Madhya Pradesh High Court
Kumari Rajni Bhadkariya vs Madhya Pradesh Public Service ... on 8 March, 2018
HIGH COURT OF MADHYA PRADESH
W.P.No.2853/14, 3284/14 and 3285/14
1
W.P.No.2853/14
Kumari Poorti Pandey
Vs.
M.P. Public Service Commission.
&
W.P.No.3284/14
Deepali Shukla
Vs.
M.P. Public Service Commission.
&
W.P.No.3285/14
Kumari Rajni Bhadkariya
Vs.
M.P. Public Service Commission.
Gwalior, Dated : 08.03.2018
Shri Anil Mishra, learned counsel for the petitioners.
Shri R.D.Jain, learned senior counsel with Shri Sangam Jain,
counsel for the respondent- M.P. Public Service Commission.
All these three cases are being disposed of by this common order but since the facts of all three cases are identical, therefore, facts of W.P.No.3285/14 have been taken.
Petitioner is aggrieved by the order passed by the Public Service Commission cancelling the candidature of the petitioner who was a candidate for the post of Scientific Officer (Biology) as was advertised by the Public Service Commission on 3.6.13 vide Annexure P/2. Petitioner's candidature has been cancelled after she had successfully appeared in the written examination on the ground that she does not fulfill the educational qualifications prescribed as per the advertisement.
It is petitioner's contention that petitioner possesses better qualification, and therefore, merely for not having Zoology subject in B.Sc., petitioner's candidature could not have been cancelled. It is also submitted that petitioner has already appeared in the interview on the strength of interim orders passed by the Court and only results are to be declared and the respondents be directed to declare such results and if petitioners are found to be successful HIGH COURT OF MADHYA PRADESH W.P.No.2853/14, 3284/14 and 3285/14 2 and are able to make a place in the merit list, then appointment orders be issued in their favour.
It is also submitted by the learned counsel for the petitioners that as per the advertisement qualification for Scientific Officer (Biology) was M.Sc. Second Class in Botany or Zoology or Bio- Chemistry of Microbiology or Biotechnology or Genetics or in Forensic Science with specialization in Forensic Biology or Forensic Serology and should have Botany, Zoology and Chemistry as subject in B.Sc.
It is also submitted by learned counsel for the petitioners that it is only on this ground petitioners have been declared to be not eligible. Petitioners' counsel has drawn attention of this Court to the syllabus which has been prescribed for Scientific Officer (Biology) and submits that in fact syllabus of Zoology is identical to the syllabus of Microbiology/Biochemistry/Biotechnology which was studied by the petitioners at their post-graduation level. Reliance has been placed on the decision of Hon'ble Supreme Court in the case of Parvaiz Ahmad Parry Vs. State of Jammu and Kashmir and others as reported in 2016 (1) SCJ 452. Reliance has also been placed on paragraphs 23 to 25 of the print out extracted from Manupatra website in which Hon'ble Supreme Court has discarded the reasoning of the High Court that to be an eligible candidate the appellant should have done B.Sc. in Forestry and since he had not done so, he was not considered as an eligible candidate. It is submitted that in fact acquiring higher qualification in the prescribed subject i.e. Forestry was sufficient to hold that the appellant had possessed the prescribed qualification and thus placing reliance on such judgment, it is submitted that petitioners have been wrongly disqualified.
Reliance has also been placed on the judgment of the Supreme Court in the case of Union Public Service Commission Vs. Gyan Prakash Shrivastava as reported in (2012) 1 SCC 537 HIGH COURT OF MADHYA PRADESH W.P.No.2853/14, 3284/14 and 3285/14 3 wherein the challenge was in regard to eligibility, qualification and experience for the post of Legal Advisor-cum- Standing Counsel as was advertised by the UPSC. UPSC had rejected respondent's candidature on the ground that he had not enclosed any document to show that he was awarded law degree by a recognized university which was an essential qualification for the post of Legal Advisor. Referring to para 7 (ii) of the instructions contained in the advertisement wherein there was an use of expression "or other certificates in support of their educational qualifications", the Supreme Court held that if a candidate did not readily have the degree or diploma certificate, he could attach attested or self certified copies of other certificates in support of his educational qualifications. It was noted that respondent had secured degree in law from Allahabad University and got himself enrolled with Bar Council of UP and a certificate to this effect was issued under Section 22 (1) of 1961 which clearly indicated that he had undergone three years course of study in law from a recognized university. Since respondent had attached said certificate to his application alongwith other certificates issued by different departments of Central Government showing his employment on different posts for two of which posts, degree in law was an essential qualification, Commission was not at all justified in refusing to entertain his application. The ratio of the law laid down in the case is that UPSC being a statutory authority is not immune from judicial review and if a competent judicial forum finds that impugned action is ultra vires Constitution or any legislation or is otherwise arbitrary or discriminatory, there will be ample justification to nullify the same.
Reliance has been placed on the judgment of the Supreme Court in the case of Chandrakala Trivedi Vs. State of Rajasthan and others as reported in (2012) 3 SCC 129 wherein the connotation of equivalent qualification has been explained and it HIGH COURT OF MADHYA PRADESH W.P.No.2853/14, 3284/14 and 3285/14 4 has been held that word "equivalent" must be given a reasonable meaning which means that there is some degree of flexibility or adjustment which does not lower stated requirement. Placing reliance on such judgment, it is submitted that principle of estoppel will be applicable and as the petitioners have been permitted to participate in the examination, therefore now they cannot be debarred or disqualified merely because they have not done their B.Sc. with Zoology as a subject.
It is submitted that a certificate has been issued by the Jiwaji University as has been enclosed alongwilth W.P.No.2853/14 as Annexure P/4, wherein Professor of Biochemistry and Dean, Faculty of Life Sciences has certified that Bachelor Degree in Science with Chemistry alongwith combination of any of the following two subjects namely Botany/Zoology/ Biotechnology/Microbiology/Biochemistry is considered as Biology/ Life Sciences group. Placing reliance on such certificate, it is submitted that looking to the qualifications of the course, petitioners should not be debarred and their candidature should be accepted.
Shri R.D.Jain, learned senior counsel appearing for the respondent, on the other hand submits that merely appearing in exam does not mean that candidature had attained finality. It is provisional. He has drawn attention of this Court to Clause 6 and 7 of the advertisement which when loosely translated, it is gathered that at the time of filling up of the online form a candidate has understood the requirement and shall mark exact and correct details. It will be presumed that the information furnished in the online form is correct information and a candidate before submitting the online form should carefully read the application and verify it before submitting the form. It is also submitted that merely filling the form will not create any preferential right in favour of the petitioners especially when they were not having the prescribed qualification as is mentioned in the rules. Learned counsel has HIGH COURT OF MADHYA PRADESH W.P.No.2853/14, 3284/14 and 3285/14 5 placed reliance on the judgment of the Supreme Court in the case of Bihar Public Service Commission Vs. Kamini and others as reported in (2007) 5 SCC 519 wherein the ratio of the law laid down is that decision of the expert committee in regard to the validity of a degree prescribing a particular subject cannot be said to be arbitrary or contrary to law. It has also been held that merely because in remote past some candidates possessing a particular qualification had been erroneously considered by Public Service Commission to be eligible for a post, cannot be a ground for a candidate possessing the same qualification to claim appointment to that post in subsequent recruitment process.
Reliance has also been placed on the judgment of the Supreme Court in the case of Rakesh Kumar Sharma Vs. State (NCT of Delhi) and others as reported in (2013) 11 SCC 58 wherein the ratio is that if a candidate did not possess requisite qualification on the last date of submission of application, though he acquired it subsequently i.e. his results were declared after last date of receipt of applications, then result of examination does not relate back to date of examination. Candidate acquires qualification only on the date of declaration of result. Reliance has also been placed on the decision of Division Bench of this Court in the case of M.P. Public Service Commission Vs. Sandeepa Malhotra and another as reported in 2012(3) M.P.L.J. 132 wherein the advertisement was issued for appointment to the post of Professor (Economics) but respondent No.1 was holding a master degree in Business Economics and Ph.D. in Economic was not called by the commission for selection on the ground that expert committee was of the opinion that respondent did not have the requisite qualification. It was held that decision of the commission that respondent No.1 had no requisite qualification at the relevant point of time for appointment was found to be in accordance with law and claim of the Public Service Commission HIGH COURT OF MADHYA PRADESH W.P.No.2853/14, 3284/14 and 3285/14 6 was upheld.
The issues involved in the present case are that (i) whether petitioners after participating in the examination are eligible to challenge terms and conditions of the advertisement, (ii) whether the qualification sought in B.Sc. can be adjudged on the parameters of qualification as has been canvassed by the petitioners when there is no clause of equivalence in the advertisement and (iii) whether decision of Public Service Commission to debar the candidature of the petitioners after having participated in the selection process upon discovery of the fact that they did not possess the necessary qualification prescribed in the advertisement can be said to be bad.
As far as first issue is concerned, Hon'ble Supreme Court in the case of Union of India and others Vs. S.Vinodh Kumar and others as reported in (2007) 8 SCC 100 has held that principles of estoppel will be applicable and those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. Same is the ratio of law laid down by Hon'ble Supreme Court in the case of K.H.Siraj Vs. High Court of Kerala and others as reported in (2006) 6 SCC 395 wherein the Hon'ble Supreme Court has held that candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum pass marks, held, on being unsuccessful in interview could not turn around and challenge the said provision of minimum marks being improper. Said challenge was liable to be dismissed on the ground of estoppel.
Similarly, the law laid down in the case of Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and others as reported in (2011) 1 SCC 150 is to the effect that there cannot be any challenge to selection criteria after participating in selection process. It is held that all the candidates knew the requirements of HIGH COURT OF MADHYA PRADESH W.P.No.2853/14, 3284/14 and 3285/14 7 the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction. Thus, petitioners after participating in the selection process are estopped from challenging the condition of qualification of B.Sc. with Botany, Zoology and Chemistry.
As far as issue No.2 of equivalence of qualification is concerned, admittedly the course material for Zoology and Biotechnology as was studied by the petitioners in their graduation level examination is having vast difference inasmuch as the study of Zoology involves both micro and macro level study of the subject which is not available in the Biotechnology. Besides, the ratio of law laid down in the case of Bihar Public Service Commission and Sandeepa Malhotra (supra) is that Courts are not required to interfere with the opinion of the expert committee as regards qualification and eligibility of the candidates/students, and therefore, this Court is of the opinion that the question of equivalence cannot be adjudged by this Court, especially when there is no such provision in the scheme of the examination.
As far as law laid down in the case of Parvaiz Ahmad Parry (supra) is concerned, the same is distinguishable inasmuch as Forestry was the requirement at graduation level. Petitioner had studied Forestry as a subject even at post-graduate level and under those facts and circumstances, law has been laid down in that case, whereas in the present case petitioners have not studied Zoology even at the post graduate level, and therefore, similarity which has been sought to be established by the petitioners is not HIGH COURT OF MADHYA PRADESH W.P.No.2853/14, 3284/14 and 3285/14 8 established for the present, and therefore, such decision of the Public Service Commission cannot be faulted with.
In fact, petitioners have placed reliance on an advertisement of Department of Atomic Energy Annexure P/20, vide which advertisement was issued for recruitment as Scientific Officer (Group-A post of Government of India). In the said advertisement, for Biosciences Discipline qualification was M.Sc. In Agriculture, Biochemistry, Microbiology, Molecular Biology, Biotechnology, Genetics, Botany, Zoology, Plant Science, Plant Breeding, Plant Pathology, Entomology, Food Technology, Animal Science, Life Sciences and Biosciences with a minimum of 60% aggregate marks in M.Sc. as well as in B.Sc. or B.E./B.Tec./ B.Sc. (Tech.) only in Food Technology with minimum of 60% aggregate marks. M.Sc. applicants should have Physics or Chemistry or Biochemistry or Agriculture Chemistry at the B.Sc. Stage or at subsidiary and /or ancillary level in case of five year integrated M.Sc. Applicants opting to be considered on the basis of a Gate Score should have a valid GATE-2013 or GATE-2014 Score in 'Life Sciences' or in 'Biotechnology'. However, it was categorically mentioned that those having M.Sc. with specialization in subjects like Fisheries, Horticulture, Forestry, Agronomy, Animal Husbandry, Marine Biology and Home Science etc and B.E./B.Tech/M.Tech. in Biotechnology/Genetic Engineering are not eligible. Therefore, even the Department of Atomic Energy did not accept the principle of equivalence. Reliance has also been placed on the advertisement issued by the Punjab Public Service Commission as contained in Annexure P/19 wherein for the post of Scientific Officer (Biology) M.Sc. Degree in Botany or Zoology or Microbiology or Biochemistry or Forensic Science or its equivalent from a recognized university or institution was prescribed but there was no condition of possessing certain basic qualification in a particular subject at graduation level, and therefore, it cannot be said that the HIGH COURT OF MADHYA PRADESH W.P.No.2853/14, 3284/14 and 3285/14 9 advertisement issued by Punjab Public Service Commission had since not prescribed any qualification at graduation level, therefore, M.P. Public Service Commission was also not entitled to prescribe any such qualification, therefore, the second ground of equivalence is also not made out.
As far as the third issue in regard to decision of Public Service Commission to debar the candidature of the petitioners after having participated in the selection process upon discovery of the fact that they did not possess necessary qualification prescribed in the advertisement is concerned, no challenge can be put to such advertisement after having participated in the selection process as has been held in the cases S.Vinodh Kumar, K.H.Siraj and Vijendra Kumar Verma (supra) and therefore, this Court is of the opinion that no indulgence is required to be shown inasmuch as rules of the game could not have been changed once the game started and petitioners were not entitled to claim any equitable relief inasmuch as learned counsel for the respondent has rightly pointed out that many persons did not fill the application form because of correctly reading the advertisement prescribing particular qualification at graduation level and now great prejudice is going to be caused if such qualification is allowed to be changed subsequently. Thus, in the opinion of this Court since petitioners are not entitled to challenge the rule of the game after beginning of the game and after having participated in the game, these petitions deserve to be and are dismissed.
(Vivek Agarwal) Judge ms/-
Digitally signed by MADHU SOODAN PRASADDate: 2018.03.19 17:25:28 +05'30'