Allahabad High Court
Dr. Najibul Hasan Khan vs Vice-Chancellor Amu And 4 Ors. on 6 February, 2020
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 08.01.2020 Judgment delivered on 06.02.2020 Case :- WRIT - A No. - 55736 of 2016 Petitioner :- Dr. Najibul Hasan Khan Respondent :- Vice-Chancellor Amu And 4 Ors. Counsel for Petitioner :- Mohd. Afzal,Divakar Rai Sharma Counsel for Respondent :- Ikram Ahmad,Shashank Shekhar,Shashi Nandan,Siddharth Khare Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Divakar Rai Sharma, learned counsel for the petitioner; Shri Shashank Shekhar Singh, learned counsel for Aligarh Muslim University, Aligarh-respondent nos.1 to 4 and Sri Ashok Khare, learned Senior Counsel assisted by Shri Siddharth Khare, learned counsel for respondent no.5.
Present writ petition has been preferred under Art.226 of the Constitution of India assailing the selection/appointment dated 19.7.2016 of fifth respondent for the post of Deputy Registrar and further assailing the report dated 3.3.2016 as well as office memo dated 10.03.2016 issued by the office of third respondent.
Factual matrix of the case is that the Aligarh Muslim University1 published an advertisement being Advertisement No.3/2016 dated 14.5.2016 inviting applications for the Teaching /Non-Teaching posts. The controversy relates to the appointment of Deputy Registrar, AMU. In response to the advertisement the petitioner being eligible applied for the said post. The educational qualification for the said post was Master's Degree with at least 55% marks or its equivalent Grade of "B" in the U.G.C. 7 points scale along with (i) nine years of experience as Assistant Professor in the AGP of Rs.6000 and above with experience in educational administration; or (ii) comparable experience in research establishment and/ order other institutions of higher education, or (iii) 5 years of administrative experience as Assistant Registrar or in an equivalent post. The petitioner was called for interview along with 15 other candidates and finally the fifth respondent was recommended for appointment in order of merit by the AMU. The petitioner after the result had obtained certain information from the AMU under the Right to Information Act, 2005 including the selection letter/ recommendation for the appointment of the post of Deputy Registrar. On the basis of said documents it is alleged that the fifth respondent is not holding Master Degree. Infact he did his B.B.M. in the year 1999; Post Graduate Diploma in Business Administration (P.G.D.B.A.) in the year 2005 and G.M.P. in the year 2011. More so the fifth respondent was selected for the post of Deputy Registrar despite the fact that he was also not having 9 years experience as Assistant Professor and he was not having master degree. Inspite of said deficiencies the AMU Selection Committee in most arbitrary and illegal manner selected non-qualified person. Learned counsel for the petitioner has vehemently contended that P.G.D.B.A. from Symbiosis is not equivalent to the Master Degree, hence he was not qualified for the post of Deputy Registrar. The fifth respondent was working as Chief Security Officer at Department of Property and Wakf, AMU. On 10.09.2015 the fifth respondent wrote a letter to the second respondent regarding the equivalency of P.G.D.B.A. with Master's Degree of AMU. In this regard it was decided by the Academic Council on 21.1.2016 that the Post Graduate Diploma in Business Administration awarded by Symbiosis Centre for Distance Learning and M.B.A. awarded by AMU cannot be considered equivalent. The Deputy Controller (Admn.)/Office of third respondent also wrote a letter to the Registrar, Symbiosis International University, Pune asking them whether the P.G.D.B.A. of Centre for Distance Learning of the year 2003-05 is equivalent to M.B.A. Programme of the AMU or not. In reply of above letter the Symbiosis Education Society vide letter dated 3.3.2016 informed the office of third respondent that P.G.D.B.A. of Symbiosis Center for Distance Learning (SCDL) is not equivalent to M.B.A. Programme offered by Symbiosis International University. It is contended that contrary to report dated 21.1.2016 submitted by the Committee, another report was submitted by the Equivalence Committee, AMU, Aligarh on 4.3.2016 holding that P.G.D.B.A. of the SCDL, Pune can be considered equivalent to the MBA degree. The same was also approved by the Vice Chancellor on behalf of academic council. As such it is submitted that once Symbiosis International University had already held that his PGDBA of Centre for Distance Learning is not equivalent to the Master's Degree, then recognising the said PGDBA as Master's Degree by the AMU is absolutely arbitrary, malafide and illegal and as such the appointment of fifth respondent is liable to be set aside. Learned counsel for the petitioner, in support of his submissions, has placed reliance on the judgment dated 24.5.2011 passed by Delhi High Court in Dipin Arora v. Shivaji College & Ors.2 Per contra, learned counsel for AMU has vehemently opposed the writ petition and submitted that the appointment of the fifth respondent has been made strictly in accordance with law and there is no infirmity in it. The appointment was made on the basis of performance in written-cum-interview test conducted by the nominees appointed by the Executive Committee. So far as degree and experience of fifth respondent is concerned, it is categorically stated that the academic council in its meeting dated 16.6.2015 constituted a sub-committee of the academic council to determine the equivalent of the various degrees diplomas or general courses of other universities with the degree and diplomas awarded by the AMU. The above sub-committee in its meeting held on 3.3.2016 considered the application along with relevant documents of fifth respondent to determine the equivalency of 2 years of PG Diploma in Business Administration passed by him from Symbiosis Centre for Distance Learning (SCDL) with the Master's Degree of AMU. After examining all the aspects and contents of the PG Diploma in Business Administration course conferred by the Symbiosis Centre for Distance Learning, the Committee opined that the PG Diploma in Business Administration can be considered equivalent to master's degree. The minutes of the sub-committee have been approved by the Vice Chancellor on behalf of Academic Council and the same was notified vide letter dated 30.03.2016. It is further stated that the question of equivalence is within the domain of expert knowledge of the person, who are appointed for this purpose and it is settled principle of law that the decision of expert knowledge cannot be interfered by the courts. It is further contended that the petitioner was not selected due to lower merit in the performance of written-cum-interview test. He stood at merit list no.8. He cannot have a right over the post even if the claim of the petitioner is rejected. The fifth respondent got 85 marks out of 100 and the petitioner has secured 59 marks.
Learned counsel for fifth respondent has reiterated the arguments advanced by learned counsel for AMU. It is stated that the question of equivalency is to be decided by the experts in the field. In accordance with the procedure prescribed in AMU such determination has been effected by a committee of experts duly approved by the Vice Chancellor and the decision of the Vice Chancellor duly accepted by the academic council. For determining the equivalency of qualification and experience, the academic council as per procedure constituted a sub-committee of the academic council. The sub-committee submitted its detail report dated 3.3.2016. The said report provides detailed justification for treating a post graduate diploma in business Administration as equivalent to a post graduate degree of AMU. The aforesaid report was approved by the Vice Chancellor on behalf of the academic council and the decision of the Vice Chancellor was duly reported to the academic council in its next meeting. Further the letter under reference from Symbiosis Education Society is not relevant towards arriving at a conclusion with regard to decision of equivalency taken by the AMU. Once the expert committee opined that the qualification held by fifth respondent is equivalent to Masters' degree, as per the settled principle of law, the Court should not interfere with the opinion of the expert. It is also contended that the fifth respondent is also having required experience, which is apparent from Annexure No.CA-4 appended along with counter affidavit of AMU as well as from Annexure No.CA-5 appended along with counter affidavit of fifth respondent.
Heard rival submissions and perused the record.
The core issue in the present matter is as to whether the PGDBA qualification of the petitioner is equivalent to Master's degree or not. The calendar of each University provides for an Equivalence Committee to be constituted by the University and which is comprised of experts, who on an analysis of the course contents, method of teaching, method of examination etc. are to decide whether one qualification can be treated as equivalent to the other or not. In the present matter the Court is also conscious that under Art.226 of the Constitution of India it is neither the job of this Court nor this Court is competent to determine whether one qualification is equivalent to other or not. Once it has been pressed that the contesting respondent does not have minimum qualification of Master's degree and as such his appointment is not valid, only in this backdrop, the Court has proceeded to consider whether the appointment, which has been given to him is sustainable in law or not. No doubt in the present matter the petitioner has brought on record to show that the PGDBA is not recognized as Master degree by the parent University itself. In Basic Education Board, U.P. v. Upendra Rai & Ors.3 it was held that grant of equivalence is an administrative decision, which is sole discretion of the authority concerned and the Courts do not have expertise in such manner.
In the present matter the Academic Council, AMU in its meeting held on 16.6.2015 constituted a sub-committee of the academic council to determine the equivalence of the various degrees diplomas or general courses of other Universities/ institutions with the degree and diplomas awarded by the AMU. The sub-committee at its meeting held on 3.3.2016 considered the application along with relevant documents of respondent no.5 to determine the equivalency of 2 years of PG Diploma in Business Administration passed by him from Symbiosis Centre for Distance Learning (SCDL) with the Master's Degree of AMU. After having examined all the aspects and contents of the PG Diploma in Business Administration course conferred by the Symbiosis Centre for Distance Learning, the Committee opined that the PG Diploma in Business Administration can be considered equivalent to master's degree. The minutes of the sub-committee have been approved by the Vice Chancellor on behalf of academic council and the same was also notified on 30.03.2016. Along with the counter affidavit final report of the Equivalence Committee, AMU, Aligarh dated 3.3.2016 prepared by Prof. Shafey Kidwai and Prof. Arshi Khan is also appended as Annexure No.CA-3, wherein they have also considered the earlier report of the committee consisting of Prof. Khalid Azam, Prof. Parvaiz Talib and Prof. Valid Ansari, who have examined the case on the basis of two criteria-course structure and number of credits and opined that the PGDBA offerred by Symbiosis Centre for Distance Learning program, Pune and MBA awarded by this university "cannot be considered equivalent". However, the Equivalence Committee in its final report opined that the criteria adopted by the committee mentioned above seem to be limited in its scope to justify its rejection of equivalence of PGDBA/SCDL with the MBA. There are several other factors and aspects to explore realities on the ground to verify that PGDBA offerred by the SCDL Pune, which can be equated with the MBA programme of study. They have also considered various factors/ material for suggesting the consideration of the PGDBA of the SCDL, Pune equal to the MBA programme of study such as Recognition by the University Grants Committee4, HRD, Government of India; study hours and course structure factors; institutional factor; duration/Time factor as well as rationalized system. They also opined that symbiosis Centre for Distance learning program is recognised by the erstwhile Distance Education council, which is now known as Distance Education Bureau of the University Grants Commission. In December, 2012 the Human Resource Development (HRD) Ministry dissolved the DEC by repealing statue 38 in the IGNOU Act and shifted the regulatory responsibilities to the University Grants Commission (UGC). All regulatory functions including grant of permits to institutions for distance education courses are now being performed by the UGC's distance education board (DEB). Even IIMs, XLRI's does not offer MBA degrees they only give PGP diploma or PGDM since they are autonomous and independent bodies. On similar lines All India Council for Technical Education5/UGC is allowing approved colleges to run a PGDM course. Some Business Schools offering this AICTE PGDM course need not be autonomous, the PGDM course will be autonomous given by the Institute & directly approved by the bodies operating under the Ministry of HRD, Government of India. The operative portion of the report dated 3.3.2016 is quoted as under:-
"Looking into the total aspects of the PGDBA and its nature, we have come to the conclusion that the determination of the equivalence of PGDBA, SCDL, Pune (with the approval of the UGC and widely accepted as reputed institution in the country and abroad) cannot be based on only two criteria. Moreover, the quality of the MBA programme offered by the State universities cannot be equated with the similar course offerred by top class institution in the country. Candidates pursuing this programme may be benefited in varying degrees and quality depending upon the quality of teaching faculties. Therefore, equivalence cannot be based on absolute terms as there are many other aspects which can be interpreted with subjective consideration. What is most important in the field of equivalence is the fulfillment of the criteria-course coverage, contents, knowledge, learning, duration, recognition of institution, study hours, and the wider acceptability of the course, which cannot be overlooked in the matter of field of equivalence. Thus equivalence of this PGDBA programme with the MBA programme needs to be understood in the larger perspective with technical and logical consideration. Therefore, in our opinion, the PGDBA of SCDL, Pune can be considered equivalent to the MBA degree."
The AMU has also brought on record the award list of written-cum-interview for the post of Deputy Registrar, AMU, Aligarh annexed as Annexure No.CA-1 in which the fifth respondent has scored highest 85 marks out of 100 amongst 15 candidates and petitioner secured 8th position having 59 marks.
In the present matter by inviting fifth respondent i.e. Major Khan A. Saifulla to present himself before the General Selection Committee the University administration was acknowledging the validity of his academic credentials for the purposes of written examination as well as for the interview. This was endorsed by the General Selection Committee, which allowed itself to interview the candidate and even found him fit for selection (by well established practice the job of a Selection Committee is to select, or not to select, candidates in categorical terms; conditional ties on selection are inadmissible and have been frowned upon by the competent authorities).
In the University of Mysore & Anr. vs. C.D.Govinda Rao & Anr.6, the appointment of one Anniah Gowda was set aside by the High Court on the basis that he did not satisfy the qualification that he must possess either a first or a high second class Masters degree of an Indian University. The Court stated that normally, it is wise and safe for the courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the courts generally are. Area of interference by courts would be limited to whether the appointment made by the academic body had contravened any statutory or binding rule and while doing so, the Court should show due regard to the opinion expressed by the experts and on whose recommendations the academic body had acted and not to treat such expert body as a quasi-judicial tribunal, deciding disputes referred to it for decision. Equivalence of a qualification pertains purely to an academic matter and courts would naturally hesitate to express a definite opinion, particularly, when it appears that the experts were satisfied that the equivalence has already been considered and declared by it. This view has been reiterated by the Apex Court in several decisions on the question of equivalence of qualifications including the one in Rajendra Prasad Mathur vs. Karnataka University & Anr.7 It is well settled that equivalence of qualification has to be determined before a person is allowed to undergo a course or to undergo for selection. Once the equivalence was declared by the High Power Committee and accordingly Vice Chancellor on behalf of Academic council has approved the same, in such situation, to put the clock back would cause grave injustice to the selected candidate. He had not been denied to face the selection on the ground that his qualification is not equivalent to the Master's degree. Had he been denied selection on the ground that his qualification is not equivalent to the Masters degree, he might have obtained an equivalent qualification or might have not appeared in the said selection. The opportunity having been deprived to him and his equivalence having been ratified based on the recommendations of the equivalence committee, it cannot be nullified in the manner as has been asked for.
In Basic Education Board, U.P. v. Upendra Rai & Ors.8, Hon'ble the Apex Court has held that grant of equivalence and /or revocation of equivalence is an administrative decision which is in the sole discretion of the concerned authority, and the Court has nothing to do with such matters. The matter of equivalence is decided by experts appointed by the government, and the Court does not have expertise in such matters. Hence it should exercise judicial restraint and not interfere in it. As such once the AMU has taken a stand that PGDBA is equivalent to Master's degree, the Court should not interfere in it.
In the judgment in Dipin Arora (Supra) relied by learned counsel for the petitioner no doubt the Court has considered the Post Graduate Diploma in Business Administration (PGDBA) from Symbiosis Centre for Distance Learning, wherein the appointment of the petitioner was "subject to the approval of the Governing Body of the College and the University of Delhi". Upon approval of the University being sought, the University vide its letter dated 16/19th June, 2009 (impugned in the said petition) found the appointment of petitioner (Dipin Arora) to be "not in order" as he did not possess the Master's Degree with 55% marks and accordingly the University asked the College to dispense with the services of the petitioner after issuing suitable show cause notice to the petitioner. In the said matter the college was a constituent of the University and substantially funded to the extent of 95% by the University Grants Commission; therefore, the minimum qualifications as prescribed by the UGC are mandatory on the college and more so the Equivalence Committee as well as the University concerned have not approved the appointment of Dipin Arora as his qualification of PGDBA was not treated by the University as equivalent to Master's degree. In the present matter, the calendar of the AMU also provides for an Equivalence Committee to be constituted by AMU and which is comprised of experts, who on an analyses of the course contents, method of teaching, method of examination etc. are to decide whether one qualification can be treated as equivalent to the other or not. Once the AMU has taken a stand that PGDBA is equivalent to Master's degree, which was duly approved by the Academic Council, in such situation the judgment of Dipin Arora (Supra) is of rounding off and on different footing and has no application in the present case. The position in law is otherwise clear that the person, who does not have requisite qualification is not entitled to claim appointment.
In the present matter the fifth respondent has also brought on record that in response to the advertisement dated 14.5.2016 there were 25 applicants including the petitioner as well as fifth respondent. It appears that the Vice Chancellor constituted a two member committee for scrutinizing the eligibility of the applicants. The said committee comprised of Professor Arshi Khan and Professor Bilal Mustafa Khan. All the applicants were scrutinized by the said Committee and the fifth respondent was found to be eligible in terms of the advertised qualifications. More so for determining equivalence of various degrees/ diplomas of general course of other University/ Institutions with the degrees/diplomas of AMU the academic council in its meeting held on 16.6.2015 had constituted a sub-committee. The sub-committee so constituted in the meeting held on 3.3.2016 considered the claim of the applicants along with other relevant documents and after examining all the aspects and courses content of the Post Graduate Diploma in Business Administration course conferred by the Symbiosis Center for distance learning the said sub-committee opined that the the Post Graduate Diploma in Business Administration can be considered to be equivalent to the post graduation degree of AMU. The minutes of the said sub-committee were approved by the Vice Chancellor on behalf of the Academic Council and the same was notified vide letter dated 30.03.2016. The letter dated 14.10.2013 sent by the Director (Admn.) to the Registrar/Director of all the Indian Universities (Deemed, State, Central Universities/ Institutions of National importance) has also been appended along with the counter affidavit of fifth respondent as Annexure No.CA-2C, which talks about the equivalence of Degrees awarded by Open and Distance Learning (ODL) Institutions at par with Conventional Universities/ Institutions. The operative portion of the said letter is quoted as under:-
"Accordingly, the Degrees/ Diplomas/ Certificates awarded for programmes conducted by the 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."
In the case of State of Jammu & Kashmir Vs. Triloki Nath Khosa9 the Apex Court held that classification made on the basis of educational qualification with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of classification. Even in this case as regards limitations on judicial review the Court observed as under:
"JUDICIAL scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation of the basis of classification, for were such an enquiry permissible it would be open to the Courts to substitute their judgment for that of the legislature or the rule-making authority on the need to classify or the desirability of achieving a particular object."
In the present matter it is primarily the responsibility of the employer to see in the qualification the reasonable relation to the nature of duties and responsibilities.
Considering the facts and circumstances of the case, once on the basis of sub-committee report of Equivalence Committee, the AMU found the equivalence of 2 years of PG Diploma in Business Administration passed by him from Symbiosis Centre for Distance Learning (SCDL) with the Master's Degree of AMU and the same was also accorded approval by the Vice Chancellor, AMU on behalf of academic council, then in such situation the Court is of the considered opinion that this is neither the job of this Court nor this Court is competent to determine whether one qualification is equivalent to other or not. This is the sole discretion of the University concerned, which is according equivalence to the diploma/ degree offered by the other Universities/ institutions. As such on this aspect no interference is required in the matter. Along with the counter affidavit the AMU has also brought on record the award list of written-cum-interview by which it is apparent that the selection committee consisted of Pro-Vice Chancellor; one Retd. Vice Chancellor, AMU; Finance Officer, Registrar, AMU; Controller of Examination and Two EC's nominees. In the said award list out of 15 candidates 7 candidates scored higher marks than the petitioner and the fifth respondent has scored the highest marks and as such the claim of the petitioner is not sustainable. From the record it is also apparent that the fifth respondent is also having required experience.
Considering the facts and circumstances of the case, the Court does not find any infirmity or illegality in the impugned appointment order. The writ petition sans merit and is accordingly dismissed.
Order Date :- 06.02.2020 SP/