Jammu & Kashmir High Court - Srinagar Bench
Samiya Jamsheed And Another vs Union Territory Of J&K And Others on 7 April, 2023
Author: Puneet Gupta
Bench: Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
WP(C) no.2665/2021
CM no.2060/2022
c/w WP(C) no.2653/2021
CM no.2196/2022
Reserved on: 05.04.2023
Pronounced on: 07.04.2023
Samiya Jamsheed and another
..........Petitioner(s)
Through: Mr R.A.Jan, Senior Advocate with
Mr Taha Khalil, Advocate
Versus
Union Territory of J&K and others
.........Respondent(s)
Through: Mr Shah Aamir, Advocate with
Ms Insha Shakeel, Advocate
CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR JUDGE
HON'BLE MR JUSTICE PUNEET GUPTA, JUDGE
JUDGEMENT
1. Pursuant to an indent/request received from the Department of Higher Education, Government of UT of J&K, the J&K Public Service Commission ("PSC") vide its Notification no.12-PSC (DR-P) of 2014 dated 29th May 2014, invited applications, inter alia, for making selection to 71 posts of Assistant Professor (Botany); out of which 38 posts were earmarked for General Category and one post for SLC. As per the notification, the eligibility prescribed was as under:
a) Good academic record as defined by the concerned University with at least with 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 1999} or an equivalent grade in a point scale where grading system is followed at the Master's Degree level in the relevant subject Page 1 WP(C) no.2665/2021 c/w WP(C) no.2653/2021 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 Commissioner (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.
2. The petitioners claim that apart from possessing the qualification of M.Sc. in the subject of Botany, they had to their credit the Degree of Ph.D. Botany and teaching experience. Being possessed of requisite qualification and eligibility, the petitioners applied for the post. The petitioner in WP(C) no.2665/2021 applied under Open Merit Category and only petitioner in WP(C) no.2653/2021 applied under SLC Category. Since the petitioners were possessing the qualification of M.Sc. in Environmental Botany, as such, their candidature was rejected by PSC vide its notice dated 5th July 2016.
3. Feeling aggrieved, the petitioners filed SWP no.1817/2016 and SWP no.304/2018, which came up for consideration before learned Single Judge of this Court on 21st February 2018 and 7th June 2018 respectively. The Single Bench of this Court directed, by way of an interim arrangement, that two posts of Professors Botany in the Higher Education Department shall not be filled up. However, after promulgation of the Reorganization Act, 2019 and establishment of Central Administrative Tribunal, Jammu Bench ("the Tribunal") the writ petitions were transferred to the Tribunal, where these were registered as TA no.62/6597/2021 and TA no.62/6596/2021. The writ petitions/TAs were contested by respondents, who in their counter affidavit took a specific stand that the qualification prescribed for the Page 2 WP(C) no.2665/2021 c/w WP(C) no.2653/2021 post is Master's Degree level in the relevant subject from an Indian University or an equivalent degree from a accredited foreign university and, therefore, the petitioners possessing the qualification of M.Sc. in Environmental Botany are not eligible. The matter was considered by the Tribunal and the Tribunal, after relying upon the case law on the subject, came to the conclusion that in view of settled legal position it is for employer to prescribe a set of qualifications for selection and appointment to a particular post and, therefore, a candidate, not possessing the said essential qualification, is not eligible to apply and seek consideration. The Tribunal has, thus, dismissed the TA vide its order dated 7th November 2021, impugned in this writ petition.
4. Having heard learned counsel for parties and perused the material on record, we find that the impugned notice dated 5 th July 2016 issued by PSC rejecting the candidature of petitioners for the post of Assistant Professor Botany in the Higher Education Department, which was subject matter of challenge before the Tribunal, is not sustainable in law.
5. The petitioners, who admittedly possess the qualification of Post Graduate Degree in Environmental Botany have been erroneously and arbitrarily declared ineligible by PSC for being appointed as Assistant Professor in Botany in the Higher Education Department.
6. It is true that it is prerogative of the employer to prescribe the essential qualification and conditions of eligibility for appointment to a post borne on its establishment and the Courts are not the authority competent to add to or subtract from the qualification so prescribed. It is equally indisputable that the selection body, which is enjoined to Page 3 WP(C) no.2665/2021 c/w WP(C) no.2653/2021 make the selection of eligible candidates, is bound to make recruitment of the candidates strictly in terms of the qualification and conditions of eligibility prescribed by the employer to participate in the selection process.
7. In the instant case, the qualification prescribed for the post in question is, amongst others, "Master's Degree level in the relevant subject from an Indian University or an equivalent Degree from an accredited foreign University". A candidate, to be eligible for the post of Assistant Professor, must possess, inter alia, Post Graduation in the relevant subject. The Degree equivalent to Post Graduation in relevant subject from an Indian University, is provided only in respect of a Degree of the same level obtained by a candidate from an accredited foreign University. We, in this case, are not confronted with a Degree obtained by a candidate from an accredited foreign University which is claimed to be equivalent to Master's Degree in the relevant subject. The claim of the petitioners is that M.Sc. in 'Environmental Botany' is equivalent and same as "Master's Degree in Botany" and, therefore, it cannot be said that the petitioners do not possess Master's Degree in the relevant subject from an Indian University.
8. The strong reliance is placed by Mr Jan, learned senior counsel appearing for petitioners, on the two communications. One made by Under Secretary to Government, Higher Education Department dated 8th July 2016, addressed to the Registrar, University of Kashmir, Hazratbal, Srinagar and the other issued by Assistant Registrar, Academic, University of Kashmir, Srinagar, dated 6th September 2016 in response to the communication of the Department of Higher Education. From communication of Under Secretary to Government, Page 4 WP(C) no.2665/2021 c/w WP(C) no.2653/2021 Higher Education Department dated 8th July 2016, it transpires that while selection process was underway, some doubts were expressed about eligibility of candidates possessing Master's Degree in Environmental Botany for the posts of Assistant Professors in Botany. The matter was taken up with the Registrar, University of Kashmir, who vide its communication dated 6th September 2016 informed the Higher Education Department (the employer herein) that M. Sc. Environmental Botany is relevant for appointment of Assistant Professors in the subject of Botany. In light of the aforesaid clarification issued by the University, which is an Apex Expert Body dealing with the academic affairs, the matter should have rest there only and PSC should have considered the candidature of petitioners treating them as the candidates possessing prescribed qualification.
9. It is true and we have no quarrel with the proposition that it is not for the Courts to read into or assume and thereby include certain qualifications which are not included in the notification by the employer. Even the relevance or equivalence of the qualification prescribed for the post does not fall within the domain of judicial review and the matter should be best left to the experts in the field. This is what has been held by the Supreme Court in its judgment rendered in the cases of Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad (2019) 2 SCC 404, and Zonal Manager, Bank of India, Zonal Office Kochi v. Aarya K. Babu (2019) 8 SCC 587. These two judgements have been strongly relied upon by the Tribunal to conclude that decision of PSC to reject candidature of petitioners, did not call for interference.
Page 5 WP(C) no.2665/2021 c/w WP(C) no.2653/2021
10.As noticed above, in the instant case, the doubts were raised by PSC with regard to eligibility of the petitioners. The matter was taken up with the expert body dealing with the academic affairs, i.e., University of Kashmir and after the issue was set at rest vide its communication dated 6th September 2016, the Department of Higher Education, employer, should have, accordingly, requested PSC to treat the petitioners eligible and consider them in the selection process. This, however, has not happened in the present case.
11.At this juncture, we would like to make a reference to the communication of the University Grants Commission ['UGC'] bearing No. F-17-6/2013(PS/Misc) issued in September, 2015, whereby the UGC issued a clarification in response to the query in the following manner:
Query Reply
What does relevant subject The relevance of subject or inter
mean by provision in para 4.4.0? disciplinary nature of subject is
when recruiting a candidate for required to be decided by the
'commerce subject' does a concerned University/appointing
candidate having done MBA authority with the help of subject
(Management) subject become experts in the concerned/related
relevant subject for commerce? field as per the requirement.
12.From the clarification issued by the UGC, it becomes abundantly clear that the relevance or equivalence of a subject is required to be determined by the concerned University/Appointing Authority with the help of subject experts.
13.This Court has already considered almost identical issue in the case of Rasikh Barkat v. UT of J&K and others, WP(C) no.2655/2021, decided on 4th February 2023. This Court, relying upon judgement of the Supreme Court rendered in the cases of Devender Bhasker and Page 6 WP(C) no.2665/2021 c/w WP(C) no.2653/2021 others v. State of Haryana, 2021 SCC Online SC 1116, and Zonal Manager, Bank of India (supra) has held that qualification of M.Sc. in Applied Geology in the light of opinion of the expert bodies, i.e., University of Jammu and University of Kashmir, is a qualification in the relevant subject, i.e., subject of Geology for appointment as Assistant Professor Geology. The "equivalent qualification" as explained in the judgement is perforce "relevant qualification".
14.This Court has also held that selection body, like PSC, cannot sit over the opinion of the appointing authority based on the expert advice given in respect of relevance of prescribed qualification.
15.We are aware that opinion of the appointing authority based on the recommendations of subject experts in respect of equivalence and relevance of the qualification prescribed for a post is not always a thumb rule binding on the Courts or is to be accepted as correct all the circumstances. There may be cases where even opinion of the experts is, on the face of it, absurd or even actuated by bias or mala fide considerations. In such situation, nothing prevents a Constitutional Court to examine such opinion in exercise of its powers of judicial review.
16.Learned counsel for the PSC or, for that matter, learned counsel representing the Department of Higher Education could not bring it to our notice that any power or competence conferred upon the PSC to sit over such decision of the appointing authority in respect of prescribed qualification particularly when such opinion of the appointing authority is based upon the recommendations of the experts' domain. We have no doubt in our mind that it is neither for Page 7 WP(C) no.2665/2021 c/w WP(C) no.2653/2021 the selection body nor for the Courts to enter into the arena of finding out the equivalence or relevance of the qualification prescribed for the post. We make it clear that the need to seek the expert opinion and the point of view of the appointing authority in respect of qualification may arise only when there is some confusion or ambiguity in the prescribed qualification. Had the statutory Recruitment Rules and the Advisement notification notified the qualification for the post of Assistant Professor in Botany as M.Sc. Botany, perhaps it was not permissible for the appointing authority or, for this court, to look for any equivalent or relevant qualification. However, in the instant case, the Advertisement Notification has not prescribed the qualification of M.Sc. Botany or M.Sc. in Applied Geology, but instead, it stipulated a Post Graduate Degree level in the relevant subject. It was in the aforesaid context that there was some confusion with regard to the eligibility of petitioners. The matter was rightly taken up with University of Kashmir for its expert opinion, but the expert opinion tendered University of Kashmir was not honoured and the petitioners were arbitrarily and without any justification declared ineligible. The Tribunal has completely strayed from point in issue and dismissed the plea of the petitioners on the ground that they did not possess the prescribed qualification in the advertisement notification, i.e., the Post Graduation in the relevant subject is Post Graduation in Botany only.
17.We, for the reasons given above, are not in a position to accept the view taken by the CAT.
18.For the foregoing reasons, writ petitions are allowed. The judgment impugned dated 7th December 2021 passed by the Tribunal is set Page 8 WP(C) no.2665/2021 c/w WP(C) no.2653/2021 aside. The impugned notice issued by the PSC declaring the petitioners ineligible, is also set aside. Since this Court has already reserved three posts of Assistant Professors (Botany) and the PSC while finalizing the selection has also kept four posts in Open Merit Category reserved, as such, we direct the PSC to consider the candidature of petitioners and if they are found to have obtained the merit, which is higher than the last cutoff and otherwise fall in the selection zone, their candidature be recommended to the Government for appointment as Assistant Professor in Botany. Let PSC complete its exercise without four weeks and recommend the names of petitioners for appointment as Assistant Professors, Botany.
19.Needless to say that on receipt of recommendation from PSC in favour of petitioners, the Department of Higher Education shall issue formal orders of appointment of the petitioners against the posts already reserved by this Court subject to fulfilment of all requisite formalities required for regular appointment in government service. One of the petitioners, i.e., petitioner in WP(C) no.2653/2021 is a candidate belonging to SLC Category and has reportedly secured merit higher than cutoff in the Open Merit Category, as such, the petitioner would be considered against one of the four posts reserved in General Category.
20.Disposed of.
(Puneet Gupta) (Sanjeev Kumar)
Judge Judge
Srinagar
07.04.2023
Ajaz Ahmad, PS
Whether approved for reporting? Yes
Page 9
WP(C) no.2665/2021
c/w WP(C) no.2653/2021