The Bihar Public Service ... vs Vijay Kumar Gupta
2023 Latest Caselaw 3709 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Letters Patent Appeal No.423 of 2022
                                         In
                   Civil Writ Jurisdiction Case No.24042 of 2019
     ======================================================

1. The Bihar Public Service Commission 15, Jawahar Lal Nehru Marg (Bailey Road), Patna-800001 through its Chairman.

2. The Chairman, the Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg (Bailey Road), Patna-800001.

3. The Secretary, Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg (Bailey Road), Patna-800001.

4. The Joint Secretary cum Controller of Examination, 15, Jawahar Lal Nehru Marg (Bailey Road), Patna-800001.

... ... Appellant/s Versus

1. Vijay Kumar Gupta S/o Khushilal Gupta, R/o Village-House No. C6, Second Floor, Gali No. 2, Hardev Nagar, Jharoda Majraa, North Delhi Delhi- 110084.

2. The State of Bihar through the Principal Secretary, Department of Higher Education, New Secretariat, Patna.

3. Pooja Gupta, Assistant Professor (Hindi), Hindi Department (PG), North Campus, B.N. Mandal University, Bihar.

4. Stuti Ray, Assistant Professor (Hindi) Hindi Department, Ramesh Jha Mahila College, Saharsa, B.N. Mandal University, Bihar.

5. Mayank Bhargav, Assistant Professor (Hindi), Hindi Department, M.L.T.

College, Saharsa, B.N. Mandal University, Bihar.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. P.K. Shahi, AG Mr. Sanjay Pandey, Advocate Mr. Sanjiv Kumar, Advocate Mr. Nishant Kumar Jha, Advocate For the State : Mrs. Shilpa Singh, GA-12 Mr. Apurva Kumar, Advocate For respondent no.1 : Mr. Navnit Kumar, Advocate For respondent no.5 : Mr. Abhinav Srivastava, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 11-08-2023 Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

The appeal is filed by the Bihar Public Service

Commission, (for brevity, BPSC) and the dispute arose between

the 1st respondent and the 5th respondent, who were both

applicants to the post of Assistant Professor, Hindi in the

selection conducted by the appellant BPSC.

2. The 1st respondent-writ petitioner was not

selected since the 5th respondent obtained higher marks. The

contention is as to the marks that should be conceded to the

candidates with an M.Phil qualification, which was obtained in

accordance with the University Grants Commission (Minimum

Standards and Procedure for Awards of M.Phil/PhD degree)

Regulation, 2009 (hereinafter, UGC Regulations of 2009). The

advertisement provided for four marks for M.Phil obtained in

accordance with the UGC Regulations of 2009, while only two

marks was awarded to the 1st respondent. If four marks were

granted, then he would overstep the 5th respondent and get

selected is the contention.

3. The learned Single Judge found two apparently

conflicting judgments on the identical issue. One Jainendra

Kumar v. The State of Bihar and Ors. dated 04.09.2021 in

C.W.J.C. No. 23258 of 2019 and the other, Nitu Kumari v. The

State of Bihar and Ors. dated 14.08.2020 in C.W.J.C. No. 7905 Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

of 2019. In Jainendra Kumar (supra) a learned Single Judge of

this Court found that the petitioner, who had passed the M.Phil

degree; was found to have obtained it without compliance of

certain clauses of the UGC Regulations of 2009. But in Nitu

Kumari (supra) it was found that the criteria for selection was

changed midway, as has been done by the notification dated

15.05.2018, which change was held to be redundant,

inapplicable and not necessary to be complied with qua the

petitioner for the purposes of consideration of her case for

appointment to the post of Assistant Professor in Hindi, pursuant

to that very same advertisement, in which all concerned,

including the respondents 1 & 5 in this appeal participated.

4. The learned Single Judge in Nitu Kumari (supra)

relied on P.K. Ramachandra Iyer v. Union of India, reported in

(1984) 2 SCC 141, Umesh Chandra Shukla v. Union of India,

reported in (1985) 3 SCC 721, Durgacharan Misra v. State of

Orissa, reported in (1987) 4 SCC 646, K. Manjusree v. State

of A.P., reported in (2008) 3 SCC 512; wherein it was declared

and reiterated that the criteria for selection cannot be changed

midway, after the selection had commenced with a proper

notification and before it is concluded with an appointment.

5. The learned Single Judge in the instant case Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

noticed that the qualification of M.Phil was awarded by the

University of Delhi and it is stated in the certificate issued by

the University that the M.Phil qualification was as per UGC

Regulations of 2009. There was no fraud or forgery alleged

against the certificate produced and also there was also no

requirement for furnishing the details of the criteria on which

the M.Phil was obtained; either in the Statute of Appointment of

Teachers for the Universities of Bihar, 2014 or in the

advertisement. It was also found that the UGC Regulations of

2009 provides for an 11 point criteria with regard to awarding of

PhD degree and there is no such criteria for M.Phil. The 11

point criteria which was relied on by the Allahabad High Court

had been upset by the Hon'ble Supreme Court in P. Suseela and

Ors. Vs. UGC and Ors, reported in (2015) 8 SCC 129. It was

found that the University of Delhi is a statutory university duly

recognised by the UGC and the degrees awarded by it have to

be treated as sacrosanct and not liable to be challenged by any

other University. The writ petition was allowed and petitioner

was directed to be granted four marks for the M.Phil degree

obtained.

6. The learned Advocate General, who appeared for

the appellants contended that the stipulation regarding proof of Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

compliance of UGC Regulations of 2009 was brought in to

ensure that only persons, who were awarded M.Phil in

accordance with that regulations are selected for appointment.

In fact, this does not result in any change of criteria or the

eligibility conditions, but only provides for a more stringent

method of proof of the basic eligibility condition. When a

different criterion was applied to those PhD/M.Phil obtained

under the UGC Regulations of 2009 and otherwise; in the

advertisement itself, it cannot be said that there was a change in

the rule of the game midway.

7. Learned Advocate General would specifically

refer to the advertisement, the guidelines issued and the call

letter of the interview to assert that the 1 st respondent failed to

meet the standard to be granted four marks. It was argued, this

was not a case in which there was a disqualification made but a

lesser mark was awarded for the PhD obtained by the 1 st

respondent; which is in accordance with the advertisement. It

was pointed out that when there were conflicting decisions of

coordinate Benches, it would have been proper for the learned

Single Judge to refer the matter to a Division Bench and not

follow one of those judgments; which in effect was done despite

holding both the judgments cited to be not relevant to the facts Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

of the case.

8. Sri Navnit Kumar, learned counsel for the 1 st

respondent would however assert that the 1st respondent is a

person, who had obtained a qualification under the UGC

Regulations of 2009, which was certified by the University of

Delhi from which the M.Phil degree was obtained. It was also

pointed out from the documents produced along with the writ

petition that not only was the M.Phil certificate produced; to

which course the appellant obtained admission in 2012 and

qualified in the year 2015; a separate certificate was produced

from the University of Delhi affirming the fact of the M.Phil

degree having been obtained under the UGC Regulations of

2009. It is argued that Nitu Kumari (supra) was an identical

case in which the petitioner had also applied for the very same

post of Assistant Professor in Hindi under the very same

advertisement. Nitu Kumari's case had in fact travelled to the

Division Bench on an appeal filed by the BPSC which was

dismissed in L.P.A. No. 23 of 2021 reported in 2023 (2) PLJR

80. The decision of the co-ordinate Bench binds this Bench in

considering the instant appeal. The learned counsel also relied

on the decision in K. Manjusree (supra) to again assert that the

criterion provided later would result in the rule of the game Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

being changed midway.

9. Shri Abhinav Shrivastava, learned counsel for

the respondent nos. 3 to 5 would specifically refer to the

regulations and the criterion provided for evaluation by at least

two experts, one of whom should be from outside the State,

which has been, admittedly, not followed by the University of

Delhi; in the award of the M.Phil degree to the petitioner; even

as per the certificate produced.

10. We have given our anxious consideration to the

matter before us and perused the documents which we refer

from the writ petition filed. The advertisement is produced as

Annexure-1, wherein at the inner page-9 under Schedule-V

M.Phil as per the UGC Regulations of 2009 and with NET, is

conceded four marks, while under the same schedule, M.Phil

not as per UGC Regulations of 2009 and NET is conceded only

two marks. The 1st respondent's certificate is at Annexure-2,

issued in 2015, from the University of Delhi which shows the

enrollment to be in the year 2012. The Hindi Department of the

University of Delhi has issued a certificate dated 05.11.2014, 'to

whomsoever it concerns' that the 1st respondent had acquired

M.Phil at the exam held in the year 2013 under the UGC

Regulations of 2009.

Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

11. The certificate is also enclosed with a certificate

of compliance of M.Phil degree with UGC Regulations of

2009/2016 seen at page 28 of the writ petition. The very same

advertisement is produced as Annexure-A in the counter

affidavit of the State.

12. Annexures-B and C are the copies of the

interview program and interview letter both issued to the

candidates as per Annexure-D. It has been specifically provided

that along with the degree, the degree awarding

university/institution deemed to be a university,

college/institution of national importance as the case may be,

shall issue a provisional certificate certifying to the effect that

the degree has been awarded in accordance with the provisions

to the UGC Regulations of 2009.

13. It is also clarified that the certificate should

indicate how many and whichever criteria of the UGC

Regulations of 2009 were followed in awarding PhD/M.Phil.

The mere indication of the number of criteria followed was

indicated to be not permissible. The very same criteria were

indicated in the interview letter at Annexure-C also. There is

also no dispute that in the present case, 1st respondent has

produced a certificate as required, but the same does not clearly Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

indicate that the course is in full compliance of the UGC

Regulations of 2009; which we will examine later.

14. Before we examine the minute facts as pointed

out by the parties, we would first look at the various judgments

placed before us. We find that both the judgments referred to by

the learned Single Judge was on the identical issue. In

Jainendra Kumar (supra) the Court found that the certificate

issued by the Jawaharlal Nehru University, New Delhi, with

respect to the M.Phil degree obtained by the petitioner therein

indicated compliance of regulations 5, 8 to 10, 12, 14, 17 and 18

Regulations Nos. 6, 7, 9(IV), 15 and 19 were not followed. The

stipulation in the interview letter regarding the appearance being

only provisional subject to further verification of the

qualifications was specifically noticed. It was held that there

was nothing wrong in the petitioner therein having been

awarded with only two marks since it has been demonstrated

that the M.Phil degree obtained was not in compliance of the

UGC Regulations of 2009.

15. In Nitu Kumari (supra), the learned Single

Judge having noticed the stipulation in the interview letter found

that the further stipulation of a provisional certificate regarding

compliance of UGC Regulations of 2009 has resulted in Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

changing the rule of the game midway, upon which reasoning,

the petitioner therein was directed to be considered to the post

of Assistant Professor in Hindi after awarding her four marks as

indicated in the advertisement. Nitu Kumari (supra) as of now

has been upheld by a Division Bench, which has been

challenged by the BPSC before the Hon'ble Supreme Court in

Special Leave to Appeal (C) No. 6251 of 2023.

16. As of now, the Division Bench is binding on us,

a coordinate Bench and we could either follow the Division

Bench or refer the issue for reconsideration before a larger

Bench. Before that, we looked at the Division Bench judgment

to understand the reasoning. The petitioner therein was a PhD

degree holder in Hindi literature from the Ranchi University,

awarded in the year 2012. The Ranchi University has issued a

certificate on 21.10.2014, that the PhD degree awarded to

respondent no. 1 was in accordance with the PhD regulation of

Ranchi University, which is in consonance with the UGC

Regulations of 2009. The petitioner was declared to be eligible

despite having no NET qualification since she was a PhD in

Hindi under the UGC Regulations of 2009. The Division Bench

also noticed the communication issued by the Commission on

15.05.2018 making a departure from the conditions in Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

advertisement No. 50 of 2014 requiring a further certificate of

the details of criteria on which, the PhD/M.Phil degree was

acquired.

17. The candidate had appeared for interview and

had also produced a certificate of the Ranchi University dated

04.06.2018, declaring her PhD degree to be in consonance with

the UGC Regulations of 2009. It was specifically indicated that

the mode of award of the degree was regular, the thesis was

evaluated by two external examiners, there was open viva-voce,

she has published two papers out of which one published in an

accredited journal and that she has presented two research

papers based on PhD work in conferences/seminars. The

candidate, however, was not considered for appointment for

reason of the candidate having not qualified PhD under the

UGC Regulations of 2009 and that she did not have the

NET/SET qualification. Insofar the NET/SET qualification, the

reliance placed by the BPSC on P. Suseela (supra) was found to

have been altered by a larger Bench of three Judges. In

University of Kerala and Ors. v. Merlin J. and Anr. reported in

(2022) 9 SCC 389, the Hon'ble Supreme Court found after

examining a number of regulations prior to that in 2009 and

held that by the introduction of the UGC Regulations of 2009 Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

many, who obtained the PhD degree prior to that were required

to appear and qualify in NET. The said requirement was sought

to be remedied by two resolutions of 12.08.2010 and 27.09.2010

providing for exemption to those persons, who obtained PhD

before the said date, from acquiring NET qualification. In

University of Kerala (supra), it was held that the UGC

Regulations of 2009, would only act prospectively and the

decision validated the appointment of one Dr. M.S. Jayakumar,

who did not have a NET qualification but had acquired PhD

prior to UGC Regulations of 2009.

18. We are of the opinion that neither P.Suseela

(supra) nor University of Kerala (supra) can be applied to the

instant case. Both the said decisions were concerned as to

whether NET qualification was mandatory or not; which the

Central Government had ordained but the UGC had exempted,

in the case of those, who had acquired the UGC qualification

prior to 2009. In the instant case the party respondents have

NET qualification.

19. In the case of Nitu Kumari (supra), the said

decisions were valid but insofar as the 1 st respondent is

concerned, he admittedly has a NET qualification. The only

question is as to whether 1st respondent had obtained the M.Phil Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

qualification in accordance with UGC Regulations of 2009.

Nitu Kumari (supra) also examined the question of the PhD

qualification being under the UGC Regulations of 2009 based

on a certificate issued by the Ranchi University, from which the

candidate was found to have acquired the PhD qualification in

accordance with the UGC Regulations of 2009. The Division

Bench considering her case had noticed the essentials of the

certificate which were: the mode of award of degree being

regular, the thesis being examined by two external examiners,

there having been an open viva-voce and two papers having

been published out of which one was in an accredited journal

and presentation of two research papers based on her PhD work

in conferences/seminars.

20. As far as the 1st respondent is concerned, the

certificate indicates the following :

"Certificate for Compliance of M.Phil. Degree with UGC Regulation 2009/2016 It is verified that Mr. Vijay Kumar Gupta, who was an M.Phil. student in the Department/Faculty of Hindi, University of Delhi has been awarded M.Phil Degree and has complied with UGC Regulations 2009/2016 as per the following criteria:

1. Candidate has completed Coursework including Research Methodology paper

2. M.Phil Degree of the candidate awarded in regular mode only

3. Evaluation of M.Phil. Dissertation by one external examiner Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

4. Open M.Phil. Viva voce of the candidate has been conducted

5. Candidate has made one presentation in seminar, based on his M.Phil. Work."

21. At the outset it has to be noticed that the same

is in a printed form referring to both UGC Regulations of 2009

and 2016; the latter not struck off. We can safely assume that the

reference is to the UGC Regulations of 2009, since the M.Phil

certificate produced as Annexure-2 was issued in the year 2015.

The specific criteria as indicated from the certificate is

evaluation of M.Phil dissertation by one external examiner. The

requirement as per UGC Regulations of 2009 as seen from

Clause-17 is that the thesis produced by M.Phil/PhD student

shall be evaluated by at least two experts, out of which one shall

be from outside the State. Hence, even as per the certificate

issued by the University, which awarded the M.Phil degree, the

same was not in accordance with the UGC Regulations of 2009.

22. It cannot at all be disputed that the degree

awarded by a statutory university cannot be ignored or brushed

aside, however, the stipulation in the present case is not with

respect to ineligibility but, however, lesser marks being

conceded to a candidate having an M.Phil. degree not in

accordance with the UGC Regulations of 2009, as against a Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

higher mark conceded to one who has an M.Phil./PhD under the

UGC Regulations of 2009. The appointing authority having

considered the PhD awarded under the UGC Regulations of

2009, to be of a better standard requiring an edge conceded to

such candidates; it cannot be faulted, especially the power so to

do being within the exclusive domain of the appointing

authority.

23. It is trite law that even the degrees awarded by

the institutions, who do not follow the UGC regulations are not

by that alone declared invalid. The non-compliance of UGC

Regulations of 2009 would only result in withholding of the

grant and it is for the respective States to adopt the UGC

Regulations, as held in Kalyani Mathivannan v. K.V. Jeyaraj

reported in (2015) 6 SCC 363. The stipulation hence cannot be

found to be bad and definitely there could be different marks

awarded for the PhD/M.Phil degrees obtained in compliance

with the UGC Regulations of 2009 or otherwise.

24. Now, we come to the question of whether there

is a change of rule midway after the selection procedure had

commenced. In K. Manjusree (supra) it was held that the

prescription of minimum marks for the interview after the

interview itself was over, would result in changing the game Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

midway; thus, making it invalid. In Tej Prakash Pathak v.

Rajasthan High Court, reported in (2013) 4 SCC 540, a doubt

was raised as to the absolute prohibition of the change of rule

midway, to a selection, especially considering the aspect of

retrospective law making power; and the issue was referred to a

larger Bench. But we need not tarry much on this aspect,

especially since changing the rule of the game refers to altering

the criterion of selection. We cannot but emphatically observe

that, herein, the advertisement itself treated PhD/M.Phil under

the UGC Regulations of 2009, to be of a higher standard than

the M.Phil/PhD acquired otherwise. Different marks were

stipulated for M.Phil/PhD degree obtained in compliance with

the UGC Regulations of 2009 and otherwise. There was no

change in the criterion but the additional stipulation only aided

the implementation of the criterion, in a fool proof manner.

25. As we noticed there can be no presumption that

merely because an educational institution is affiliated with the

UGC that it follows scrupulously the regulations brought out by

the UGC. It was hence the appointing authority specifically

stipulated that the claim of M.Phil/PhD under the UGC

Regulations of 2009 should be supported by a certificate issued

by the awarding University of full compliance of the UGC Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

Regulations of 2009. This is not a change of criteria or rule after

the game has commenced. The criterion remains the same but

the proof of acceptance has been made stringent in the interview

guidelines and the call letter issued directly to the candidates.

The candidates also do not have a contention that they did not

have sufficient time to provide that proof. We have seen that

Nitu Kumari, Jainendra Kumar and even the 1st respondent

herein, have produced such certificates from the University

from which they obtained the degree. In Jainendra Kumar

(supra) there was found non-compliance of certain regulations

and the candidature was held to be bad. In Nitu Kumari (supra)

the compliance was found to be scrupulous and the candidature

was upheld. In the case of the 1 st respondent, we have found the

candidature to be not permissible especially on the certificate

produced, itself demonstrating the non-compliance of the UGC

Regulations of 2009.

26. We are of the opinion that the judgment in Nitu

Kumari (supra) by a co-ordinate Bench of this Court is on

different and distinct facts and does not have the sheen of a

binding precedent to the facts of the instant case nor do we

require to refer the same to a larger Bench.

27. We rest our finding on the candidate herein, the Patna High Court L.P.A No.423 of 2022 dt.11-08-2023

1st respondent, who was the petitioner in the writ petition, not

entitled to be granted four marks, since demonstrably, from the

certificate issued by the University which awarded the M.Phil

degree; it was not an award in compliance to the UGC

Regulations of 2009.

28. We set aside the judgment of the learned Single

Judge and allow the appeal, as a consequence rejecting the writ

petition.

(K. Vinod Chandran, CJ)

Partha Sarthy, J: I agree.

(Partha Sarthy, J)

aditya/-

AFR/NAFR
CAV DATE                02.08.2023.
Uploading Date          11.08.2023.
Transmission Date       N.A.