Jammu & Kashmir High Court - Srinagar Bench
Mir Mudasir vs State Of Jammu And Kashmir Through ... on 12 December, 2023
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
SWP No. 1185/2012
CM No. 5153/2022
CM. No. 7604/2019
Reserved on: 07.12.2023
Pronounced on : 12 .12.2023
Mir Mudasir, Aged 37 Years ...Petitioner(s)
S/O Abdul Rahim Mir
R/O Ziarat Batamaloo, Near Government Girls High
School Batamaloo, Srinagar.
Through: Mr. Z.A.Qureshi, Sr. Advocate with Ms. Raziya Amin, Adv.
Vs.
1. State of Jammu and Kashmir through Principal
Secretary to Government, Planning and Development
Department Civil Secretariat Srinagar/Jammu.
2. Jammu and Kashmir Public Service Commission
through its Secretary, Srinagar/Jammu.
3. Director, Economics and Statistics, J&K,
Srinagar/Jammu.
4. Controller of Examination, University of Kashmir
Hazratbal Campus, Srinagar.
Through:
Mr. Sajad Ashraf, GA, for 1 and 3
Mr. Syed Faisal Qadiri, Sr. Adv, with Ms Tyba Gulnar,
Advocate, for 4
Ms. Insha Shakeel, Adv, vice Mr. Shah Aamir, Adv, for 2
CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
JUDG MENT
01. Briefly, stated the facts leading to the filing of instant petition,
are that the Jammu and Kashmir Public Service Commission ['the
Commission'] vide its Notification No. PSC/EXM-09/14 dated 26th
March, 2009, invited applications from the eligible candidates for
participating in Statistical-cum-Evaluation Service Competitive
(Preliminary) Examination, 2009, to be conducted to fill up 95 posts
of Assistant Director (Statistics). The petitioner possessing post-
graduation qualification in M.Sc. (Operations Research) from Aligarh
Muslim University also submitted his application form on the
prescribed format. The application form of the petitioner was accepted
by the Commission and he was allowed to participate in the Screening
Test which he qualified. The petitioner, accordingly, filed his
application form to sit in the main examination. The petitioner was,
however, not issued any admission slip for participation in the main
examination and, accordingly, he approached the office of the
Commission to find out the reason. The petitioner was intimated by the
Commission that the admission slip to him has not been issued on the
ground that the post graduate decree i.e., M.Sc. (Operations Research)
possessed by the petitioner has been found to be invalid.
02. Feeling constrained, the petitioner filed SWP No. 211/2011
before this Court and by way of an ad-interim Order passed in the said
writ petition, the petitioner was permitted to sit in the main
examination at his own risk and responsibility with further direction
that the result of the petitioner shall not be declared. While the
aforesaid writ petition was pending, the Commission made a statement
at the bar that the candidature of the petitioner had been rejected by the
respondents and that a copy of the rejection order would be made
available to the petitioner within two weeks.
03. Faced with the aforesaid position, the petitioner withdrew the said writ petition with liberty to challenge the rejection order. Accordingly, the rejection order passed by the commission vide its No. ________ 2 SWP No. 1185/2012 PSC/Exam/AD(Main)/2009 dated 4th February, 2011, came to be challenged by the petitioner in the instant petition.
04. Impugned order is assailed by the petitioner, primarily, on the ground that the qualification of M.Sc. (Operations Research) obtained by the petitioner from Aligarh Muslim University is equivalent to the qualification prescribed by the commission for participating in the examination in terms of Notification dated 26th March, 2009. It is submitted that one of the qualifications prescribed for the post of Assistant Director (Statistics) in the Advertisement Notification is "Master's in Economics or Statistics" , which qualification is same and equivalent to the Master's in Operations Research i.e., the qualification possessed by the petitioner. The petitioner places strong reliance on the information supplied by the Deputy Registrar Academic, University of Kashmir, Srinagar, to the Assistant Registrar, Legal Cell, wherein the Equivalence Committee of the University in its meeting held on 27th July, 2017, has resolved that the two degrees i.e., M.Sc. (Operations Research) awarded by the Aligarh Muslim University and M.Sc. (Statistics) of University of Kashmir are not equivalent but competing degrees and, therefore, a candidate possessing M.Sc. (Operations Research) is eligible to apply for the post, for which, the candidates possessing qualification like M.Sc. in Mathematics/Statistics and M.A. in Economics are considered eligible.
05. It is argued by Mr. Z.A.Qureshi, learned senior counsel appearing for the petitioner that in compliance to the Order dated 10 th June, 2014, passed by this Court while disposing of CM No. 3267/2012, the University of Kashmir constituted a committee of ________ 3 SWP No. 1185/2012 experts to determine the question of equivalence of the two qualifications. The committee went into the question and opined that a person holding M.Sc. (Operations Research) can be considered for the post, for which, other candidates possessing qualifications like M.Sc. in Mathematics/Statistics/M.A. in Economics are considered eligible. Wrapping up his arguments, Mr. Qureshi, learned senior counsel, submits that in the light of opinion given by the experts there should not be any doubt in the mind of any person that the qualification of M.Sc. (Operations Research) possessed by the petitioner is not only equivalent, but is identical to and same as the qualification of M.Sc. in Economics/Statistics. He, therefore, contends that the impugned order of rejection passed by the Commission is contrary to law and deserves to be quashed.
06. Per contra, Mr. Syed Faisal Qadiri, learned Senior counsel, appearing for the respondent no. 4, Ms. Insha Shakeel, Advocate vice Mr. Shah Aamir, for respondent no. 2 and Mr. Sajad Ashraf, learned GA, for respondents 1 and 3, submit that the candidature of the petitioner has been rejected on the sole ground that the petitioner does not possess the prescribed qualification. It is argued that neither the statutory rules governing the recruitment of Assistant Director (Statistics) nor the Advertisement Notification provides for equivalent qualification, as such, there was hardly any need for any expert body to go into equivalence of the two qualifications. It is submitted that the qualification prescribed for the post of Assistant Director (Statistics) is a fixed qualification and a candidate to be eligible must possess such qualification and no other qualification. Acceding to the request of the petitioner would be virtually tantamount to substituting the statutory ________ 4 SWP No. 1185/2012 recruitment rules by adding new qualification by the Court, which the rules do not provide for. Such exercise is not permissible in law. Both the sides have relied upon case law to substantiate their respective stand.
07. Having heard learned counsel for the parties and perused the material on record, It is seen that the recruitment to the post of Assistant Director (Statistics) is governed by Jammu and Kashmir Economic and Statistical (Gezetted) Service Recruitment Rules, 1992, ['the Rules of 1992] and the qualification prescribed for the post of Assistant Director (Statistics) as laid down in the Schedule-II of the Rules is as under:-
"Master's Degree in Economics and Statistic or Commerce or Mathematics or M.Sc. of Indian Statistical Institute of Master of Computer Applications degree from any recognized University/ Institute."
It is the same qualification, which is exactly reproduced in the Advertisement dated 26th March, 2009, and it is, thus, not in dispute that the qualification prescribed for the post of Assistant Director is statutory in nature and cannot be supplemented or supplanted by any executive action or order. It is also not in dispute that the qualification possessed by the petitioner i.e., M.Sc. (Operations Research) from Aligarh Muslim University is not one of the prescribed qualifications. The petitioner is, however, banking upon the opinion of experts like the University of Kashmir to put forth his submission that the qualification possessed by him is equivalent to the prescribed qualification. Whether in the absence of any stipulation in the statutory rules or the Advertisement Notification, the Courts can embark upon an exercise of finding out a particular qualification to be a qualification ________ 5 SWP No. 1185/2012 equivalent to the prescribed qualification, is a question, that should not detain this Court any longer. In the recent judgment rendered in the case of Sanjay Unnikrishanan CV and Ors. Vs. Union of India and Ors, reported in 2023 SCC Online SC 343, the Hon'ble Supreme Court was confronted with the same issue and in the operative portion of paragraph-5 of the Judgment it held thus: -
"It is trite law that courts would not prescribe the qualification and/or declare the equivalency of a course. Until and unless rule itself prescribes the equivalency, namely, different courses being treated alike, the courts would not supplement its views or substitute its views to that of expert bodies."
In the same Judgment, the Hon'ble Supreme Court, while relying upon the Judgment of Zahoor Ahmad Rather and Ors. Vs. Sheikh Imtiyaz Ahmad and Ors., reported in (2019) 2 SCC 404 held thus:-
"That the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various qualifications, etc. Judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is matter of the State, as recruiting authority, to determine."
08. In view of clear annunciation of law by the Hon'ble Supreme Court on the subject, it is now well settled that where a particular qualification is prescribed by statutory rules or is indicated in the Advertisement Notification, it would not be open to the Courts to deviate from such qualification and add to it the qualification which ________ 6 SWP No. 1185/2012 may be even equivalent or relevant for that would be tantamount to amending the recruitment rules or modifying the Advertisement Notification as the case may be.
09. Admittedly, in the instant case, the statutory rules supra and the Advertisement Notification called in question lays down a specific qualification without making any room any other relevant or equivalent qualification to seep in. That being the admitted position, it would not be permissible for this Court to accede to the argument of Mr. Z.A.Qureshi, that the qualification possessed by the petitioner, though not amongst the prescribed qualifications, should be treated as same or equivalent qualification. Accepting the contention of Mr. Qureshi would amount to re-writing the statutory rules which is not within the domain of this Court. The Judgment of the Hon'ble Supreme Court rendered in the case of Parvaiz Ahmad Parray vs. State of Jammu and Kashmir and Ors reported in (2015) 17 SCC 709 is not applicable in the given facts of the instant case. In the aforementioned case, the qualification prescribed for the post of Range Officer Grade-I (Forest) was B.Sc. Forestry or its equivalent from any University recognized by the Indian Council of Agricultural Research.
10. It is in this context, the Hon'ble Supreme Court held that the qualification of Master's in Forestry i.e., M.Sc. (Forestry) was a qualification equivalent to B.Sc. Forestry and held a candidate possessing such qualification eligible to apply for the post of Range Officer Grade-I (Forest). Similarly, the Judgment relied upon by Mr. Qureshi rendered by Division Bench of this Court in the case of ________ 7 SWP No. 1185/2012 Shahid Hameed vs. UT of Jammu and Kashmir and Ors in WP(C) 840/2022 decided on 4th February, 2023, also cannot of any help to the petitioner. In the aforesaid case, the prescribed qualification was Master's Degree in the relevant subject and, therefore, this Court embarked upon the exercise of finding out a qualification of post- graduation relevant for the selection that was in question in the aforesaid petition.
11. In view of the aforesaid discussion and clear legal position adumbrated by the Hon'ble Supreme Court, I find no illegality in the impugned order of rejection of candidature of the petitioner for his participation in the Jammu and Kashmir Statistical cum Evaluation Service Competitive Examination. The writ petition is without any merit and, therefore, deserves to be dismissed along with connected CM(s). Ordered, accordingly.
(SANJEEV KUMAR) JUDGE SRINAGAR 12 .12.2023 "Shamim Dar"
Whether the Judgment is speaking ? Yes/No Whether the Judgment is reportable? Yes/No ________ 8 SWP No. 1185/2012