
252, Their Lordships of the Supreme Court have
held that question of equivalence of qualification
are the matters which falls within the realm of the
policy decision to be taken by the State by holding
as under:-
"13. From the ratio of the decisions
noted above, it is clear that the prescribed eligibility
qualification for admission to a course or for
recruitment to or promotion in service are matters
to be considered by the appropriate authority. It is
not for courts to decide whether a particular
educational qualification should or should not be
accepted as equivalent to the qualification
prescribed by the authority."
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
22. Very recently, a Division Bench of
this Court in W.P.(S) No.2992/2015 (Sudhir
Dewangan v. State of Chhattisgarh and others)
decided on 14-9-2015, while examining the issue as
to whether the degree in Electrical Engineering
would be equivalent to the degree in Electrical &
Electronics Engineering, has held as under: -
"... We are in agreement with the
submission on behalf of the State Counsel that the
nomenclature of the two courses being different
there has to be difference in the nature of study and
knowledge imparted in the two disciplines, course
content, qualifications acquired etc. It is not open
for the Court in academic matters to declare
equivalence of courses as may have been advertised
by the employer."
23. Concludingly, equivalence of
educational qualification is purely a technical
academic matter and it has to be done by
appropriate authority / expert that too by specific
order duly published prior to initiation of
recruitment process. Thus, after having examined
the legal position with regard to equivalence of two
qualifications in exercise of jurisdiction under
Article 226 of the Constitution of India, before
proceeding further, it would be appropriate to
notice the query raised by the Commissioner-cum-
Director, Technical Education to the Chairman,
AICTE, in this regard which is as under:-
"(A) Whether a person possessing B.E./
B.Tech. (Information Technology) and M.E./
M.Tech. (Computer Science) is eligible for the post
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
of Assistant Professor/Lecturer (Information
Technology) in Engineering College/Polytechnic.
(B) Whether a person possessing B.E./B.Tech.
(Computer Science) and M.E./M.Tech.
(Information Technology) is eligible for the post of
Assistant Professor/Lecturer (Computer Science) in
Engineering College/Polytechnic."
The same issue came up for consideration before the
Hon'ble Supreme Court in the case of Ganapath Singh
Gangaram Singh Rajpur Vs. Gulbarga University and Ors.
reported in (2014) 3 SCC 767 wherein the appointment has to be
made on the post of Lecturer in MCA for that qualification was
fixed as Master in Computer Application (MCA). The person
was claiming to be equivalent qualification as per the
advertisement made therein as he was M. Sc. in Mathematics and
mathematics is one of the subject in MCA and on that basis,
claim was made to make him eligible for the said post. The
contention was repelled. It has been held that M.Sc. in
Mathematics cannot be said to be equivalent to Master in
Computer Application (MCA) as because of one of the subject
was taught in MCA and when the advertisement speaks and
provides a degree to make him eligible that cannot be modified,
substituted or diluted in the name of equivalence. It will be
proper to quote paragraphs 14, 16, 17, 18 and 19 of the said
judgment :-
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
"14. The main thrust in the appellant's
contention is that when an expert body i.e. the
Board of Appointment consisting of high
academicians, has found Ganpat eligible and
qualified and which has been approved by the
Syndicate, another expert body, the High Court
ought not to have acted as a court of appeal,
examined the pros and cons and come to the
conclusion that Ganpat did not possess the requisite
qualification. There is no difficulty in accepting the
broad submission that academic issues must be left
to be decided by the expert body and the court
cannot act as an appellate authority in such matters.
It deserves great respect. When two views are
possible and the expert body has taken a view, the
same deserves acceptance. However, to say that
expert body's opinion deserves acceptance in all
circumstances and is not subject to judicial review
does not appeal to us. In our constitutional scheme
the decision of the Board of Appointment cannot be
said to be final and absolute. Any other view will
have a very dangerous consequence and one must
remind itself of the famous words of Lord Acton
"power corrupts and absolute power corrupts
absolutely".
16. B.C. Mylarappa deals with the
appointment to the post of Professor, in which one of
the eligibility condition for appointment was "10
years" of experience of postgraduate teaching. The
Board of Appointment considered the selected
candidate eligible by taking into consideration his
experience as Lecturer and Research Assistant and
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
in the absence of any mala fide, this Court observed
that its opinion is not fit to be rejected. This would
be evident from para 24 of the judgment, which
reads as follows: (SCC p. 315).
"24. There is another aspect of this matter
which is also relevant for proper decision of this
appeal. We have already indicated earlier that the
Board of Appointment was constituted with experts
in this line by the University Authorities. They have
considered not only the candidature of the appellant
and his experience as a Lecturer and Research
Assistant along with others came to hold that it was
the appellant who was the candidate who could
satisfy the conditions for appointment to the post of
Professor. Such being the selection made by the
expert body, it is difficult for us to accept the
judgments of the High Court when we have failed to
notice any mala fides attributed to the members of
the expert body in selecting the appellant to the said
post."
However, this judgment cannot be read to
mean that the courts are denuded of the power to
scrutinise the experience in a given case and come to
a contrary conclusion.
17. As stated earlier, when the view taken
by the expert body is one of the possible views, the
same is fit to be accepted. Further, the yardstick
would be different when it concerns eligibility
conditions pertaining to "qualification" and
"experience". In case of experience it is best known
to the expert body in the field in regard to the actual
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
work done and, therefore, its opinion is of higher
degree deserving acceptance ordinarily. Hence, in
our opinion, this judgment did not fetter the power
of the High Court.
18. As regards the decision of this Court
in Rajbir Singh Dalal the same is clearly
distinguishable. In the said case the controversy
which fell for consideration was as to whether public
administration is one of the branches of Political
Science and in the face of the opinion of the expert
body that they are interchangeable, the conclusion
of the High Court that they are distinct and separate
was not approved. This would be evident from the
following passage from the said judgment: (SCC p.
297, paras 45-46)
"45. As has been pointed out by my
learned Brother, the University has in its counter-
affidavit taken a stand that Public Administration is
one of the branches of Political Science and the
Selection Committee comprised of eminent scholars
had rightly chosen the appellant for the post of
Reader after considering his academic achievements
and also relying upon the view of the University
Grants Commission in its letter dated 5-3-1992
stating that the subjects of Political Science and
Public Administration are interchangeable and
interrelated and that a candidate who possesses a
Masters degree in Public Administration is eligible
to be appointed as Lecturer in Political Science.
Similarly, a candidate possessing a Masters degree
in Political Science is eligible for appointment to the
post of Lecturer in Public Administration.
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
46. Despite the aforesaid views expressed
by the expert bodies such as the University and the
University Grants Commission, the High Court has
held Public Administration and Political Science to
be distinct and separate disciplines."
In the present case, there is no such plea.
Here, the plea is that as Mathematics is one of the
subjects in MCA and, therefore, Ganpat possessing
Masters degree in Mathematics is eligible. It is not
the plea of the University that Masters degree in
Mathematics is interchangeable with MCA.
19. Not only this, in Rajbir Singh Dalal,
this Court came to the aforesaid conclusion due to
different eligibility criteria prescribed for
appointment to the post of Reader and Lecturer. It
was pointed out by this Court that in the case of
Reader the requirement was Masters degree in an
"appropriate subject", whereas for appointment as
Lecturer it was "relevant subject". The said case
related to the appointment of Reader. On account of
the use of different expressions, this Court came to
the conclusion that postgraduate degree-holder in
Political Science is eligible to be appointed to the
post of Reader in Public Administration. This would
be evident from paras 48 and 49 of the judgment,
which read as follows: (SCC p. 298)
"48. The recruitment rules followed by the
University clearly indicate that in order to be
appointed as Lecturer in a particular discipline a
candidate must have a postgraduate degree in the
relevant subject. On the other hand, for
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
appointment to the post of Reader such a condition
has not been specified. In fact, in Regulation 2 it has
been generally indicated that no person shall be
appointed to a teaching post in the University or in
any institution, including constituent or affiliated
colleges recognised under the UGC Act, 1956, or any
institution deemed to be a university under Section 3
of the said Act, in a subject, if he/she does not fulfil
the requirement as to the qualifications for the
appropriate subject.
49. In my view, the omission in the
Regulations cannot be said to be unintentional or a
case of casus omissus. In my view, the expression
'appropriate subject' was intended to cover the post
of Reader and once the expert bodies had indicated
that the appellant who held a postgraduate degree in
Political Science was eligible to be appointed to the
post of Reader in Public Administration and had
been rightly appointed to such post, it is normally
not for the courts to question such opinion, unless it
has specialised knowledge of the subject."
(emphasis supplied)
This Court did not say that Political
Science is the relevant subject for appointment as
Lecturer in Public Administration".
Rule of Game cannot be changed in the middle of
the Game.
Another judgment is, in the case of P. Mahendram Vs.
State of Karnataka reported in AIR 1990 SC 405, on this
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
proposition that criteria which has been fixed cannot be changed
retrospectively or in the midway. That matter was related to
appointment of Motor Vehicle Inspector and for that qualification
has been fixed as Diploma in Automobile Engineering or
Mechanical Engineering. The Karnataka Public Service
Commission issued an advertisement for recruitment of 56 posts
of Motor Vehicle Inspectors which was later on increased to 102
posts. The advertisement stipulates recruitment under Rules,
1976 and further stipulates that a candidate for selection must be
holder of Diploma in Automobile Engineering or Mechanical
Engineering. The appellants/petitioners of that case, who were
holding Diploma in Mechanical Engineering along with others
applied for selection to the post of Motor Vehicle Inspectors and
after scrutiny of the applications, interview letter was issued, the
interview was conducted and select list was prepared giving
intimation for their selection and the Government took steps for
imparting them three months training before the appointment to
the Motor Vehicle Inspectors, but in the meantime, the
Government amended the Recruitment Rules omitting the
qualification of Diploma of Automobile Engineering for the post
of Motor Vehicle Inspectors. Consequent to the amendment of
Rules the holders of Diploma of Automobile Engineering
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
became exclusively eligible for appointment to the post of Motor
Vehicle Inspectors and the holders of Diploma in Mechanical
Engineering ceased to be eligible for selection and appointment
to the said post. The question arose that Government could have
done it in midway when the process for selection has been
started and the Hon'ble Supreme Court came to the conclusion
that it is not permissible in law as once the selection process has
been initiated and set the rule of game, that cannot be amended
before its conclusion. It will be relevant to quote paragraphs 5 &
7 of the said judgment :-
"5. It is well settled rule of construction that every
statute or statutory rule is prospective unless it is
expressly or by necessary implication made to have
retrospective effect. Unless there are words in the
statute or in the Rules showing the intention to
affect existing rights the rule must be held to be
prospective. If a rule is expressed in language
which is fairly capable of either interpretation it
ought to be construed as prospective only. In the
absence of any express provision or necessary
intendment the rule cannot be given retrospective
effect except in matter of procedure. The amending
Rules of 1987 do not contain any express provision
giving the amendment retrospective effect nor there
is anything therein showing the necessary
intendment for enforcing the rule with retrospective
effect. Since the amending Rules were not
retrospective, it could not adversely affect the right
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
of those candidates who were qualified for selection
and appointment on the date they applied for the
post, moreover as the process of selection had
already commenced when the amending Rules
came into force, the amended Rules could not
affect the existing rights of those candidates who
were being considered for selection as they
possessed the requisite qualifications prescribed by
the Rules before its amendment moreover
construction of amending Rules should be made in
a reasonable manner to avoid unnecessary
hardship to those who have no control over the
subject matter.
7. In view of the above the appellants'
selection and appointment could not be held as
illegal as the process of selection had commenced
in 1983 which had to be completed in accordance
with law as it stood at the commencement of the
selection. The amended Rule could not be applied
to invalidate the selection made by the Commission.
Strangely the Tribunal did not follow the latest
authority of this Court as laid down in Calton case
[(1983) 3 SCC 33 : 1983 SCC (L&S) 356] , on the
ground that the view taken in that case was
contrary to the Constitution Bench decision of this
Court in State of Andhra Pradesh v. T.
Ramakrishna Rao [(1972) 4 SCC 830] . We have
carefully considered the decision but we do not find
anything therein contrary to the view taken in
Calton case".
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
Another judgment cited by the appellants is (2011) 3
SCC 436 ( State of Orissa and another Vs. Mamata Mohanty)
wherein the matter was related to grant better facility to teachers
and enhance the standard of higher education. The Government
came out with the notification for revised pay scale enforceable
as per the recommendations of UGC, but the notification was
applicable only in such cases where the post has been granted
the benefit of grant-in-aid scheme and person manning that post
had a good academic record i.e. 54% or its equivalent grade in a
Master's course. The matter went to the Hon'ble Supreme Court
and the State has taken a plea that the appointment of Mamta
itself was illegal as wrong procedure was followed, without
publishing the advertisement in newspaper, save and except
affixing the notice on the noticeboard, she was appointed
inasmuch as Mamta did not face the Selection Board as
envisaged by the statutory rules in force at the relevant time. The
Hon'ble Supreme Court has considered several points raised in
what manner the appointment should be made and it has been
held that it should be advertised in newspaper otherwise it will
violate the Articles 14 and 21 of the Constitution of India and
also found that she was not holding the proper educational
qualification. The question for relaxation came up and one of the
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
points raised for consideration of relaxation of qualification. It
has been held that the Selection Committee did not have a power
to relax the essential qualification and the grant of relaxation in
this manner is tantamount to changing the selection criteria after
initiation of selection process, which is not permissible at all.
The rules of the game cannot be changed after the game is over.
It has further been held that the rule of law inhibits arbitrary
action and also makes it liable to be invalidated. Every action of
the State or its instrumentalities should not only be fair,
legitimate and above board, but should be without any affection
or aversion. It should neither be suggestive of discrimination nor
even give an impression of bias, favouritism and nepotism.
Procedural fairness is an implied mandatory requirement to
protect against arbitrary action where statute confers wide
power coupled with wide discretion on any authority. It will be
proper to quote relevant paragraph nos. 42, 43, 44, 45, 46, 47,
48, 51, 59 and 62 of the said judgment :-
"42. In J.P. Kulshrestha (Dr.) v. Allahabad
University [(1980) 3 SCC 418 : 1980 SCC (L&S)
436 : AIR 1980 SC 2141] issue of relaxation of
eligibility came up for consideration before this
Court wherein it was held as under: (SCC pp. 425-
26, paras 15-16)
"15. ... We regretfully but respectfully
disagree with the Division Bench and uphold the
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
sense of high second class attributed by the
learned Single Judge. The midline takes us to 54%
and although it is unpalatable to be mechanical
and mathematical, we have to hold that those who
have not secured above 54% marks cannot claim
to have obtained a high second class and are
ineligible.
16. ... We have earlier held that the
power to relax, as the Ordinance now runs, insofar
as high second class is concerned, does not exist.
Inevitably, the appointment of the 3 respondents
violate the Ordinance and are, therefore, illegal."
43. In Rekha Chaturvedi v. University of
Rajasthan [1993 Supp (3) SCC 168 : 1993 SCC
(L&S) 951 : (1993) 25 ATC 234] this Court again
dealt with the power of relaxation of minimum
qualifications as the statutory provisions
applicable therein provided for relaxation, but to
what extent and under what circumstances, such
power could be exercised was not provided therein.
Thus, this Court issued the following directions:
(SCC p. 176, para 11).
"A. The University must note that the
qualifications it advertises for the posts should not
be at variance with those prescribed by its
Ordinance/Statutes.
B. The candidates selected must be
qualified as on the last date for making
applications for the posts in question or on the
date to be specifically mentioned in the
advertisement/notification for the purpose. ...
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
C. When the University or its Selection
Committee relaxes the minimum required
qualifications, unless it is specifically stated in the
advertisement/notification both that the
qualifications will be relaxed and also the
conditions on which they will be relaxed, the
relaxation will be illegal.
D. The University/Selection Committee
must mention in its proceedings of selection the
reasons for making relaxations, if any, in respect
of each of the candidates in whose favour
relaxation is made.
E. The minutes of the meetings of the
Selection Committee should be preserved for a
sufficiently long time, and if the selection process
is challenged until the challenge is finally disposed
of. An adverse inference is liable to be drawn if the
minutes are destroyed or a plea is taken that they
are not available."
44. In P.K. Ramachandra Iyer v. Union
of India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214
: AIR 1984 SC 541] this Court while dealing with
the same issue, held that once it is established that
there is no power to relax the essential
qualifications, the entire process of selection of the
candidate was in contravention of the established
norms prescribed by advertisement. The power to
relax must be clearly spelt out and cannot
otherwise be exercised.
45. In A.P. Public Service Commission
v. B. Swapna [(2005) 4 SCC 154 : 2005 SCC
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
(L&S) 452] this Court held that: (SCC p. 160, para
15)
"15. Another aspect which this Court
has highlighted is scope for relaxation of norms.
... Once it is most satisfactorily established that
the Selection Committee did not have the power to
relax essential qualification, the entire process of
selection so far as the selected candidate is
concerned gets vitiated."
46. This Court in Kendriya Vidyalaya
Sangathan v. Sajal Kumar Roy [(2006) 8 SCC
671 : (2007) 1 SCC (L&S) 23] held: (SCC p. 675,
para 11)
"11. ... The appointing authorities are
required to apply their mind while exercising their
discretionary jurisdiction to relax the age-limits.
... The requirements to comply with the rules, it is
trite, were required to be complied with fairly and
reasonably. They were bound by the rules. The
discretionary jurisdiction could be exercised for
relaxation of age provided for in the rules and
within the four corners thereof."
47. In Food Corpn. of India v. Bhanu
Lodh [(2005) 3 SCC 618 : 2005 SCC (L&S) 433 :
AIR 2005 SC 2775] this Court held: (SCC p. 628,
para 12)
"12. ... Even assuming that there is a
power of relaxation under the Regulations, ... the
power of relaxation cannot be exercised in such a
manner that it completely distorts the Regulations.
The power of relaxation is intended to be used in
marginal cases.... We do not think that they are
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
intended as an 'open sesame' for all and sundry.
The wholesale go-by given to the Regulations, and
the manner in which the recruitment process was
being done, was very much reviewable as a policy
directive, in exercise of the power of the Central
Government under Section 6(2) of the Act."
48. In Bhanu Prasad Panda (Dr.) v.
Sambalpur University [(2001) 8 SCC 532 : 2002
SCC (L&S) 14] one of the questions raised has
been as to whether a person not possessing the
required eligibility of qualification i.e. 55% marks
in Master's degree can be appointed in view of the
fact that UGC refused to grant relaxation. On the
issue of relaxation of eligibility, the Court held as
under: (SCC p. 536, para 5)
"5. ... the essential requirement of
academic qualification of a particular standard
and grade viz. 55%, in the 'relevant subject' for
which the post is advertised, cannot be rendered
redundant or violated.... ... The rejection by UGC
of the request of the Department in this case to
relax the condition relating to 55% marks at
postgraduation level ... is to be the last word on
the claim of the appellant and there could be no
further controversy raised in this regard."
51. More so, relaxation in this manner
is tantamount to changing the selection criteria
after initiation of selection process, which is not
permissible at all. Rules of the game cannot be
changed after the game is over. (Vide K.
Manjusree v. State of A.P. [(2008) 3 SCC 512 :
(2008) 1 SCC (L&S) 841 : AIR 2008 SC 1470] and
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
Ramesh Kumar v. High Court of Delhi [(2010) 3
SCC 104 : (2010) 1 SCC (L&S) 756 : AIR 2010 SC
3714] .)
59. The rule of law inhibits arbitrary
action and also makes it liable to be invalidated.
Every action of the State or its instrumentalities
should not only be fair, legitimate and above board
but should be without any affection or aversion. It
should neither be suggestive of discrimination nor
even give an impression of bias, favouritism and
nepotism. Procedural fairness is an implied
mandatory requirement to protect against
arbitrary action where statute confers wide power
coupled with wide discretion on an authority. If
the procedure adopted by an authority offends the
fundamental fairness or established ethos or
shocks the conscience, the order stands vitiated.
The decision-making process remains bad. [Vide
Haji T.M. Hassan Rawther v. Kerala Financial
Corpn. [(1988) 1 SCC 166 : AIR 1988 SC 157] ,
Rash Lal Yadav (Dr.) v. State of Bihar [(1994) 5
SCC 267 : 1994 SCC (L&S) 1063 : (1994) 27 ATC
855] and Tata Cellular v. Union of India [(1994) 6
SCC 651] .]
62. It is a matter of common experience
that a large number of orders/letters/circulars,
issued by the State/statutory authorities, are filed
in court for placing reliance and acting upon it.
However, some of them are definitely found to be
not in conformity with law. There may be certain
such orders/circulars which are violative of the
mandatory provisions of the Constitution of India.
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
While dealing with such a situation, this Court in
Ram Ganesh Tripathi v. State of U.P. [(1997) 1
SCC 621 : 1997 SCC (L&S) 186 : AIR 1997 SC
1446] came across with an illegal order passed by
the statutory authority violating the provisions of
Articles 14 and 16 of the Constitution. This Court
simply brushed aside the same without placing any
reliance on it observing as under: (SCC p. 625,
para 9)
"9. ... The said order was not
challenged in the writ petition as it had not come
to the notice of the appellants. It has been filed in
this Court along with the counter-affidavit.... This
order [is also deserved] to be quashed as it is not
consistent with the statutory rules. It appears to
have been passed by the Government to oblige the
respondents...."
Illegality cannot be perpetuated.
One of the plea has been taken by the appellants that
even if some illegality has been committed, that cannot be
allowed to be perpetuated as has been claimed by the
respondents that certain persons having no such qualification as
mentioned in the advertisement, having been appointed, so they
should be also allowed to be appointed in the same term, which
is not permissible in the law as in the sense that there cannot be
equality in illegality inasmuch as if any illegality has been done,
that cannot be allowed to be perpetuated for that he has placed
reliance on the judgment rendered in the case of The State of
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
Bihar Vs. Sri Krishna Prasad reported in 2015(1) PLJR 849. It
will be proper to quote relevant paragraph nos. 34 and 35 of the
said judgment :-
" 34. Situated thus, it becomes crystal
clear that there was, in the present case, not even
an iota of material to show that the two persons,
junior to the writ petitioner-sole respondent
herein, namely, Krishna Prasad, whose services
are claimed to have been regularized, had
worked, before their regularization, against
vacant sanctioned posts. In the absence of any
such concrete finding, there ought not to have
been any direction for 'favourable' consideration
of the case of the present respondent for
regularization of his service, more so, when the
writ petitioner-sole respondent herein, Krishna
Prasad, is even not claimed to have worked
against vacant sanctioned post.
35. In the name, therefore, of
removing the discrimination, it was, in the present
case, not open, in the light of the decision, in
Chandigarh Administration (supra), to direct the
State Government to regularize the service of the
writ petitioner- sole respondent herein, namely,
Krishna Prasad, and thereby perpetuate illegality.
Consequently, the impugned order, dated
20.11.2013, passed in CWJC No. 7852 of 2010,
cannot be sustained, for, the direction suffers
from severe legal infirmities".
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
In the case of Sardara Singh and Others Vs. State of
Punjab and Ors. reported in (1991) 4 SCC 555, the matter was
related to appointment on ad-hoc basis to the post of Patwaris
and the Government failed to constitute the Service Selection
Board and other authority was conferred power to make
recommendation for service. The different points were raised
with regard to the selection as has been made allegation for
procedural infringement in recruitment and one of the point was
raised that the District Collector was not competent to invite
applications afresh and selection of the candidates from out of
those applicants is illegal and one of the point was raised that
instead of publishing the advertisement in newspaper, it was
pasted on the noticeboard. In that case, the petitioner had
participated in the selection process and it has been held that this
point could be raised by other person who did not participate or
failed to get opportunity to make application, but in the case of
the petitioner he cannot take this plea as he has participated in
the selection, so the procedure adopted though irregular, does
not vitiate the selection of candidates. It will be proper to quote
relevant paragraph no. 4 of the said judgment :-
"4. It is next contended that the
District Collector was not competent to invite
applications afresh and selection of the
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
candidates from out of those applicants is illegal.
It is true that he is bound by the instructions
issued by the government in Annexure 'D'
wherein it was stated that since the number of
applicants are quite large in number, it would not
be necessary to solicit candidates afresh from
Employment Exchange or through public
advertisement. But in paragraph 4 therein it was
stated that priority categories listed in the
proceeding dated April 24, 1986 will have to be
given precedence over candidates from all other
sources other than the regularisation of the
existing ad hoc Patwaris. It had given room to the
District Collector to invite applications from those
categories. Though it was a mistaken compliance
on wrong impression, the selection of the
candidates, so applying, does not become illegal.
It was next contended that instead of calling the
applications by publication in the newspapers,
only notice was put on the notice board of the
Collector's office and some candidates submitted
their applications in pursuance thereof and that is
not a proper notification. Though we find that the
procedure, adopted by the Collector, in inviting
applications is not commendable, but the
grievance would be voiced only by the persons
who did not have the opportunity to make
applications within the prescribed period. But no
such grievance could be raised by persons like the
appellants. Under those circumstances, the
procedure adopted, though irregular, does not
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
vitiate the selection of candidates, ultimately
made by the Committee".
Remand for fresh consideration-what procedure to
be followed.
Before dealing with the case on merit, one of the point
has been raised by the writ-petitioners (respondents herein) that
on earlier litigation, the learned Single Judge has given direction
for consideration of qualification in the terms mentioned therein.
The contention has been raised that the Authority has
failed to consider the case of the writ petitioners- respondents as
per the guidelines set out by the earlier Bench in CWJC
No.17093 of 2016 and decided the case de hors to the tenor of
the judgment.
In that aspect of the matter, it has to be seen that when
the Court has remanded back the matter for fresh consideration
in what manner the Authority would react and take decision in
terms of the judgment. In that context, it will be relevant to
consider the relevant judgment in the case of A.P. SRTC and
Ors. Vs. G. Srinivas Reddy and Others reported in (2006) 3
SCC 674 and the Court has given a detailed consideration and
set out the manner the Authority would consider the case on
remand. It will be proper to quote paragraph nos. 16, 17 and 18
of the said judgment :-
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
"16. The High Courts also direct the
authorities to "consider", in a different category of
cases. Where an authority vested with the power to
decide a matter, fails to do so in spite of a request,
the person aggrieved approaches the High Court,
which in exercise of the power of judicial review,
directs the authority to "consider" and decide the
matter. In such cases, while exercising the power
of judicial review, the High Court directs
"consideration" without examining the facts or the
legal question(s) involved and without recording
any findings on the issues. The High Court may
also direct the authority to "consider" afresh,
where the authority had decided a matter without
considering the relevant facts and circumstances,
or by taking extraneous or irrelevant matters into
consideration. In such cases also, the High Court
may not examine the validity or tenability of the
claim on merits, but require the authority to do so.
17. Where the High Court finds the
decision-making process erroneous and records its
findings as to the manner in which the decision
should be made, and then directs the authority to
"consider" the matter, the authority will have to
consider and decide the matter in the light of its
findings or observations of the court. But where
the High Court without recording any findings, or
without expressing any view, merely directs the
authority to "consider" the matter, the authority
will have to consider the matter in accordance with
law, with reference to the facts and circumstances
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
of the case, its power not being circumscribed by
any observations or findings of the court.
18. We may also note that sometimes
the High Courts dispose of the matter merely with
a direction to the authority to "consider" the
matter without examining the issue raised even
though the facts necessary to decide the
correctness of the order are available. Neither
pressure of work nor the complexity of the issue
can be a reason for the court to avoid deciding the
issue which requires to be decided, and disposing
of the matter with a direction to "consider" the
matter afresh. Be that as it may".
In this view of the matter, this Court has to consider as
to whether the Authority has acted in accordance with the order
of remand passed by this Court or it has been passed on
extraneous considerations without taking guidelines and without
considering the reasons assigned.
In the earlier writ application, the learned Single
Judge has allowed the writ petition solely on the ground that
mere difference in nomenclature cannot be a foundation nor can
form any basis for exclusion of a candidate from consideration
rather it is the utility aspect of the matter and whether the course
attended by the applicant satisfies the requirement of the post on
which this applicants are to be appointed, the Authority should
not swayed away by the nomenclature of the qualification.
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
The Authority has considered the qualification of the
writ petitioners-respondents and they have found that it is not
matching the qualification fixed in the advertisement as he has
already explained that AICTE has given the details about the
qualification held by the respondents is mismatching. This Court
has to consider the matter on merit.
Consideration of merit of the case.
On forgoing discussion, it is very much clear that the
recruitment/selection/appointment has to be made in terms of the
rules and regulations and the notification prescribing the
qualification. In the midway the qualification cannot be changed
or relaxed or modified as the rule of game has to follow till the
end. It is also very much clear that if the recruitment/selection
has to be made in terms of the qualification fixed under the
notification, it cannot be changed, modified or relaxed by the
recruitment Board or Selection Committee nor the Court has
business to grant the relief in terms of equivalence of the
qualification, as the equivalence of qualification is a technical
business that lies within the domain of the experts, and it is
better for the Court to keep away or refrain from embarking on
such exercise, but it should be left to the wisdom of expert body.
It is also clear that if the recruitment has to be made on a
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
principle of equivalence of the degree, in that circumstances,
other candidates, who does have the same qualification, they did
not apply against the advertisement for the recruitment on the
basis of equivalence of qualification and did not opt to join the
fray under the impression that the qualification which prescribes
in the notification is not meant for him/her. The direction for
appointment in giving benefit of equivalence of qualification
would be violation of Articles 14 & 16 of the Constitution of
India.
The judgment under challenge and earlier judgment
passed in CWJC No.17093 of 2016 have considered primarily
the case of the writ-petitioners/respondents in the light of the
equivalence of qualification on the basis of degree granted by
the respective institutions from where they have obtained their
qualifications.
In the present case, thrust has been given by the writ-
petitioners/respondents upon the 2006 resolution of AICTE
wherein it has been provided that the two year full time regular
management course will be treated to be PGDM as they are
claiming that they have studied for two year full time regular
management programme course and, in such, view of the matter,
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
nomenclature may be different, but their qualification is PGDM
or MBA.
In order to remove the confusion about the status of
the qualification of the writ-petitioners/respondents, this Court
vide order dated 23.02.2021 impleaded/added the AICTE as a
party respondent and directed the entire brief be handed over to
the counsel for the AICTE within four days by the appellants
and, in the event of non-availability, this Court would take
suitable action with respect to the service of notice on the newly
added respondent. The order dated 02.03.2021 shows that Ms.
Archana, learned counsel has appeared for the AICTE and
sought three weeks' time to file reply in the matter. This Court
has directed the AICTE to give its response to the extent as to
whether the qualification acquired by the respondents-writ
petitioners is the same as that of qualification of MBA or
PGDBM or standing at par with those qualifications. The AICTE
has filed a counter affidavit, but it was not to the satisfaction of
the Court and this Court on 23.03.2021 has passed the following
order :-
"Today, AICTE has filed its counter
affidavit, but on perusal of the same, it does not
serve the purpose as there is no explanation in the
affidavit as to whether the qualification acquired by
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
the respondents is identical as that of qualification
mentioned in the advertisement.
In such view of the matter, let AICTE
file its detailed counter affidavit of the Memo of
Appeal filed by the appellants on or before
8.04.2021 after serving a copy of the same upon the
respective parties well in advance i.e. on or before
06.04.2021.
Let this case be listed on 08.04.2021 at
the top of the list.
Let the counter affidavit filed by the
AICTE be kept on record".
Whereafter, the AICTE has filed its detailed counter
affidavit. It will be relevant to examine first counter affidavit
filed by AICTE wherein a plea has been taken that AICTE does
not give equivalency to any qualifications acquired from AICTE
approved institution and it is for the employer to consider and
decide for employment purpose and institution to consider for
higher education purpose. Later on, a supplementary counter
affidavit has been filed by AICTE wherein a stand has been
taken that the degree of respondents nos. 1 to 14 is not
equivalent and identical to the degree fixed in the advertisement.
It will be relevant to quote paragraphs 6, 7, 8 & 9 of the
supplementary counter affidavit :-
"6. (i) That the degree of respondent
no. 1 to 14 do not match to the qualification as
per the advertisement as the respondents were
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
awarded PGDM/MBA/MA degree which varied
nomenclature as mentioned earlier. AICTE, as
such, is not giving equivalency to any
qualification acquired from A.I.C.T.E approved
institution and updating nomenclature for
P.D.D.M/ M.B.A. course.
(ii) The employer has to see the
appropriateness of the qualifications of the
candidates for a particular post.
7. That from perusal of the L.P.A, it
appears that the respondent nos. 1, 2, 3 and 4
possesses degree in Master of Human Resources
Management in short M.H.R.M. from L.N.
Mishra Institute of Economic Development &
Social Change. The L.N. Mishra Institutes runs a
two year M.B.A. Programme which cannot be
treated equivalent to another already running
course of M.B.A. within the same institutes.
Similarly so far the respondent no. 1 possess
degree in P.G.D.M. (Post Graduate Programme in
Management from T.M.T. qualification which
runs a course of P.G.D.M. and as such cannot be
treated equivalent to another already running
course from the same institute.
8. That so far the respondent nos. 5, 6,
7, 8, 9, 10, 11, 13 and 14 degree are concerned of
M.B.A./P.G.D.B.M. are also not equivalent to the
degree invited under advertisement Committee of
Board of Directors also held that those candidates
degree fall within the specified
eligibility/qualification cases were considered but
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
degree of other candidates not being found to the
match of advertisement were not considered.
9. That on advertisement behalf of the
respondent no. 16 earlier it has been stated that as
per policy of A.I.C.T.E. the degree of the
respondents are not equivalent as the same has
not been acquired from A.I.C.T.E. approved
institution and as such the same cannot be said
equivalent".
We have already held hereinabove that granting of
equivalence to any degrees does not fall within the domain of
the Court, but it lies to the Expert Body, and it is better for the
Court to keep away or refrain from embarking on such exercise,
but it should be left to the wisdom of expert body and we do not
have any expertise in the field to hold that any qualification is
equivalent to another, it is within the domain of the expert body,
which are the best body to find out the equivalence and hold that
the degree is identical to the another degree, but AICTE, which
is the main body, has filed its counter affidavit specially has
given parawise reply with regard to the equivalence of
qualification and has categorically stated that the respondents do
not possess matching qualification prescribed in advertisement
and their qualification cannot be stated to be identical or
equivalent certificates.
Patna High Court L.P.A No.210 of 2019 dt.03-05-2021
In such view of the matter, this Court comes to the
irresistible conclusion that this appeal is fit to be allowed and,
accordingly, the same is allowed. The judgment/order of learned
Single Judge dated 05.11.2018, which is under challenge in this
memo of appeal, is quashed and set aside.
Before parting with this judgment, this Court directs
the Managing Director, Bihar State Food and Civil Supplies
Corporation Limited (appellant no.2) to take action against those
who donot have matching qualification, but they have been
appointed on the plea of equivalence of qualification, but after
giving them proper hearing before passing any adverse order
against them.
However, in the facts and circumstances of the case,
there will be no order as to costs.
(Shivaji Pandey, J)
Partha Sarthy, J. :- I Agree.
( Partha Sarthy, J)
V.K.Pandey/-
AFR/NAFR A.F.R.
CAV DATE 12.04.2021
Uploading Date 06.05.2021
Transmission Date
