Uttarakhand High Court

Rajeev Kumar Pandey vs State Of Uttarakhand And Others on 23 September, 2022

   HIGH COURT OF UTTARAKHAND AT NAINITAL


            Writ Petition No. 1415 of 2019 (S/S)

Rajeev Kumar Pandey                                     ..........Petitioner

                                     Vs.

State of Uttarakhand and others                    ........ Respondents



Present :   Mr. Atul Bahuguna, Advocate for the petitioner.
            Mr. Narain Dutt, Brief Holder for the State.
            Mr. B.D. Kandpal, Advocate for respondent no.2.
            Mr. Dinesh Gahtori, Advocate for the intervener.



                            With
            Writ Petition No. 1416 of 2019 (S/S)

Shobha Joshi                                            ..........Petitioner

                                     Vs.

State of Uttarakhand and others                    ........ Respondents



Present :   Mr. Atul Bahuguna, Advocate for the petitioner.
            Mr. Narain Dutt, Brief Holder for the State.
            Mr. B.D. Kandpal, Advocate for respondent no.2.
            Mr. Dinesh Gahtori, Advocate for the intervener.



                                JUDGMENT

Per : Hon'ble Ravindra Maithani, J.

A common question of law arises in these

petitions; therefore, they are being decided by this

common judgment.

2. The petitioners are M.Sc. (Advanced Zoology)

and also Bachelor of Education from Hemwati Nandan

Bahuguna Garhwal University, Srinagar, District Pauri

Garhwal (for short, "the University"). The respondent

no.2, Uttarakhand Public Service Commission (for short,

"the Commission") issued an advertisement on

04.09.2018 inviting applications for the post of Lecturer

including 71 posts of Lecturer Biology. As per

advertisement, the qualification for the post was as

follows:-

"(i) Post Graduation Degree in Botany or

Zoology from any University established

by law in India.

(ii) L.T. Diploma from the Government or

Government recognized Training

Institute/College or Degree in Bachelor of

Education from any University

established by law in India."

3. Both the petitioners applied for the said post

and appeared in the Entrance Examination. Both of them

qualified the Written Examination. Suddenly, it is the

case of the petitioners that the Commission, on

08.06.2019, issued a list of disqualified candidates and

both the petitioners have been shown disqualified on the

ground that they had obtained M.Sc. (Advanced Zoology).

The petitioners made their representations claiming that,

in fact, M.Sc. (Advanced Zoology) is a course run by the

University for M.Sc. (Zoology). They are one and the same.

The University certified it, but since no action was taken,

hence, the petitions.

4. The petitions were taken for hearing on

25.06.2019, when this Court directed for appointment of

a panel of experts on the subject to decide the

controversy. The Court directed as hereunder:-

"Having considered the submission of learned counsel for the parties and after going through the judgment passed by the Division Bench in the bunch of petitions, as an interim measure, it is directed that the State Government shall decide the controversy of equivalence of subject of Zoology and Advance Zoology by appointing penal of expert of the said subject. After completing of the said exercise, the said committee shall take decision in the matter at earliest, and on the basis of the expert committee decision, the State Government shall take decision, so as to end the anomaly and subject may came to the end and students who have passed their M.Sc. with Advance Zoology may not be made to suffer.

The report of the committee be filed within four weeks from today.

List this matter after four weeks.

Meanwhile, selection, if any, is made pursuant to the interview held by the respondent the same shall be subject to the final decision of the writ petition. "

5. The Commission filed counter affidavit.

According to the Commission, as per the relevant Rules,

the qualifications for the post of Lecturer (Biology) is

M.Sc. (Botany or Zoology) and L.T. Diploma from

Government or Government recognized institution or

degree college or B.Ed. degree from the University

established by law. It's the Commission case that since

the petitioners do not possess the required qualifications,

they were declared ineligible vide list dated 08.06.2019.

6. The State filed its counter affidavit. It is stated

that the compliance of Court's order dated 25.06.2019, a

Committee was constituted and the Committee reported

that the, "Syllabus of M.Sc. (Advance Zoology) and

M.Sc. (Zoology) are 90% same as such M.Sc. (Advance

Zoology) may be treated as equivalent to M.Sc.

(Zoology)". The report of the Commission has also been

enclosed. According to the State, after report of the

expert, the State Government has written to the

Commission on 28.01.2020 to declare the result as per

finding of the Expert Committee.

7. Heard learned counsel for the parties and

perused the record.

8. Learned counsel for the petitioners would

submit that pursuant to this Court's order dated

25.06.2019, the controversy has been decided by the

Expert Committee, which has opined that M.Sc.

(Advanced Zoology) and M.Sc. (Zoology) can be termed as

equivalent and thereafter, the State has also requested to

the Commission to declare the result as per Committee's

finding. Therefore, it is argued that the writ petitions may

be decided accordingly, directing the Commission to

proceed further in the matter of recruitment, in

accordance with the communication dated 28.01.2020 of

the State.

9. Learned counsel for the petitioners also relied

on the judgment in the case of Writ Petition (S/B) No.583

of 2018, Rahul Saini vs. State of Uttarakhand and others

and connected matters, decided by this Court on

12.02.2019. In fact, in the case of Rahul Saini (supra), the

dispute was with regard to equivalence of the M.Sc.

(Applied Mathematics) and M.Sc. (Mathematics). In that

case also, an Expert Committee was constituted which

after examining the syllabus of both the courses opined

that M.Sc. (Applied Mathematics) and M.Sc.

(Mathematical Science) are equivalent to M.Sc.

(Mathematics). Accordingly, in that case, the Commission

was directed to declare the result.

10. On the other hand, learned State counsel

would submit that the Rules of the game cannot be

changed in the midway. The Court cannot decide

equivalency. The petitioners were not qualified as per the

Rules.

11. Learned counsel for the Commission would

submit that yet interview has not been conducted and

based on report of the Expert Committee, the State

Government, by its letter dated 28.01.2020, has directed

the Commission to declare the result, which cannot be

done. Even if the matter is to be proceeded further, first

and foremost interview will have to be conducted.

12. Undoubtedly, the Rules of the game cannot be

changed in the midway. In fact, earlier also in Writ

Petition No.905 of 2006 (S/S), Devendra Kumar Mishra

and another vs. State and others, a controversy with

regard to equivalency between M.Sc. (Plant Science) and

M.Sc. (Botany) was raised. In that case also, a report was

given to the Court that the course and contents of M.Sc.

(Plant Science) are equivalent to M.Sc. (Botany). But, the

Court in that case had observed that, "close scrutiny of

this letter shows that Association of Indian

Universities has not on its part declared whether

M.Sc. Plant Science is really equivalent to the degree

of M.Sc. Botany. It has not even discussed what

subject are taught in M.Sc. Plant Science, which are

common or different to the subjects taught in the

M.Sc. Botany.". Apart from it, the Court while dismissing

the writ petition in the case of Devendra Kumar Mishra

(supra) observed, "that the Commission is bound by the

qualifications mentioned in the relevant Rules."

13. In the case of Ajith K. and others vs. Aneesh

K.S. and others (2019)17 SCC 147, some candidates, who

had different qualifications, applied for a post and when

objected to, an argument was raised that the candidates

had higher qualifications than the qualification for the

post. But, it was not accepted by the Hon'ble Supreme

Court observing that, "there was no determination of

equivalence of qualifications by any executive or

standing order of the State Government. Nor was

there any finding that a DHIC presuppose acquisition

of lower qualification. KPSC has not carried out any

exercise as required by the provisions of the rule."

14. In the case of Anand Yadav and others vs. State

of Uttar Pradesh and others, AIR 2020 SC 5383, a question

of equivalency arose between M.A. (Education) and M.Ed.

Before last date of submission of the application form, a

corrigendum was issued clarifying that both the courses are

equivalent. It was so done, on the basis of Expert

Committee report. In that case, the Hon'ble Supreme

Court observed that, "it is neither for the contesting

party, i.e., respondent No.3, nor for this Court to sit

as a court of appeal over the decision of the experts.".

15. The facts remain, in the case of Anand Yadav

(supra), the corrigendum was issued when still there was

time to file application forms.

16. In the case of Sridip Chatterjee vs. Gopa

Chakraborty and others, (2019)15 SCC 59, for a

particular post, the essential qualification was Masters in

Yoga/Yoga Therapy, Masters in Physical Education with

Post Graduate Diploma in Yoga/Yoga Therapy with at

least 55% marks. A candidate had Diploma in Yoga

Education, he was appointed. Challenge was made in the

High Court. The High Court set aside the appointment.

When the matter reached in the Hon'ble Supreme Court,

it was argued that it was not permissible for the Selection

Committee to change the selection criteria midway. Since,

the eligibility condition was not met by a particular

candidate, he could not have been appointed, treating

him equivalent to the essential qualifications. The Hon'ble

Supreme Court observed that, "it is not change of the

Rules or eligibility criteria midway, it is a question of

meeting the eligibility condition of the advertisement

which the expert committee has decided." The Hon'ble

Supreme Court allowed the appeal and upheld the

appointment. In para 15, the Hon'ble Supreme Court

observed as hereunder:-

"15. On the other hand, the judgments referred to by the learned counsel for the respondents are in respect of change of eligibility criteria midway of the selection process. Such is not the fact in the present case. The qualification prescribed in the advertisement remains the same i.e. postgraduate diploma in Yoga or Yoga Therapy. It is only diploma in Yoga Education which has been considered as equivalent to diploma in

Yoga or Yoga Therapy. Not only the Selection Committee has found the appellant suitable but even the Equivalence Committee, constituted in terms of the directions of the learned Single Bench, also found the diploma of the appellant as the one satisfying the requirement of the advertisement. Therefore, once the experts have taken a decision that the appellant meets the eligibility conditions of the advertisement, the Court could not have interfered with and set aside the appointment of the appellant."

17. In the instant case, this Court, as stated, on

25.06.2019, had directed the State Government to decide

the controversy of equivalence by appointing a panel of

experts. The panel of experts has given a report that

M.Sc. (Advanced Zoology) is equivalent to M.Sc. (Zoology).

Pursuant to it, the State Government had already written

to the Commission to proceed in the matter. It is not a

case of changing the eligibility criteria in the midway. In

view of the judgment in the case of Sridip Chatterjee

(supra), it is, in fact, determining the eligibility condition

of the advertisement, which the Expert Committee has

determined and the State has accepted. State is the