Jammu & Kashmir High Court
Gagandeep vs Union Of Indian And Others on 7 June, 2018
Equivalent citations: AIRONLINE 2018 J AND K 217
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPA No. 41/2018
MP No. 01/2018
Date of order:07.06.2018
Gagandeep Vs. Union of India and others
Coram:
Hon'ble Mr. Justice Tashi Rabstan-Judge
Hon'ble Mr. Justice Sanjay Kumar Gupta-Judge
Appearance:
For the petitioner(s) : Mrs. Surinder Kour, Sr. Advocate with Ms. Manpreet
Kour, Advocate
For the respondent(s): Ms. Sindhu Sharma, ASGI
Tashi Rabstan-J
1. This Letters Patent Appeal is directed against order dated 08.05.2018 passed by the learned Single Judge in SWP No. 30/2018, whereby writ petition filed by the writ petitioner-appellant has been dismissed being without any merit.
2. The writ petitioner-appellant by way of SWP No.30/2018 sought quashment of Order No. Rectt/AC (Works/Elect)/2017/8388 dated 05.12.2017, by which the candidature of the writ petitioner-appellant for the post of Assistant Commandant/AE (Electrical) has been rejected and also sought a direction to the respondents to consider the writ petitioner- appellant for selection/appointment for the post of Assistant Commandant/AE (Electrical) and to allow him to participate in the selection process.
3. The facts, as emerged from the writ record, are that an Advertisement Notice dated 01.03.2017 was issued by the Government of India, Ministry of Home Affairs, Directorate General Border Security Force LPA No.41/2018 Page 1 of 9 Recruitment Section, inviting applications, inter alia, for the post of Assistant Commandant (Electrical). The qualification prescribed was Degree in Electrical Engineering from a recognized University or Institution. Writ petitioner-appellant possesses a Degree in Electrical and Electronics. It was pursuant to interim direction dated 09.01.2018 passed by learned Writ Court that writ petitioner-appellant was permitted to sit in the interview. The official respondents in compliance to the said direction permitted writ petitioner-appellant to sit in the interview. Subsequently, the merit position of the writ petitioner-appellant was called for. It appears that the writ petitioner-appellant has made up the merit qua the other candidates in the said category. The issue that arises for consideration before the writ Court was as to whether in the absence of an equivalence clause, as regards qualification in the advertisement notice, it would be permissible for the Court to hold the possession of a degree other than the one prescribed by the advertisement notice as satisfying the eligibility criterion only on the basis of the same being equivalent to the prescribed qualification.
4. The writ Court, after analyzing the facts in depth and the objections filed by the respondents, opined vide judgment dated 08.05.2018 that writ petitioner-appellant has rightly been held to be ineligible by the official respondents and notwithstanding the fact that writ petitioner-appellant was permitted to participate in the selection process and made up the merit, has no right to seek appointment as being ineligible in view of the non-fulfillment of the requisite eligibility clause as regards qualification and, accordingly, dismissed the writ petition of the writ petitioner- appellant being without any merit.
5. Being aggrieved present Letters Patent Appeal has been filed on the ground that learned Writ Court has not appreciated that the qualification of Bachelor Degree in Electrical and Bachelor Degree in Electrical or LPA No.41/2018 Page 2 of 9 Electronic Engineering are the equivalent qualification; that learned Writ Court has not given any cogent reason as to why the Degree of B.Tech in Electrical and B.Tech in Electrical and Electronics are not equivalent or relevant. Respondents appear to have sought clarification from AICTE vide letter dated 07.03.2016 and 26.10.2016. AICTE vide letter dated 06.11.2017 replied that AICTE is not providing equivalence to the qualification obtained from AICTE Institution/Department at any level for higher education purposes as well as employment purpose, so it is for the employer to decide the suitability for a particular post. It is contended that the issue of determining equivalence of degree is best left to academic bodies, who are academically equipped to opine by considering various aspects, like course content, syllabi, duration of courses etc. It is also contended that after considering the syllabus and course content, the Division Bench of High Court of Delhi has held that degree of B.Tech Electrical and B.Tech in Electrical and Electronics are equal and the academy body i.e. AICTE also issued Notification thereby declaring the Electrical and Electronics Engineering relevant and appropriate branches of Electrical Engineering, but the learned Single Judge without appreciating this, rejected the case of writ petitioner-appellant on the ground that there is no equivalence in Service Recruitment Rules or advertisement notice; thus it is contended that where the experts have not given any opinion then the Courts have power to interfere and to decide that whether the qualification is relevant qualification or not.
6. Learned counsel for the writ petitioner-appellant has contended that writ petitioner-appellant has right of competition and consideration for a post and he possessed the qualification, rather more qualification than that prescribed for the post and respondents instead of considering him rejected his candidature, assigning a reason which is not sustainable in the eye of law. It is also contended that the persons having the same LPA No.41/2018 Page 3 of 9 qualification i.e. degree in Electrical and Electronics Engineering are already recruited, appointed and serving as Assistant Commandant (Electrical) in the Department, but in case of writ petitioner-appellant the respondent have deprived him knowing fully well that the Degree of Electrical Engineering and Electrical and Electronics Engineering is the same. In reply thereto, respondents have contended that as far as issue regarding person having the qualification, i.e. degree in Electrical and Electronics Engineering earlier recruited in BSF, is concerned, there might be some cases in which due to oversight such appointments were made erroneously, however, any illegality cannot be permitted to continue. In this regard, the respondents have placed reliance on a judgment of the Lucknow Bench of Allahabad High Court wherein it is held that it is for the authorities to lay down the qualification for a particular post and the Court cannot direct the authority to prescribe a particular qualification. The Courts are there to ensure that the appointments are made strictly as per terms and conditions of the advertisement. Merely because in the past there was some deviation and departure and some illegal appointments were made, a patent illegality cannot be permitted to continue. This Court would not perpetuate the illegality by directing the opposite parties to make appointments contrary to the prescribed qualification.
7. It may be noticed that as per Recruitment Rules, GSR 358(E) dated 11.05.2012, the educational qualification for the post of Assistant Commandant (Electrical) is prescribed as "Degree in Electrical Engineering from a recognized University or Institution". The Recruitment Rules are statutory in nature and the Government of India is entitled to frame statutory rules, terms and conditions of the services and also qualification for a particular post on the basis of job profile of that particular post. Accordingly, educational qualification for the post of LPA No.41/2018 Page 4 of 9 Assistant Commandant (Electrical), i.e. „Degree in Electrical Engineering‟ was mentioned in the Advertisement Notice. It is contended on behalf of the respondents that keeping in view this position of law, a case was taken up with AICTE vide Directorate General, Pers Dte, letter dated 07.03.2016 and 26.10.2016 to clarify whether degree of B.Tech in Electrical and Electronics Engineering is equivalent to degree in B.Tech in Electrical Engineering or otherwise. Vide letter dated 06.11.2017, AICTE had intimated that AICTE is not providing equivalence to the qualification obtained from AICTE‟s approved Institutions/Department at any level for higher education purpose as well as employment purpose and it is upto the employer to decide the suitability for a particular post in case of employment and upto the Institution for higher studies in case of academic purpose.
8. On a perusal of the relevant rules as also the Advertisement Notice, it is, thus, clear that what was prescribed as eligibility was only a degree in Electrical Engineering from a recognized University or an Institution and did not envisage any degree equivalent to a degree in Electrical Engineering. It is settled law that it is open to the appointing authority to lay down the requisite qualification for recruitment to the Government service. We are fortified by the view taken by the Full Bench of Punjab and Haryana High Court in case titled Som Putt v. State of Haryana and another reported in 1984 (1) ILR (Punjab) 400, wherein it is held as under :
"9......... Generally it seems somewhat elementary that the employer alone would know what are the specialties and conditions of service or post for which the incumbent is required. Therefore, it would follow that its discretion in seeking the right man for the right job should be left relatively unfettered. Consequently, no doctrinaire rule can be laid down that a technically higher educational qualification is necessarily better or more advantageous for the peculiar needs of a post for which the employer-State has prescribed lower qualifications ............"
LPA No.41/2018 Page 5 of 99. It appears that the official respondents with a view to get some clarity as to whether B. Tech Degree in Electrical and Electronics Engineering was the same as the B.Tech in Electrical Engineering, addressed a communication dated 26.11.2017 to the Director, All India Council for Technical Education (AICTE), who, however, submitted a reply dated 06.11.2017 stating therein, as per the policy, the AICTE did not provide equivalence to qualification obtained from AICTE‟s approved Institutions/Departments at any level for higher education purpose as well as employment purpose. It was further stated that it was for the employer to decide the suitability for a particular post in case of employment. This was followed by a public notice issued by the Member Secretary, AICTE, which reiterated the response earlier given to the official respondents. Be that as it may, AICTE clearly had refused to comment on the issue of equivalence between the two degrees, that is, one possessed by the petitioner and one prescribed.
10.Learned counsel for the writ petitioner has placed reliance on a Notification dated 28.04.2017 issued by All India Council for Technical Education. It needs to be emphasized that by virtue of the said Notification, the AICTE had framed the Regulations, namely, All India Council for Technical Education (Major/Core Branch of Engineering/ Technology and their relevant/appropriate courses leading to degree in Engineering/Technology) 2007. In the said regulations, the AICTE has defined the major/core branches of engineering and technology with nomenclature of under graduate and post graduate degrees relevant for recruitment to teaching positions in technical institutions. On a perusal of the said Regulations, it can be seen that with the field of electrical engineering there are several sub-branches in which a candidate may acquire his degree of engineering. From a reading of the aforementioned regulations, it becomes clear that apart from the core field of Electrical LPA No.41/2018 Page 6 of 9 Engineering, other degrees are also possible with other related subjects of Computer Engineering, Electronics (Power System) or Electronics (Sandwich) or Computer Science etc.
11.The argument of the learned counsel for the writ petitioner-appellant that anybody having acquired a degree in any of the sub-groups is nevertheless an electrical engineering, may sound attractive on the face of it, yet on a close scrutiny of the Regulations, it becomes clear that electrical engineering in isolation is also a field wherein a candidate can independently obtain a degree. The AICTE Regulations (supra) do not at all determine the equivalence but only specifies the major branches which are primarily prescribed for recruitment to teaching positions in technical institutions and not for the purpose of recruitment to any other position. The official respondents, in fact, by prescribing the requisite qualification in electrical engineering can insist on selecting only such candidates with degrees in electrical engineering and not degrees which are according to the learned counsel for the writ petitioner-appellant found equivalent thereto. Respondents have contended that there are number of courses run under major discipline of Electrical Engineering whereas the prescribed Educational Qualification in Advertisement Notice as well as the relevant Recruitment Rules is Electrical Engineering.
12.The issue of determining equivalence of degrees is best left to academic bodies who are academically equipped to opine by considering various aspects like course content, syllabi, duration of courses etc. Moreover, in the absence of any provision for equivalence either in the service recruitment rules or in the advertisement notice, the official respondents would be justified in declaring ineligible all such candidates who possessed any degree other than the degree in electrical engineering, which even, according to the AICTE Regulations discussed herein above, LPA No.41/2018 Page 7 of 9 does form an independent field of study even for the purpose of recruitment in teaching positions in the technical institutions.
13.Learned Senior counsel appearing on behalf of the writ petitioner- appellant has placed reliance upon a judgment of Delhi High Court in the case of Ms. Nisha v. UOI and ors. (Writ petition (c) No. 6100 of 2012 along with connected matters decided on 12.07.2013) to contend that degree in Electrical Engineering and degree in Electrical and Electronics are the same and both are equivalent degrees. On the other hand, learned counsel for the respondents has placed reliance upon Manoj Kumar Singh v. State of U.P. 2014 (9) ADJ 659 to contend that Division Bench of Lucknow Bench of Allahabad High Court has distinguished the Delhi High Court judgment (Supra) on the ground that although the Court had held that degrees of B.Tech (Electrical) to be equivalent to the degrees in Electrical and Electronics, yet was not the only basis for allowing the writ petitions and that there were certain other overwhelming reasons in the said judgment which were highlighted in said judgment.
14.In Tariq Islam v. Aligarh Muslim University and others (2001) 8 Supreme Court Cases 546, the Apex Court, while placing reliance upon University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491 in paragraph 7 held thus:
"7. In University of Mysore v. C.D. Govinda Rao 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 Master‟s degree of an Indian University". This 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 LPA No.41/2018 Page 8 of 9 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 this Court in several decisions on the question of equivalence of qualifications including the one in Rajendra Prasad Mathur v. Karnataka University."
15.It is settled proposition of law that Courts of law cannot pass any order beyond any statutory mandate and it is job of the Courts to give full effect to the statutory provisions. It is equally well settled that no person can be said to have any right to seek appointment dehors the rules.
16.Keeping in view the ratio of the aforementioned judgment and law on the subject, this Court would not delve into realm of adjudication to determine as to whether the degree possessed by the writ petitioner- appellant in Electrical and Electronics is equivalent to the degree of B.Tech in Electrical Engineering.
17.Thus, learned counsel for the writ petitioner-appellant is unable to persuade us to take the view contrary to the one taken by the learned Single Judge.
18.Viewed thus, we do not find any reason to interfere with the judgment passed by learned Single Judge. Accordingly, impugned judgment of learned Single Judge dated 08.05.2018 passed in SWP No.30/2018 is upheld and appeal is dismissed along with connected MP(s), if any.
(Sanjay Kumar Gupta) (Tashi Rabstan)
Judge Judge
Jammu
07.06.2018
„Madan‟
LPA No.41/2018 Page 9 of 9