Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Mir And Others vs State Of J&K; And Others on 22 August, 2017
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 1381/2016
c/w
SWP No. 183/2017
Date of Decision:-22.08.2017
Mushtaq Ahmad Mir & ors.
vs.
State of J&K & Ors.
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge.
Whether to be reported in Media/Press : Yes / No
Whether to be reported in Journal/Digest : Yes / No
Appearing counsel:-
For the petitioner(s): Mr. G.A.Lone, Advocate.
For the respondent(s): Mr. Azhar ul Amin, Adv. with Ms. Sameera, Adv.
Mr. Irfan Andleeb, Dy.AG.
1. Vide notification No 12-PSC(DR-P) of 2014 dated 29.05.2014, applications were invited from the permanent residents of the Jammu & Kashmir State for the posts of Assistant Professors in various disciplines available in the Government Degree Colleges of the State which include the discipline of Political Science figuring at Item No.186 of the said notification with the following break-up:-
Item Name of Type OM RBA SC ST ALC SLC Total 3% No. the horizontal discipline for handicapped category 186 Political Fresh 49 17 07 09 03 01 86 03 Science Backlog - - 01 01 01 01 04 -
2. Amongst others petitioners also applied. In the short-list as issued they did not figure as a result whereof instant petition was filed.
3. Vide order dated 06.02.2017 passed by this Court, respondents were directed to permit the petitioners to participate in the selection process, however, result was not to be declared; with further direction that five posts of Assistant Professors in the discipline of Political Science shall not be filled up till further orders.
4. The criteria for short listing was prescribed as under:-
Weightage to the Weightage to the Weightage to the Total points basic qualification level-I higher level-II higher qualification qualification 90 points 04 points 06 points 100 points
5. Applying the said criteria the cut-off points for open merit was fixed as 54.06 points. Petitioners are shown to have secured the following points;
Petitioner no.1- 53.892,
Petitioner no.2- 53.604,
Petitioner no.3- 51.12,
Petitioner no.4- 53.55 and,
Petitioner no.5- 51.75.
6. The case as projected by the petitioners is that they have done M.Phil and Ph.D degrees, therefore, were entitled to 04 points for M.Phil., and 06 points for Ph.D; by adding the said 10 points they would be above the cut-off points i.e. 54.06.
7. The simple question is as to whether the petitioners are entitled to be awarded 10 points i.e. 04 points for M.Phil and 06 points for Ph.D, in this connection it shall be quite relevant to quote as to what is the qualification prescribed for the said post. Same has been reflected in the advertisement notice dated 29.05.2014:-
Designation Qualification
Assistant a) Good academic record as defined by the concerned University with
Professor at least 55% marks {50% excluding any grace marks, in case of
scheduled Caste/Scheduled tribe/Differently-abled [physically and visually differently abled] Categories/Ph.D. degree holders, who have obtained their Master's Degree prior to 19th September 1991.} or an equivalent grade in a point scale wherever grading system is followed at the Master's Degree level in the relevant subject from an Indian University, or an equivalent degree from an accredited foreign University.
b) The candidate must have cleared NET/SLET/SET conducted by the UGC, CSIR/AIU.
c) The candidate who are, or have been awarded a Ph.D degree in accordance with the University Grants Commission [Minimum Standards and procedure for Award of Ph.D degree regulations], 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET.
d) NET/SLET/SET shall also not be required for such Master's Programmes in disciplines for which NET/SLET/SET is not conducted.
8. The method applied for giving weightage to the candidates for short listing is as under:-
Qualification Total weightage out of 100 points Candidate Weightage given only to Master's Degree out of 90 as there is no marks possessing available in Ph.D degree. Master's Degree with Ph.D. Candidates Weightage given only to Master's degree. possessing Master's degree with NET/SLET Candidates Weightage given to Master's degree out of 90 and no four additional marks possessing awarded for M.Phil degree as highest qualification subsumed on the basis Master's degree of qualification/eligibility.
with M.Phil and
Ph.D.
Candidate Weightage given to Master's degree out of 90 and four additional marks
possessing for M.Phil degree.
Master's degree
with NET and
M.Phil.
Candidates Weightage given to Master's degree out of 90 and four additional marks
possessing
Master's degree for M.Phil degree and six additional marks awarded for Ph.D degree. with NET/SLET/M.Phil and Ph.D.
9. Clause (viii) of Rule 51 of 1980 Rules is advantageous to be quoted here-under:-
"The weightage on account of higher qualification shall be admissible for the highest degree possessed by the candidate and not for other higher qualification down the line. Where one of the higher qualifications possessed by the candidate gets consumed towards the requirement of eligibility (like M.Phil.Ph.D for NET/SLET) the candidate shall be entitled to weightage equivalent to the difference between the two viz. highest degree possessed and the degree considered against eligibility. If the highest degree possessed is itself consumed against the eligibility, no weightage shall flow to the candidate in that eventuality."
10.Counsel for the petitioners would submit that there is no question of consuming the higher degree i.e. Ph.D against eligibility i.e. clearance of NET/SLET/SET. Clearing NET/SLET/SET is not a qualification. A postgraduate who has cleared NET/SLET/SET becomes eligible, in absence whereof postgraduate is not eligible. A candidate who possesses Ph.D degree is exempted from the requirement of clearing NET/SLET/SET, therefore, degree of Ph.D cannot be consumed against the requirement of NET/SLET/SET. The exemption is exemption entitling a Ph.D degree holder to be eligible to compete for the post of Assistant Professor without having cleared NET/SLET/SET. According to learned counsel, basic qualification is post-graduation, the higher qualification entitles the petitioners to the award of additional 06 points.
11.In the reply filed by the respondent Commission, it has been made clear as to under what circumstances, 06 additional points for higher qualification could be awarded. Very simple, in case petitioners would have cleared the SET, in that eventuality they were entitled to additional 06 points for possessing Ph.D degree. Once they have not cleared SET, their higher degree of Ph.D in effect, has been consumed for eligibility. A postgraduate in absence of NET/SLET/SET is ineligible. For a postgraduate, clearing of said test has no substitute whereas for the candidate possessing Ph.D qualification, exemption as against NET/SLET/SET makes him eligible. If the submission of learned counsel for the petitioners is accepted that even though on the basis of Ph.D degree there is exemption, still for higher qualification 06 points are awardable, then it is equally true, why a postgraduate having also cleared NET/SLET/SET shall not be entitled to additional points.
12.The aforesaid position more or less has been settled by the Division Bench of the High Court of Madras in a case captioned "K. Sathyamurthi Vs. The State of Tamil Nadu and others"
decided on 24.03.2007, (2007) 4 MLJ 171. Learned counsel for the respondents while relying on the said judgment has rightly taken a plea that the petition is without merit.
13.In the reported judgment, various judgments of Hon'ble Supreme Court have been referred, wherein the Hon'ble Apex Court has held that the expert body like Public Service Commission in absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. That is what has been done by the respondent Commission in terms of Rule 40 of 1980 Rules. Same cannot be found fault with.
14.In Rule51 of 1980 Rules, it has been clearly envisaged that if the highest degree possessed is itself consumed against the eligibility, no weightage shall flow to the candidate in that eventuality. Therefore, in the light of the law laid down by the Hon'ble Apex court, as referred to above, no exception can be taken to the mode and method as adopted by the respondent Commission in terms of Rule 40 and 51 of 1980 Rules. The petitioners, with all calculations, have participated in the selection process, accepted the terms and conditions of the advertisement noticed, therefore, cannot be allowed to turn around to claim a benefit which is not available.
15.The further contention of learned counsel for the petitioners is that even if it is taken that the Ph.D degree is consumed against the requirement of NET/SLET/SET still for M.Phil degree they were entitled to 04 points. Even by adding only 04 points to what they have been awarded their merit could be above cut- off points i.e. above 54.06 points.
16.The contention again is to be rejected because Clause-viii of Rule 51 of 1980 Rules as quoted hereinabove clearly envisages that the weightage on account of higher qualification shall be admissible for the highest degree possessed by the candidate and not for higher qualification down the line. It also envisages that if the highest degree possessed is itself consumed against the eligibility, no weightage shall flow to the candidate in that eventuality.
17.Afore-stated position apart, petitioners pursuant to the direction of this Court have been admitted to selection process, learned counsel for the Commission now has produced the result of the petitioners in a sealed cover which reveals the total points secured by the petitioners, same are as under:-
"Petitioner No.1- 42.94 Petitioner No.2- 43.80 Petitioner No.3- Absent Petitioner No.4- 53.77 Petitioner No.5- 40.98"
18.The last selected candidate has got 55.56 points.
19.As already concluded that the petitioners are not entitled to any weightage for M.Phil., their higher degree Ph.D has been consumed against NET/SLET/SET as per Rule 51 no weightage for possessing such degree is permissible. Even if it be otherwise still except petitioner no.4 no-one makes the grade. When it is so petition only deserves dismissal, is accordingly dismissed.
20.The result as produced in a sealed cover is again kept in a sealed cover and is made part of the file.
SWP No. 183/2017
21.The case of the petitioner is similar to the petitioners of SWP No.1381/2016. Petitioner on the same analogy as referred to above has secured 49.72 points. In case weightage for M.Phil. and Ph.D degrees is granted by adding 04+06 points his total score would be 59.72 points.
22.As concluded in the above judgment when Ph.D degree is consumed as against NET/SLET/SET, no weightage is permissible then the argument of learned counsel for the petitioner that even if it is taken that higher degree has been consumed against NET/SLET/SET still the petitioner possesses M.Phil for which he is entitled to 04 points which though concluded is not permissible but still if it is accepted for the sake of arguments even then total score of the petitioner in terms of the criteria fixed for short listing would be 49.72 + 04 = 53.72 points, when the cut-off points is 54.06 points for short listing, therefore, petitioner in any case could not make the grade for being included in short listing.
23.Petitioner has been permitted to participate in the selection process pursuant to the direction of this Court dated 16.02.2017 but in effect he was not eligible, as concluded hereinabove, for being called for the interview as he has failed to make the grade.
24.On the analogy and the conclusions as drawn in the above SWP No.1381/2016 and even otherwise on the individual basis petitioner was not eligible for being called for the interview, therefore, this petition is also without any merit which for the reasons and facts as stated hereinabove warrants only dismissal, as such, dismissed.
( Mohammad Yaqoob Mir ) Judge Srinagar 22.08.2017 Muzammil. Q