Jammu & Kashmir High Court
Bhushan Kumar Sharma vs Ajeet Kumar And Ors on 2 June, 2022
Bench: Dhiraj Singh Thakur, Rahul Bharti
S. No.
HIGH COURT OF JAMMU AND KASHMIR & LADAKH
AT JAMMU
LPASW No.123 of 2016
c/w
LPASW No. 139 of 2016
LPASW No. 26 of 2018
LPASW No. 27 of 2018
Reserved on: 21.04.2022
Pronounced on: 02.06.2022
Bhushan Kumar Sharma ...Appellant(s)
Through :- Mr. Rahul Pant, Sr. Advocate with
Mr. Anirudh Sharma, Advocate in LPASW No.
123 of 2016
Mr. Abhinav Sharma, Sr. Advocate with
Mr. Abhimanyu Sharma, Adv. in LPASW No.
139 of 2016
Mr. Gagan Basotra, Sr. Adv. with
Ms. Navdeep Kour, Adv. in LPASW No. 26 of
2018
Mr. M. Y. Akhoon, Advocate vice
Mr. F. A. Natnoo, Advocate in LPASW No. 27 of
2018
v/s
Ajeet Kumar and ors. .....Respondent (s)
Through :- Mr. Amit Gupta, AAG for R-1 in LPASW Nos.
139 of 2016 and 26 of 2018 and for R-2 in
LPASW Nos. 123 of 2016 and 27 of 2018
Mr. Abhinav Sharma, Sr. Advocate with
Mr. Abhimanyu Sharma, Adv. in LPASW No.
123 of 2016
Mr. Jatinder Choudhary, Advocate for R-6 in
LPASW No. 26 of 2018
Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
(Rahul Bharti-J)
1. A selection process, be it in the arena of education or employment, invites perennial grievance of the non-selected against the selected ones to become subject matter of judicial review litigation of simple to complicated nature and the present Letters Patent Appeal (LPA in short) before us is representation of the same natured grievance and which has resulted in a simple case turned complex.
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2. Judgment dated 26th July, 2016 in SWP no. 1563/2005 by the learned Writ Court has invited four letters patent appeals (LPAs in short) rendering the writ petitioner, the respondents and even a non-party aggrieved is a testament to the nature of the controversy in the case and the effects of the judgment passed.
3. As it is in SWP no. 1563/2005 that the impugned judgment has come to be passed bringing four LPAs before us, so for the sake of understanding the case the narration of facts and circumstances is to be drawn from the said writ petition and to avoid confusion regarding the placement of the parties the reference to them shall be made as they figure in the writ petition and not as they are in the LPAs.
4. The respondent no. 2 i.e., the J&K Public Service Commission (JKPSC in short) came to undertake a selection process for appointment in the School Education Department to the posts of Lecturer 10+2 in the various disciplines of study vide its Notification no. 10-PSC of 2003 dated 10/09/2003.
5. Amongst sixteen named disciplines, one of them at serial no. 13 was Sanskrit and for that selection was to be for single reserved post belonging to Resident of Backward Area (RBA in short). The prescribed qualification required to apply for selection cited in the said notification for the enlisted disciplines was Master's Degree in the relevant subject.
6. In so far as the selection process for the said post of Lecturer in Sanskrit is concerned, the same culminated in the selection and consequent appointment of the respondent no. 4 to the post of Lecturer 10+2 Sanskrit in the year 2005. Eleven candidates had appeared and competed in the interview out of which the respondent no. 4 got selected whereas the petitioner's place in the merit list was fourth, thus there were three other ahead candidates. It is called for here to mention here that the selection of the respondent no. 4 was on the basis of overall performance at the interview, academics and other relevant experience. The respondent no. 4 has to his credit passing of the University Grants Commission (UGC) 3 LPASW No.123 of 2016 a/w connected matters.
National Eligibility Test (NET) Examination in the Sanskrit Traditional Subjects in the year 1999 for lecturership in the Universities/Colleges. The respondent no. 4 is also Ph.D of 2005 from Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth. The selection of the respondent no. 4 was notified by the respondent no. 2 vide its notification no. PSC/DR/+2/ Sanskrit/04 dated 18th August, 2005.
7. The petitioner felt aggrieved of his non selection and the corresponding selection of the respondent no. 4 and thus came to file the writ petition SWP no. 1563/2005 on 2nd November, 2005 before this Court. By the time the writ petition had come to be filed, the respondent no. 4 had stood appointed to the post. Vide an interim order dated 7 th November, 2005 the appointment of the respondent no. 4 was subjected to the outcome of the writ petition.
8. In his writ petition, the grievance of the petitioner proceeded on his claim that while he is M.A in Sanskrit from the Jammu University of the pass year 1998 whereas the respondent no. 4 was not having the said requisite qualification M.A Sanskrit and instead he was M.A in Jyotisha and not M.A in Sanskrit which was the requisite and prescribed qualification as per the advertisement notification. Thus on this solitary plea, the petitioner had rested his claim in the writ petition for the relief of quashment of selection notification dated 18th August, 2005 and for mandamus for consideration of his claim to the appointment.
9. Interestingly, the writ petition came to be dismissed vide judgment dated 3rd April, 2008 upon the consideration of the objections then filed only by the respondent no. 2 i.e. the J&K PSC but the said judgment came to be set aside in LPA SW 98/2008 vide a judgment dated 27 th May, 2013 by the Division Bench by remanding the matter for disposal only after being first admitted to hearing.
10. Three sets of reply cum objections came to be filed to meet the case of the petitioner. The respondent no.1 i.e., the State of J&K filed its own reply, the respondent no. 2 & 3 being the J&K PSC and its Secretary filed their own objections and the respondent no. 4 filed his Reply cum 4 LPASW No.123 of 2016 a/w connected matters.
Objections. The case of the petitioner came to met by the response that the respondent no. 4 was possessing prescribed qualification of M.A. Sanskrit as he was Acharya (Master of Arts) in Jyotisha 1st Division from the recognized Institution namely Rashtriya Sanskrit Sansthan which is M.A. Sanskrit from any regular University. The respondent no. 3 J&K PSC came to defend its decision of selection of the respondent no. 4 by citing in its reply cum objections a clarification addressed to the respondent no. 2 J&K PSC from the University of Jammu tendered by the Assistant Registrar in the form of Communication no. FACD/V/05/2030 dated 28 th June, 2005 informing thereby that examination of Acharya in Sidhant Jyotisha and Acharya in Phalit Jyotisha from the Rashtriya Sanskrit Sansthan New Delhi are recognized by the University of Jammu equivalent to M.A. Sanskrit which paved the way for final consideration and selection of the respondent no. 4 for appointment. The respondent no. 1, as being the employer, chose not to differ with the stand taken by the respondent no. 2 in selection of the respondent no. 4.
11. In so far as the respondent no. 4 is concerned, he, in very emphatic terms met the case of the petitioner. In his reply cum objections, the respondent no. 4 submitted that the petitioner had done his Shastri which is Bachelor of Arts (B.A) degree in Sanskrit traditional subjects from the same very Rashtriya Sanskrit Sansthan from which the respondent no. 4 has done his Shastri. As per the respondent no. 4, while he had continued to study in the same very Institution for his next higher study of Acharya i.e., M.A Sanskrit, the petitioner had joined Jammu University for doing M.A Sanskrit.
12. In his reply to the writ petition, the respondent no. 4 sought to highlight the fact that if Acharya is not M.A Sanskrit, then Shastri could not be B.A Sanskrit and thus on that count the petitioner should not have been admitted for M.A. Sanskrit in the Jammu University on the basis of him being a Shastri. The respondent no. 4, in order to dispel the confusion about the status of his Acharya Degree, has averred that the position is clear from the Govt. of India, Department of Personnel and Training Communication no. 6/12/71-Estt.(D) dated 10th of July, 1973 whereby the Rashtriya Sanskrit Sansthan issued Degrees of Shastri/Acharya have been 5 LPASW No.123 of 2016 a/w connected matters.
reckoned as equivalent to various qualifications in general education set up as indicated in the said communication wherein Acharya is shown as M.A. Sanskrit and that is why the Jammu University also acknowledged the said status vide its communication no. F.ACD/V/82/92/4479 dated 27 th October, 1992.
13. The respondent no. 4 vehemently countered the petitioner's exploit of University Grants Commission's National Eligibility Test examination syllabus by submitting that said syllabus does not change the complexion of the controversy. The respondent no. 4 meant to say that the case of the petitioner was resting more on semantics attending the word Acharya Jyotisha viz. Master of Arts Sanskrit rather than the subject substance. It is fit to mention here that vide Govt. of India, Department of Personnel and Training's 10th July, 1973 communication, it was made clear that Acharya Degree was equivalent to M.A Degree.
14. The learned Writ Court in its judgment dated 26th July, 2016 came to upset the selection of the respondent no. 4 by holding that the respondent no. 2 J&K PSC had misdirected itself by treating and reckoning the respondent no. 4 as eligible for selection as against the availability of eligible candidates possessing the requisite qualification of Master's Degree in the relevant subject. It is significant to mention here that at the time of passing of the said judgment, the respondent no. 4 had come to put in an almost 10 years of service on the said post and that was the reason that the learned Writ Court, while passing the judgment, was considerate enough vide its order dated 26/07/2016 to direct keeping the judgment in abeyance for four weeks to enable the respondent no. 4 to avail the legal remedy which he availed by filing LPASW no.123/2016 wherein also vide an interim order dated 6th October, 2016 a direction came to be issued saving the respondent no. 4 from suffering ouster from the service. Thus, as on present date the respondent no. 4 has put in more than sixteen long years of continuing service. This long period of service of the respondent no. 4 is a very compelling circumstance to be kept in consideration while adjudicating the present LPAs.
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15. The judgment of the learned Writ Court caught all the stake holders in the case aggrieved i.e., first and foremost the respondent no. 4 whose selection has been upset, then the petitioner who found himself not favored with a direction for his recommendation for appointment to the post, then the respondent no. 2 i.e., the J&K PSC as being the selection authority. The petitioner came forward with his LPASW no. 139 of 2016, the respondent no. 2 with its LPASW no. 27/2018.
16. Along with the aforesaid three LPAs, the Institution of the Rashtriya Sanskrit Sansthan, New Delhi came forward with its own grievance against the impugned judgment of the learned Single Bench bearing the concern that the Degrees granted by it have been undermined and as such sought the leave of the Letters Patent Bench granted vide an order dated 15 th March, 2017 for coming on board with its LPA against the impugned judgment along with other three LPAs.
17. Heard the learned Counsel for the parties in all the four LPAs and perused the record and pleadings in the case.
18. The learned Writ Court's decision is resting on two propositions, firstly being that Jyotisha and Sanskrit are different and distinct subjects, secondly the respondent no. 4 is Acharya in Jyotisha and the conclusion there from that the respondent no. 4 is not M.A in Sanskrit. The reasoning used by the learned Writ Court for its premise is heavily drawn from its cognizance of the fact that the University Grants Commission (UGC) conducts National Eligibility Test (NET) examination in 77 different subjects in which list the Sanskrit is given code 25 whereas under code 73 are clubbed the Sanskrit Traditional Subjects in which Jyotisha is one of them. Thus, from this UGC (NET) regime the learned Writ Court afforded itself to infer and hold that had Sanskrit and Sanskrit Traditional Subjects been not separate then the UGC given code would have been one for all and not different. The learned Writ Court further inferred that the respondent no. 4 has himself qualified NET in Sanskrit Traditional Subjects and not in Sanskrit and as NET examination qualifying is a must required for lecturership for a given subject so by that standard the respondent no. 4 7 LPASW No.123 of 2016 a/w connected matters.
was rendered ineligible for Lecturer in Sanskrit though eligible for Lecturer in Sanskrit Traditional Subjects.
19. Upon probing the pleadings in the writ and the impugned judgment, we find ourselves led to an informed view that learned Writ Court, in fact, has missed the correct understanding of the writ case of the petitioner and thus affecting its judgment making. A perusal of the writ petition would show that the sole plea of the petitioner in his writ petition against the respondent no. 4's selection is that the respondent no. 4 is not M.A. Sanskrit. In saying so, the petitioner is referring to the bare assertion of fact that the respondent no. 4 is Acharya in Jyotisha which is not in any manner M.A. Sanskrit.
20. It is not the case set up in the writ by any stretch of claim that for the purpose of applying for the post in reference of Lecturer 10+2, Sanskrit, the eligibility in the advertisement, besides M.A. Sanskrit, was also NET examination passed in Sanskrit. Once the NET in Sanskrit was not in any manner being the point in issue or related to the matter in the case there was perhaps no situation for the learned Writ Court to guide its understanding from the NET Examination regime of the UGC pertaining to Sanskrit and Sanskrit Traditional Subjects.
21. What is required, provided and meant for the UGC NET Examination in the context of Sanskrit and Sanskrit Traditional Subjects could not be applied and used as test and basis to decode what was the required eligibility under the advertisement in reference which is M.A. Sanskrit and not NET pass in Sanskrit. If NET Sanskrit would have been the required eligibility for the post in reference of Lecturer 10+2 Sanskrit, then, surely, the respondent no. 4, being NET qualified in Sanskrit Traditional Subjects and not NET qualified in Sanskrit, would not have been heard to say that he be reckoned as NET qualified in Sanskrit and the entire very reasoning used by the learned Writ Court would have been in good service for saying sorry to the respondent no. 4. Thus, the learned Writ Court examined the case from a perspective which is not the one, factually and legally, set up in the writ petition by the petitioner. Passing utterance and references in the writ petition to the UGC NET domain could not have taken by the 8 LPASW No.123 of 2016 a/w connected matters.
learned Writ Court as the statement of the petitioner's case in the writ petition.
22. It was upon the requisition of the respondent no. 2, as being the employer, made to the respondent no. 3 J&K PSC that the selection advertisement was issued within the four corners of which the qualification and disqualification of the respondent no. 4 was to be found and in said prescribed qualification the UGC related NET qualification was not even remotely mentioned. Thus, we hold that the learned Writ Court ought to have restricted its application of mind within the four corners of the selection advertisement and not beyond it.
23. Testing the judgment of the learned Writ Court by its stated prescription that the respondent no. 2 J&K PSC had no material before it for treating the Acharya Jyotisha as M.A. Sanskrit, then we find that in the writ petition there was no such material available to counter the expert advice input of the Jammu University to the respondent No. 2 J&K PSC that Acharya Jyotisha qualification is M.A. Sanskrit.
24. The learned Writ Court discounted the judgment of the Hon'ble Supreme Court's judgment in Rampalit Vyakaran Acharya reported case in AIR 1975 SC 2478 by holding that the same was in the context of claim for pay scales to Acharyas and was thus in a different context. We hold that said judgment of the Hon'ble Supreme Court is useful to dispel the doubt about nature of status of Acharya Degree viz. M. A. Degree in Sanskrit.
25. The learned Writ Court overlooked the factual scenario of the said case before the Hon'ble Supreme Court wherein the Punjab University, the Single Bench and the Letters Patent Bench of the Punjab & Haryana High Court had refused to acknowledge that qualification of Acharya was M.A in Sanskrit but the Hon'ble Supreme Court of India read and understood the Govt. of India, Ministry of Education's Letter dated 23rd January, 1964 addressed to all the State Governments/Union Territories and Registrars of all Universities in its plain sense and meaning that Acharya is equivalent to M.A and the equivalence given in the said letter was upheld by the Hon'ble Supreme Court.
9 LPASW No.123 of 2016 a/wconnected matters.
26. Examining the facts of the present case, we find that the learned Single Bench was expected to appreciate a very heavyweight fact on the record of the case that the respondent no. 2 J&K PSC was on the same page as that of the University of Jammu on the fact that Acharya Jyotisha (Phallit/Sidhant) from the Rashtriya Sanskrit Sansthan is recognized to be M.A. Sanskrit. To this recognition of the status of Acharya Jyotisha (Phalit/Sidhant) as M.A. Sanskrit by the respondent no. 2 in the case of the respondent no. 4 was not objected to even by the Employer that is the respondent no. 1 which is the State of J&K.
27. To what extent then was the case actually set up in the writ petition by the petitioner for questioning the said position of understanding and acceptance of the respondent no. 2 joined by the University of Jammu ought to have been first discerned by the learned Writ Court before proceeding to dislodge the respondents no. 1 & 2's as well as that of the University of Jammu's stand weighing in favour of the respondent no. 4 holding him as M.A. Sanskrit on account of being Acharya Jyotisha. Without any writ pleadings to the said effect, the learned Writ Court deemed a case which is not there at all from the petitioner's end. In fact, the petitioner chose not to have his challenge registered to said effect by filing any rejoinder to the writ reply submitted by the respondent no. 1 & 2 backed by the University of Jammu's expert input advice. Whether or not said expert advice input of the Jammu University to the respondent no. 2 J&KPSC was sound in saying that Acharya Jyotisha is M.A. Sanskrit would have been gone into only when the same was found to be forming the subject matter of challenge in the writ petition of the petitioner. To observe it very safely in our estimate that is not the case of the petitioner in his writ petition that the standpoint of the respondents 1 & 2 as well as that of the University of Jammu was wrong and misconceived and the selection of the respondent no. 4 based thereupon was vitiated. It was too serious and important an issue of educational status of a degree, which is as to the scope of expression Sanskrit as subject in co-relation to its specialties in the context of Master of Arts level, which could not have been adverted to without being first put into the writ pleadings with clarity involving and impleading not only the University of Jammu but even the Union of India 10 LPASW No.123 of 2016 a/w connected matters.
through its concerned Department of Government of India and also the Rashitrya Sanskrit Sansthan as party respondent as well before taking final call.
28. In M. C. Gupta and ors. v. Dr. Arun Kumar Gupta and ors., (1979) 2 SCC 339, Hon'ble the Supreme Court at paragraphs 7, 8 and 10 has dealt with the similar like situation involving academic issue of "Medicine" and its specialties and the extent to which scope of Article 226 Constitution of India is available to displace the expert advice/opinion of Academic Bodies. The relevant paragraphs are self speaking as to its subject which are reproduced as under:
"7. Before the rival comments are probed and analysed, it would be necessary to keep in view the twilight zone of Court's interference in appointment to posts requiring technical experience made consequent upon selection by Public Service Commission, aided by experts in the field, within the framework of Regulations framed by the Medical Council of India under Section 33 of the Indian Medical Council Act, 1956, and approved by the Government of India on 5th June 1971. When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing teaching/research experience in technical subjects, the Courts should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent 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 can be. Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it in making the selection and recommending the selectees for appointment, the Court in exercise of extraordinary jurisdiction to enforce rule of law, may interfere in a writ petition under Article 226. Even then the Court, while enforcing the rule of law, should give due weight to the opinions expressed by the experts and also show due regard to its recommendations on which the State Government acted. If the recommendations made by the body of experts keeping in view the relevant rules and regulations manifest due consideration of all the relevant factors, the Court should be very slow to interfere with such recommendations (see, The University of Mysore and Anr. v. C.D. Govinda Rao and Anr. In a more comparable situation in State of Bihar and Anr. v. Dr. Asis Kumar Mukherjee, and Ors., this Court observed as under:11 LPASW No.123 of 2016 a/w
connected matters.
Shri Jagdish Swaroop rightly stressed that once the right to appoint belonged to Government the Court could not usurp it merely because it would have chosen a different person as better qualified or given a finer gloss or different construction to the regulation on the score of a set formula that relevant circumstances had been excluded, irrelevant factors had influenced and such like grounds familiarly invented by parties to invoke the extraordinary jurisdiction under Article 226. True, no speaking order need be made while appointing a government servant. Speaking in plaintitudinous terms these propositions may deserve serious reflection. The Administration should not be thwarted in the usual course of making appointments because somehow it displeases judicial relish or the Court does not agree with its estimate of the relative worth of the candidates. Is there violation of a fundamental right, illegality or a skin error of law which vitiates the appointment
8. With these blurred contours of periphery of jurisdiction under Article 226 to interfere with selections made by an independent body like Public Service Commission not attributed any mala fides, assisted by four experts in the field who presumably knew what constituted teaching/research experience, what institutions are treated prestigious enough, in which teaching/research experience would be treated valuable, we may examine the rival contentions.
10. The controversy centers round the connotation of the expression 'medicine'. Does it include Cardiology or Cardiology is a separate Branch? Section 2(f) of the Act defines medicine to mean modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery. This is too wide a definition to assist us in the problem posed for the decision of the Court. In the world of medical science there are general subjects and specialties. Medicine and surgery are general subjects. To wit, Cardiology is a specialty in medicine and orthopedics is a specialty in surgery. Even the regulation from page 8 onwards bears the heading 'Specialist Branch under Medicine and Surgery'. Cardiology finds its place as a specialist branch under medicine. The relevant regulation requires teaching/research experience in medicine. Contention is, if any one who has teaching/research experience in Cardiology, could he be said to have such experience in medicine? In this context we must recall Regulation 4 which provides that 50% of the time spent in recognized research after obtaining the requisite post-graduate qualification shall be counted towards teaching experience in the same or allied subject provided that 50% of the teaching experience shall be the regular teaching experience. If research in allied subject can be taken to satisfy the requisite experience, teaching 12 LPASW No.123 of 2016 a/w connected matters.
experience in a specialty under the general head could not be put on an inferior footing. Undoubtedly, if the post is in a specialist department, the requisite teaching/research experience will have to be in the specialty. To illustrate, if one were to qualify for being appointed as Professor/ Associate Professor of Cardiology, his teaching experience must be in Cardiology though his research experience could as well be in Cardiology or allied subject. A person having such experience in the general subject medicine cannot qualify for the specialty. That it what distinguishes the specialty from the general subject. This becomes clear from the fact that in a number of hospitals there may not be posts in specialist branches and someone working in the general department may be assigned to do the work of specialist branches. If a particular hospital has not got Cardiology as a specialist branch, a Reader or Assistant Professor in the Department of Medicine may be required to look after Cardiology cases and teaching of Cardiology as a subject. In that event he is certainly a Reader/Assistant Professor in Medicine teaching one of the subjects, viz., Cardiology which again forms part of the general curriculum of the subject of medicine. Therefore, it is not proper to divorce a specialist branch subject from the general subject. It cannot be seriously contended that medicine does not include Cardiology. To be qualified for the specialist branch of Cardiology, the minimum academic qualification is M.D. (Medicine). This would clearly show that after acquiring the general qualification one can take the specialist branch. If any other approach is adopted it would work to the disadvantage of the person who while being posted in the Department of Medicine, is asked to teach a subject which is necessary for being taught for qualifying for M.D. but which can be styled as specialty. He would simultaneously be denied the teaching experience in the subject of Medicine. An extreme argument was urged that in adopting this approach it may be that somebody may be working in different specialist branches such as Neurology, Gastroenterology, Psychiatry, etc. and each one would qualify for being appointed as Professor of Medicine without having even a tickle of experience on the subject of general medicine. This wild apprehension need not deter us because it should be first remembered that any one going into specialist branch under medicine has to be M.D. (Medicine). Thereafter, if he wants to become a Professor in the specialist branch such as Cardiology, the academic qualification required is to hold a degree of D.M. in the Specialist Branch. This becomes clear from a perusal of the regulations. It is not necessary, therefore, to go into the dictionary meaning of the expression 'medicine' to determine whether it includes Cardiology. The Medical Council of India, a body composed of experts have in the regulations clearly manifested their approach when they said that Cardiology is a specialist branch under medicine.
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Ipso facto, medicine includes Cardiology. It was not disputed that one qualifying for M.D. (Medicine) has to learn the subject of Cardiology. And it must be remembered that the four experts aiding and advising the Commission have considered teaching experience in Cardiology as teaching experience in Medicine. The counter-affidavit on behalf of the Commission in terms states that medicine is a wide and general subject and includes Cardiology whereas for the post of Professor of Cardiology a further two years' special training in Cardiology or D.M. in Cardiology after M.D. in Medicine has been laid down as a requisite qualification by the Medical Council. It is further stated that teaching experience in Cardiology will make the person eligible for the post of Professor of Medicine. That was the view of the experts who assisted the Commission. Incidentally it may be mentioned that Mr. V. M. Tarkunde, learned Counsel for respondents 1, 2 and 3 took serious exception to giving any weight to the counter-affidavit because it has not been sworn to by any expert aiding or advising the Commission or by any officer or Member of the Commission but by an Upper Division Assistant whose source of knowledge is the legal advice tendered to him. In paragraph 1 of the affidavit the deponent says that he has been deputed by the Commission to file the counter- affidavit on their behalf and as such he is fully acquainted with the facts deposed to in the affidavit. It is our sad experience that responsible authorities avoid filing affidavits in courts when it behoves them to assist the Court and facilitate the decision of the questions brought before the Court but on this account alone we would not wholly ignore the counter-affidavit."
29. We are refraining ourselves to be drawn into examination of the issue whether Acharya Jyotisha is or is not M. A. Sanskrit in the context of selection to the post of Lecturer 10+2 Sanskrit as the case before us has not been so set from the writ petition perspective and can thus afford no basis to undertake the judgment making on the said aspect. Letters Patent Appeal is nothing but extension of writ case coming to the intra court appellate jurisdiction of this Court.
30. It is relevant to bear in mind that the interview of eleven candidates for the post was conducted by the respondent no. 2 JKPSC with involvement of a renowned expert on the subject from one of the most reputed Universities of India. The fact or objection would not have been lost to the said Expert from being registered if the basic academic 14 LPASW No.123 of 2016 a/w connected matters.
credentials of the respondent no. 4 being M.A. Sanskrit on account of being Acharya Jyotish were found to be not one and same qualification. Thus the learned Writ Court came to displace the final say on the matter of the Employer, the Selection Authority, the apex Educational Institution of the State of J&K and also of the subject and last even of the Expert on the Subject conducting the Interview as co-participant, and in turn placed its own view simply relying upon UGC NET Examination pattern prescribed that too for Universities and Colleges Lecturer Posts. In fact, the opinion of the learned Writ Court in its judgment is meant to override the expert institutional opinion of four entities in the case.
31. To sum up the situation bearing the facts and circumstances as adverted to hereinbefore and the extent of refrain which is mandated upon the courts for dealing with the matters of academic/educational expertise, we hold that the judgment of the learned Writ Court is not sound on facts and in law and deserves to be set aside.
32. Therefore, LPASW no. 123 of 2016 filed by the respondent no. 4 as well as LPASW no. 27 of 2018 filed by the respondent no. 2, J&K PSC against the impugned judgment are allowed and the impugned judgment dated 26th July, 2016 passed in SWP No. 1563 of 2005 is set aside. LPASW No. 139 of 2016 filed by the petitioner is dismissed. With respect to LPASW No. 26 of 2018 filed by Rashtriya Sanskrit Sansthan, the same admits of no adjudication keeping in view the fact that the scope of writ petition does not envisage the requirement of examining the matter from the perspective of Rashtriya Sanskrit Sansthan.
33. Announced.
(RAHUL BHARTI) (DHIRAJ SINGH THAKUR)
JUDGE JUDGE
JAMMU
02.06.2022
(Paramjeet)
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No