Tripura High Court
Sri Pranab Majumder vs The State Of Tripura on 31 March, 2021
HIGH COURT OF TRIPURA
AGARTALA
WA 09 of 2020
Sri Pranab Majumder
son of Sri Narayan Majumder,
resident of village & P.O. Krishnanagar,
PS : Belonia, District: South Tripura, PIN: 799156
----Appellant(s)
Versus
1. The State of Tripura
represented by the Commissioner &
Secretary to the Department of Industries &
Commerce, Government of Tripura, having
his office at New Secretariat Complex,
Gurkhabasti, Agartala, PO: Kunjaban, P.S.
New Capital Complex, Sub-Division Sadar,
District: West Tripura
2. The Commissioner & Secretary,
Department of Industries & Commerce,
Government of Tripura, having his office at
New Secretariat Complex, Gurkhabasti,
Agartala, PO: Kunjaban, P.S. New Capital
Complex, Sub-Division Sadar, District: West
Tripura
3. The Director,
Department of Industries & Commerce,
Government of Tripura, having his office at
New Secretariat Complex, Gurkhabasti,
Agartala, PO: Kunjaban, P.S. New Capital
Complex, Sub-Division Sadar, District: West
Tripura
......Official respondents
4. Sri Braja Gopal Debbarma,
son of late Madan Debbarma, resident of
village: Bastali, Jangalia, PS:Bishramganj,
District: Sepahijala, Tripura
Page 2 of 26
5. Smt. Sabini Kalai, daughter of Pranir Kalai,
resident of Baishyamanipara, Ompinagar
6. Smt. Rima Debbarma, daughter of Biresh
Chandra Debbarma, resident of village
Sepahijala, Bishalgarh
7. Sri Arun Kumar Reang, son of Dharmaram
Reang, resident of village Chailengta,
District: Dhalai, Tripura
8. Sri Goutam Biswas, son of Anil Biswas,
resident of Village: Madhya Bhubanban,
District: West Tripura
----Private Respondent(s)
WA 10 of 2020
1. Sri Amitava Dasgupta,
son of late Rati Ranjan Dasgupta,
resident of village Banamalipur, Jorapukurpar,
P.O. Agartala, PS East Agartala, District : West Tripura,
PIN: 799001
2. Sri Abhishek Chakraborty,
son of Sri Ashok Kr. Chakraborty,
resident of village Krishnanagar, Suparibagan,
P.O : Agartala, P.S. West Agartala, District: West Tripura,
PIN:799001
----Appellant(s)
Versus
1. The State of Tripura
represented by the Commissioner &
Secretary to the Department of Industries &
Commerce, Government of Tripura, having
his office at New Secretariat Complex,
Gurkhabasti, Agartala, PO: Kunjaban, P.S.
New Capital Complex, Sub-Division Sadar,
District: West Tripura
Page 3 of 26
2. The Commissioner & Secretary,
Department of Industries & Commerce,
Government of Tripura, having his office at
New Secretariat Complex, Gurkhabasti,
Agartala, PO: Kunjaban, P.S. New Capital
Complex, Sub-Division Sadar, District: West
Tripura
3. The Director,
Department of Industries & Commerce,
Government of Tripura, having his office at
New Secretariat Complex, Gurkhabasti,
Agartala, PO: Kunjaban, P.S. New Capital
Complex, Sub-Division Sadar, District: West
Tripura
......Official respondents
4. Smt. Ashima Bhowmik, daughter of Kiran
Sankar Bhowmik, resident of village:
Brajanagar, P.O. Ranirbazar, District: West
Tripura
5. Sri Biplab Dey, son of Haradhan Dey,
resident of village Jail Road, P.O & P.S.
Radhakishorepur, Udaipur, District: Gomati,
Tripura
6. Sri Sujoy Bhowmik, son of Sankar Bhowmik,
resident of village Nalgaria, Ranirbazar,
District: West Tripura
7. Sri Hamon Uchoi, son of Amairam Uchoi,
resident of village Depachara, P.O. Jatanbari,
District: Gomati, Tripura
8. Sri Jeevan Debbarma, son of Haridas
Debbarma, resident of village Jangalia Para,
P.O. & P.S. Bishramganj, District: Sepahijala,
Tripura
----Private Respondent(s)
Page 4 of 26
WA 11 of 2020
Sri Uttam Chakraborty
son of late Joy Gobinda Chakraborty,
resident of village Thakurpalli, P.O. Kulai Bazar,
P.S. Ambassa, District: Dhalai, Tripura, PIN: 799204
----Appellant(s)
Versus
1. The State of Tripura
represented by the Commissioner &
Secretary to the Department of Industries &
Commerce, Government of Tripura, having
his office at New Secretariat Complex,
Gurkhabasti, Agartala, PO: Kunjaban, P.S.
New Capital Complex, Sub-Division Sadar,
District: West Tripura
2. The Commissioner & Secretary,
Department of Industries & Commerce,
Government of Tripura, having his office at
New Secretariat Complex, Gurkhabasti,
Agartala, PO: Kunjaban, P.S. New Capital
Complex, Sub-Division Sadar, District: West
Tripura
3. The Director,
Department of Industries & Commerce,
Government of Tripura, having his office at
New Secretariat Complex, Gurkhabasti,
Agartala, PO: Kunjaban, P.S. New Capital
Complex, Sub-Division Sadar, District: West
Tripura
......Official respondents
4. Sri Amitava Dey, son of Haripada Dey,
resident of Village Haradhan Sangha, P.O.
Agartala, District: West Tripura
Page 5 of 26
5. Sri Deeptaneel Ray, son of Dibyendu Kr.
Ray, resident of Village & PO Gurkhabasti,
Agartala Airport Road, District: West Tripura
6. Sri Ripan Debbarma, son of Rabi Chandra
Debbarma, resident of village Ballavi Sardar
para, P.O. : T.E. College, Jirania
7. Smt. Rupali Debbarma, daughter of Alindra
Debbarma, resident of village Banerjee Para,
P.O. Agartala, District: West Tripura
8. Sri Lalchhandama Hrangkhawl, son of Nirjar
Chondro Hrangkhawl, resident of village
Sonarai, P.O. Sangkuma, P.S. Takerjala,
District: Sepahijala, Tripura
----Private Respondent(s)
WA 13 of 2020
Sri Jayanta Das, son of Sri Sunil Ch. Das,
resident of village Milan Chakra, TV Tower,
P.O. & PS A.D. Nagar, District West Tripura, PIN:799003
----Appellant(s)
Versus
1. The State of Tripura
represented by the Commissioner &
Secretary to the Department of Industries &
Commerce, Government of Tripura, having
his office at New Secretariat Complex,
Gurkhabasti, Agartala, PO: Kunjaban, P.S.
New Capital Complex, Sub-Division Sadar,
District: West Tripura
2. The Commissioner & Secretary,
Department of Industries & Commerce,
Government of Tripura, having his office at
New Secretariat Complex, Gurkhabasti,
Agartala, PO: Kunjaban, P.S. New Capital
Page 6 of 26
Complex, Sub-Division Sadar, District: West
Tripura
3. The Director,
Department of Industries & Commerce,
Government of Tripura, having his office at
New Secretariat Complex, Gurkhabasti,
Agartala, PO: Kunjaban, P.S. New Capital
Complex, Sub-Division Sadar, District: West
Tripura
......Official respondents
4. Sri Ashim Dey, son of Smar Kanti Dey,
resident of Village Dhaleswar, Road No. 11,
A.A. Road, PS East Agartala, District: West
Tripura
5. Sri Tikendra Debnath, son of late Prafulla Kr.
Debnath, resident of village Nalgaria, P.O.
Ranirbazar, District: West Tripura
6. Sri Sushanta Debbarma, son of Jugal Kishore
Debbarma, resident of village Pekurjala, P.O.
Nabasantiganj Bazar, PS Takarjala, District:
Sepahijala, Tripura
----Private Respondent(s)
IN ALL CASES
For the appellant(s) : Mr. Somik Deb, Adv
For the respondent(s) : Mr. D Bhattacharjee, GA
Mr. SM Chakraborty, Sr. Adv.
Mr. D Sarma, Addl GA
Mr. TD Majumder, Adv
Mr. P Sen, Adv.
Date of hearing : 13.01.2021
Date of delivery
of Judgment & Order : 31.03.2021
Whether fit for reporting : NO
Page 7 of 26
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER
(Talapatra, J)
As these writ appeals being WA 09/2020[Sri Pranab
Majudmer Vs. The State of Tripura & Ors.], WA 10/2020 [Sri
Amitava Dasgupta Vs. The State of Tripura & Ors.], WA
11/2020 [Sri Uttam Chakraborty Vs. The State of Tripura &
Ors.] and WA 13/2020 [Sri Jayanta Das Vs. The State of Tripura
& Ors.] emerged from the common judgment and order dated
03.12.20219 delivered in WP(C) 668/2019 [Sri Pranab
Majudmer Vs. The State of Tripura & Ors.], WP(C) 669/2019
[Sri Uttam Chakraborty Vs. The State of Tripura & Ors.], WP(C)
712/2019 [Sri Amitava Dasgupta Vs. The State of Tripura &
Ors.], and WP(C) 713/2019 [Sri Jayanta Das Vs. The State of
Tripura & Ors.], those are combined for disposal by a common
judgment. Facts
relevant for consideration of these appeals are
briefly introduced at the outset.
2. The appellants applied for the post of Sr. Instructors
(Engenieering Group) viz, Sr. Instructor (Mechanical), Sr.
Instructor (Civil) etc. but could not come out successful in the
selection process. The common grievance as projected in the
writ petitions, as stated, is that the respondents No. 4 to 8 have
been wrongly held to be eligible in terms of the recruitment
rules and suitable for the post in question. The Director of
Industries and Commerce, Government of Tripura framed the
recruitment rules for those posts (Sr. Insturctors) and published
the same by the notification dated 25.07.2009. In the
recruitment rules the essential qualifications as prescribed are
Madhyamik or equivalent examination passed with technical
qualification of 3 years diploma course in electrical engineering
from a recognized institution approved by the All India Council
for Technical Education (AICTE, in short). In the recruitment
rules for each of the posts, there are some variations in respect
on technical qualification and that change is limited to the
connected branch of engineering. According to the appellants,
the respondents No. 4 to 8 are inelligible as they do not have
the requisite technical qualification of 3 years "diploma course
in the respective branch of engineering from a reconized
institution".
3. According to the appellants, none of those private
respondents did have the said technical qualification but despite
that deficiency on the basis of their possessing degree in the
respective branch of engineering, they have been selected and
appointed by-passing the petitioners even though they do
conformed to the required technical and other qualifications.
4. According to the appellants, the degree in electrical
engineering cannot be treated as a higher qualification with
reference to the prescribed qualifications in the recruitment
rules. The appellants by filing the writ petitions urged this court
for directing the respondents for rescinding the select panel and
redo the same, and pursuant thereto appoint them in the posts
of Sr. Instructor in the respective branch.
5. The respondents seriously resisted the claim of the
petitioners and contented that in the recruitment rules as well
as in the advertisement inviting application from the eligible
candidates for those posts there is no stipulation that if a
candidate possess a degree in the appropriate branch in the
trade from the AICTE recognized institution he will be barred
from offering the candidature. Thus, there is no infirmity in the
decision of the official respondents.
6. Learned single judge by the order dated 03.12.2019
dismissed the writ petitions by rejecting the contention that the
private respondents who were possessing degrees in the
required branch of engineering were not eligible for
appointment. Per contra, in reference to the contention of the
official respondents that the respondents No. 4 to 8 were
eligible, the learned single judge has observed that it is an
accepted norm that degree in the relevant branch is a higher
qualification than diploma in the concerned branch. Whether in
terms of the recruitment rules a degree holder should be held
eligible is not so much a matter of interpretation of rules but of
equivalence of technical/ educational qualification. It has been
held time and again that where it comes to the question of
deciding equivalence on educational qualification, it is the
opinion of the employer, duly supported by the opinion of the
expert must have the higher acceptability. It is not disputed
that in the case in hand, according to the learned single judge,
it has not been disputed that the respondents No. 4 to 8 do
possess the degree in the relevant field and upon being tested
during the selection tests were found more meritorious than the
rival candidates.
7. Thereafter, learned single judge having regard to the
decision of the apex court, as relied, has observed as follows:
"In case of Jyoti K.K. (supra), the Supreme Court had
observed that a person holding higher educational
qualifications than those prescribed under the Rules
would be qualified for being appointed. Even in the
decision in case of Zahoor Ahmad Rather (supra) relied
upon by the counsel for the petitioners, the Supreme
Court had observed that the State as an employer is
entitled to prescribe qualifications as a condition of
eligibility after taking into consideration nature of the job,
aptitude required for discharge of duties etc. It was
observed that equivalence of qualification is a matter for
State, as recruiting authority to determine. It was the
case in which the State Government as an employer had
refused to accept Diploma as a necessary qualification
though stated to be higher than the qualification of ITI
prescribed by the Rules. Facts in the present case are to
be contrary. It is the State in the present case which has
held that on the principle of equivalence a Degree holder
in the relevant field of Engineering would be qualified for
the post which prescribes a minimum qualification of
diploma."
The said decision of the learned single judge has
been challenged in these appeals.
8. Mr. Somik Deb, learned counsel appearing for the
appellants has submitted tha the proposition as held by the
learned single judge is inconsistent with the decision of the
apex court. He has for that purpose, referred P.M. Latha &
Anr. Vs. State of Kerala & Ors., reported in (2003) 3 SCC
541 where the apex court has observed that holding the degree
cannot necessarily be held to be holding qualification suitable
for appointment. Whether for a particular post the source of
recruitment should be from the candidate with the prescribed
qualification or the higher qualification is a matter of the
recruitment policy. Whether the higher qualification can be
accepted for the post where a lesser qualification has been
prescribed by the recruitment rules? This question becomes
paramount in these appeals.
9. Reference has been made to Yogesh Kumar and
Ors Vs. Govt. of NCT. Delhi and Ors. reported in (2003) 3
SCC 548 where the apex court had occasion to observe that
the recruitment to public services should be held strictly in
accordance with the terms of advertisement and the
recruitment rules, if any. Deviation from the rules allows entry
to ineligible persons and deprives many others who could have
competed for the post. The recruitment authorities having due
knowledge that the higher qualification [in this case, the degree
in engineering] are available, yet they chose to restrict entry for
appointment only for person who have passed the presecribed
qualification. It has been also held that it is open to the
recruiting authorities to evolve a policy of recruitment and to
decide the soruce from which the recruitment is to be made. It
cannot be disputed that the degree of engineering is a higher
qualification in comparison to the diploma in engineering and
there cannot be any parity whatsoever.
10. In Dilip Kumar Ghosh & Ors. Vs. Chairman &
Ors., reported in (2005) 7 SCC 567 the apex court has held
that it is siginificant to note that the recruitment rules are
framed to achieve the object of finding out the suitable person
for the recruitment. In Dilip Kumar Ghosh (supra), the apex
court has embarked on a comparative study of the courses,
which may be called in tis context, lower and higher. Therafter,
it has been observed that when the qualification is prescribed,
several factors are considered. Notwithstanding that, it has
been further observed that to accept a proposition that a
candidate who holds a degree in the required field, that is,
higher degree cannot be deprived appointment to the post, as
that would negate the aims and objects of the Recruitment
Rules for the purpose for which those were framed. The
recruitment rules are framed, as stated, primarily for
recruitment to the post so that the perosns who are slected can
discharge the required duty efficiently.
11. Having referred P.M. Latha (supra) it has been
repeatedly asserted by Mr. Deb, learned counsel for the
appellants that qualifications prescribed for the post in the
advertisement published in the final gazette cannot be by-
passed for accommodating the candidates with higher
qualification. It has been re-stated that merely for possessing
the higher degree a candidate cannot be treated as eligible for
selection. Similar view has been also taken in Yogesh Kumar
(supra).
12. Mr. Deb, learned counsel has made reference to
State of Punjab & Ors. Vs. Anita & Ors., reported in (2015)
2 SCC 170 where the apex court has observed that on perusal
of the previous judgments such as P.M. Latha (supra) and
Yogesh Kumar (supra) there is no room for any doubt that it
is imperative for the candidates to possess the statutory
qualification prescribed for appointment to which they are
seeking appointment. A candidate who possesses the higher
qualification per se cannot be treated as having the qualification
with reference to the presecribed qualification.
13. In Jyoti K.K. & Ors. Vs. Kerala State Public
Service Commission & Ors., reported in (2010) 15 SCC 596
it has been observed as follows:
"7. It is no doubt true, as stated by the High Court that
when a qualification has been set out under the relevant
Rules, the same cannot be in any manner whittled down
and a different qualification cannot be adopted. The High
Court is also justified in stating that the higher
qualification must clearly indicate or presuppose the
acquisition of the lower qualification prescribed for that
post in order to attract that part of the Rule to the effect
that such of those higher qualifications which presuppose
the acquisition of the lower qualifications prescribed for
the post shall also be sufficient for the post. If a person
has acquired higher qualifications in the same Faculty,
such qualifications can certainly be stated to presuppose
the acquisition of the lower qualifications prescribed for
the post."
[Emphasis Added]
14. Finally, it has been held that a post that remains
unfilled, can be filled up with persons possessing qualification,
i.e. graduate/post-graduate/B.Ed. That was not the procedure
which came to be adopted during selection. Thus, per se, no
benefit can flow to the private respondents for having the
degree. If any action is taken contrary to the recruitment ruels
that would be a clear violation of the statutory process of
selection and appointment, as postulated under such rule.
15. Mr. Deb, learned counsel has also pressed into
service another decision of the apex court in Zahoor Ahmad
Rather & Ors Vs. Sheikh Imtiyaz Ahmad & Ors. reported in
(2019) 2 SCC 404. In that decision, the apex court having
considered P.M. Latha (supra), Yogesh Kumar (supra), and
State of Punjab & Ors. Vs. Anita & Ors., (supra), but a two
judge bench of the apex court has reiterated the position that
the candidate having degree than the certificate course should
be held to be eligible to compete for the post. Even reference
has been made to Jyoti K.K. (supra) where it has been held
that the possession of a higher qualification can presuppose the
acquisition of lower qualification prescribed for a post.
16. The apex court in Zahoor Ahmad Rather (supra)
has categorically held that the interpretation which is structured
on the judgment in Jyothi K.K. (supra), has held that it would
not be permissible to draw an inference that a higher
qualification necessarily presupposes the acquisition of another,
albeit, lower qualification. The prescription of qualification for a
post is a matter of recruitment policy. The state as the
employer is entitled to prescribe the qualification as a condition
of eligibility. It is not part of the rule or function of the judicial
review to expand upon the ambit of prescribed qualification.
Similarly, equivalence of qualification is not a matter which can
be determined in exercise of the power of judicial review.
Whether a particular qualification should or should not be
regarded as equivalent is a mater for the State as the recruiting
authority to determine.
17. The decision in Jyoti K.K. (supra) turned on the
specific statutory rule under which holding of a higher
qualification can presuppose acquisition of lower qualification.
Zahoor Ahmad Rather (supra) may make a crucial difference
to the ultimate outcome. What was decided by the high court
was held to be justified in refering the judgment of the learned
single judge [in Zahoor Ahmad Rather (supra)] and in
coming to the conclusion that the appellant of Zahoor Ahmad
Rather (supra) did not meet the prescribed qualification. The
apex court held that there is no error apparent in the decision.
18. Reference has also been made to Zonal Manager,
Bank of India & Ors. vs. Aarya K. Babu & Anr., reported in
(2019) 8 SCC 587 where it has been held that whether the
courts would be justified in undertaking the exercise of
determining equivalence of another qualification so as to
declare it to be equivalent to the qualification prescribed in the
recruitment notification by taking note of the factors, may or
may not be germane, though such equivalence of qualification
is not declared by the employer? In response, it has been held
in Aarya K Babu (supra) as follows:
"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 Mohd.
Shujat Ali v. Union of India [Mohd. Shujat Ali v. Union of
India, (1975) 3 SCC 76 : 1974 SCC (L&S) 454] 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."
19. Mr. D Bhattacharjee, learned GA appearing for the
official respondents has stated that the respondents No. 4 to 8
have been selected as they had while prosecuting the degree of
the relevant engineering branch studied the course materials
which are prescribed for the diploma course and hence, there is
no reason why the decision of the learned single judge be
interfered with.
20. Mr. Bhattacharjee, learned GA has referred a
decision of the apex court in Chandigarh Administration Vs.
Usha Kheterpal Waie & Ors. reported in AIR 2011 SC 2956.
It has been held in that decision that what is relevant to test
the validity of the advertisement was the intention of the
recruiting authority when the advertisement was issued. At tht
time, the appellant had the clear intention to enforce the
recruitment rule in future. However, in absence of valid rules, it
cannot be said that the advertisement was invalid. In exercise
of its executive power, the appellant could issue administrative
instructions from time to time in regard to all matters which
were not governed by any statute or rules made under the
Constitution or a statute. This decision is only relevant when
there are no recruitment rules but in the advertisement the
recruiting authority has given the condition of service including
the requisite qualifications.
21. Mr. TD Majumder, learned counsel appearing for the
respondents No. 4, 5, 7 and Mr. SM Chakraborty, learned senior
counsel assisted by Ms P Sen, learned counsel appearing for the
respodnetn No. 6 have adopted the basic plea of the official
respondents. In some matters, Mr. D Sharma, learned Addl. GA
has appeared for the official respondents in lieu of Mr.
Bhattacharjee, learned GA. Mr. Sharma, learned Addl. GA has
adopted the submission of Mr. Bhattacharjee, learned GA.
22. Mr. Majumder, learned counsel has in addition relied
on Chandigarh Administration (supra) to refer the following
passage from the said report. ".......When the said qualification is
not unrelated to the duties and functions of the post of Principal
and is reasonably relevant to maintain the high standards of
education, there is absolutely no reason to interfere with the
provision of the said requirement as an eligibility requirement.
It is now well settled that it is for the rule-making authority or
the appointing authority to prescribe the mode of selection and
minimum qualification for any recruitment. The courts and
tribunals can neither prescribe the qualifications nor entrench
upon the power of the authority concerned so long as the
qualifications prescribed by the employer is reasonably relevant
and has a rational nexus with the functions and duties attached
to the post and are not violative of any provision of the
Constitution, statute and rules. (See J. Ranga Swamy v. Govt.
of A.P. [(1990) 1 SCC 288 : 1990 SCC (L&S) 76] and P.U.
Joshi v. Accountant General [(2003) 2 SCC 632 : 2003 SCC
(L&S) 191] .) In the absence of any rules under Article 309 or
statute, the appellant had the power to appoint under its
general power of administration and prescribe such eligibility
criteria as it is considered to be necessary and reasonable.
Therefore, it cannot be said that the prescription of PhD is
unreasonable."
23. Mr. Majumder, learned counsel has also referred the
decision of the apex court in Jyoti K.K. (supra) to contend
further that the qualification of degree in engineering not only
presupposes the acquisition of lower qualification of diploma in
that subject prescribed for the post shall be considered to be
sufficient for that post.
24. Mr.Majumder, learned counsel has also referred to
another decision in Mohd. Riazul Usman Gani & Ors. vs.
district & Sessions Judge, Nagpur & Ors. reported in
(2000) 2 SCC 606 where the apex court has laid down the
principle quite succinctly in the following words.
"13. Laying of criteria when there are a large number of
candidates is permissible but that criteria must be
reasonable and not arbitrary having regard to the post for
which recruitment is made."
25. It has been further observed in the said report that a
criteria which has the effect of denying a candidate his right to
be considered for the post on the principle that he is having
higher qualification than prescribed cannot be rational.
26. Mr. Maumder, learned counsel has finally relied on a
deicison of the Single Judge of this Court in Smt. Bani
Debbarma Vs. The State of Tripura & Anr. [order dated
08.01.2019 delivered in WP(C) 1521 of 2017] where this Court
had held that the State shall treat the degree in Pharmacy as a
higher qualification of the diploma in pharmacy. On that
premise the respondents were directed to consider whether
such higher degree presupposes the acquisition of lower
qualification or not and act accordingly. If it is found that higher
qualification presupposes the lower qualification, a person may
be treated as eligible for the post. If it is found that the
qualification presupposes the acquisition of the lower
qualification, the person having such higher qualification be
treated as having the requisite qualification. In that case, the
inference that had been drawn is that degree holder would be
accommodated against the vacancy.
27. Mr. SM Chakraborty, learned senior counsel has also
submitted that the plea that has been raised by Mr. Somik Deb,
learned counsel cannot be sustained in view of the decision in
Chandrakala Trivedi Vs. State of Rajasthan & Ors.
reported in (2012) 3 SCC 129 where the apex court has
observed that the word "equivalent" must be given a
reasonable meaning. By using the expression "equivalent" one
means that there are some degrees of flexibility or adjustment
which do not however, lower the stated requirement. There
may be some difference between what is equivalent and what is
exact.
28. Mr. Somik Deb, learned counsel in reply has stated
that the respondents have not taken any exercise to consider
whether the degree in the relevant branch of engineering
presupposes acquisition of the diploma in engineering. Hence,
according to Mr. Deb, learned counsel for the appellants, the
decision of the learned single judge requires to be interfered
with and selection and appointment of the respondents No. 4 to
8 be set aside.
29. Having considered the submission of the learned
counsel for the parties, this Court at the outset would observe
that a coordinate bench of equal strength of this Court had
occasion to deal with the similar issue and in that Bench one of
us (Chattopadhyay J) was a member. We are making reference
to Sri Chakrapani Das Vs. Sri Bhaskar Das & Anr. [dated
10.03.2021 delivered in WA 03 of 2017[. In that case, this
court having appreciated all those decisions including the
decision in State of Haryana & Anr. Vs. Abdul Gaffar Khan
& Anr. reported in (2006) 11 SCC 153, Maharashtra Public
Service Commission, through its Secretary Vs Sandeep
Shriram Warade & Ors, reported in (2019) 6 SCC 362 has
observed that the court would not undertake the exercise of
judging equivalence, particularly when the employer has come
to the conclusion that the qualification other than one
prescribed in the recruitment rules can be equated. One
decision rendered by the apex court has been no doubt in the
background of appointment to the post of primary school
teachers where Teachers Training Certificate or similar such
certificate course by whatever name it is called, was seen as a
specialized course meant for training a person for imparting
education to young children or primary schools. A B.Ed. course
which did not focus on that special requirement was considered
neither higher nor equivalent.
30. In that case, according to the said corordinate
Bench, the employer had come to the conclusion that the
degree in engineering in the relevant field is a higher
qualification than the diploma in the same subject and that
holder of such degree would be eligible for selection.
31. In Maharashtra Public Service Commission
(supra) the apex court has held as follows:
"9. The essential qualifications for appointment to a post
are for the employer to decide. The employer may
prescribe additional or desirable qualifications, including
any grant of preference. It is the employer who is best
suited to decide the requirements a candidate must
possess according to the needs of the employer and the
nature of work. The court cannot lay down the conditions
of eligibility, much less can it delve into the issue with
regard to desirable qualifications being at par with the
essential eligibility by an interpretive rewriting of the
advertisement. Questions of equivalence will also fall
outside the domain of judicial review. If the language of
the advertisement and the rules are clear, the Court
cannot sit in judgment over the same. If there is an
ambiguity in the advertisement or it is contrary to any
rules or law the matter has to go back to the appointing
authority after appropriate orders, to proceed in
accordance with law. In no case can the Court, in the garb
of judicial review, sit in the chair of the appointing
authority to decide what is best for the employer and
interpret the conditions of the advertisement contrary to
the plain language of the same."
32. Thus, we are of the view that the decision of the
employer in respect of parity or equivalence may not be
disturbed. Even though, the degree is not the requisite
qualification in the recruitment rules but the degree might
presuppose acquisition of diploma course in relevant branch of
engineering. Since presupposing of the acquisition of the
requisite qualification should be left with the recruiting
authority, unless it is shown that such decision was grossly
arbitrary or highly unreasonable, we are not inclined to exercise
our power of judicial review, more particularly, having regard to
the decision of the co-equal Bench of this Court in Chakrapani
Das (supra).
33. In the result, all these appeals are dismissed.
However, there shall be no order as to costs.
JUDGE JUDGE
lodh
