Jammu & Kashmir High Court
Dr. Bilal Ahmad Khan vs State Of J&K; And Others on 27 July, 2017
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU & KASHMIR
AT SRINAGAR
SWP No.1939/2016
MP No.01/2016 & 01/2017
Date of decision:27-07-2017
Dr. Bilal Ahmad Khan
Vs.
State of J&K & ors.
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir
Appearing counsel:
For the Petitioner(s): Mr. G. A. Lone.
For the Respondent(s): None for R1.
Mr. Azhar-ul-Amin-for R2.
Mr. Syed Faisal Qadiri-for R3.
i) Whether to be reported
in Digest/Journal: YES
ii) Whether to be reported
in Press/Media: YES/NO/OPTIONAL
YES
1) Vide notification No.l2-PSC(DR-P) of 2014 dated
29.05.2014, applications were invited from the
permanent residents of Jammu & Kashmir State for the posts of Assistant Professor in various disciplines in Government Degree Colleges of the State, which include the discipline of Economics figuring at serial No.185 with the following break-up:
Item Name of Type OM RBA SC ST ALC SLC Total % Horizontal No. the for Discipline Handicapped Category 185 Economics Fresh 27 09 04 05 02 - 47 02 Backlog - 03 - - - - 03 -Page 1 of 11
2) Amongst others, petitioner and respondent No.3 also applied. In the shortlist, petitioner did not figure. Noticing the same position, he filed instant petition seeking quashment of the shortlist issued on 29.11.2016 with a further prayer that the respondents shall be asked to admit the petitioner to interview on the ground that he had not been awarded 6 points for possessing higher qualification i.e. Ph.D. and has also prayed for declaring Rule 40 and 51 of the Public Service Commission Rules as unconstitutional in so far it provides that no weightage shall be given to higher qualification if higher qualification gets consumed towards eligibility like Ph.D for NET/SLET.
3) Alongside petition, MP No.01/2016 was filed. Noticing the merit position i.e. in the open merit last candidate in shortlist was shown to have secured 58.46 points whereas petitioner was shown to have secured 57.1 point, in case his claim for 6 points is found genuine, then he would get 63.1 points, direction was issued to the respondent Commission to admit the petitioner to interview at his own risk and responsibility with a further rider that participation in the interview shall not confer Page 2 of 11 any special right. Accordingly, Petitioner has been admitted to interview
4) Vide order dated 21st April, 2017, it was directed that one post of Assistant Professor in the discipline of Economics shall not be filled up.
5) The respondent No.3 being the last candidate in the OM category was not appointed in view of aforesaid direction. It is only thereafter he has filed application for impleadment and stand impleaded as party/respondent.
6) The precise controversy is as to whether petitioner for possessing higher qualification of Ph.D, is entitled to 6 points.
7) As per notification No.12-PSC(DR-P) of 2014 dated 29.05.2014, the qualification prescribed is as under:
Item Designation Qualification No. 156 to Assistant a) Good academic record as defined by the 198 Professor concerned university with 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 19 th 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.
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b) The candidate must have clear 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 minimum eligibility condition of NET/SLET/SET.
d) NET/SLET/SET shall also not be required for such Master's Programme in disciplines for which NET/SLET/SET is not conducted.
8) The procedure adopted by the respondent Commission in terms of Rule 40 of the Jammu and Kashmir Public Service Commission (Business and Procedure) Rules, 1980 (for short 1980 Rules) for purposes of shortlisting of the candidates giving weightage to the academic qualifications thereof, as stated in the reply of the respondent Commission, is as under:
i) Weightage given to the basic qualification out of - 90 points
ii) Weightage given to first higher qualification - 04 points
iii) Weightage given to second higher qualification - 06 points Total 100 points
9) The method as was applied for giving weightage to the candidates for shortlisting, as also referred to in the reply, for facility of reference, is reproduced here-under:
Qualification Total Weightage out of 100 points Page 4 of 11 Candidate possessing Weightage given only to Master's degree out Master's Degree with of 90 as there is no marks available in Ph. D Ph. D Degree.
Candidates possessing Weightage given only to Master's Degree. Master's Degree with NET/SLET Candidates possessing Weightage given to Master's Degree out of 90 Master's Degree with and no four additional marks awarded for M. M.Phil and Ph.D Phil Degree as highest qualification subsumed on the basis of qualification/eligibility. Candidate possessing Weightage given to Master's Degree out of 90 Master's Degree with and four additional marks for M. Phil Degree. NET and M. Phil.
Candidates possessing Weightage given to Master's Degree out of 90 Master's Degree with and four additional marks for M. Phil Degree NET/SLET/M. Phil and and six additional marks awarded for Ph. D Ph. D. Degree.
10) 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."
11) Counsel for the petitioner 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. Page 5 of 11 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 petitioner to the award of additional 6 points.
12) The argument of learned counsel for the petitioner, at the first blush, appeared to be very attractive but, on scrutiny, was found to be without any merit. Petitioner from the very beginning has been conscious of the fact that he will not get 06 additional points for possessing Ph.D degree. He, in fact, had also appeared in the Eligibility Test (SET) in the year 2013 but had not cleared the same, therefore, filed writ petition(SWP) No.1541/2016 praying therein that he shall be given the benefit of 6 points for SET 2013 which he has qualified Page 6 of 11 but the result has not been finalized due to change of official answer keys from time to time. Said petition was held to be premature and dismissed in limini.
13) In the reply filed by respondent Commission, it has been made clear as to under what circumstances, 6 additional points for higher qualification could be awarded. Very simple, in case petitioner would have cleared the SET, in that eventuality he was entitled to additional 6 points for possessing Ph. D degree. Once he has not cleared SET, his higher degree of Ph. D, in effect, has been consumed for eligibility. A post-graduate in absence of NET/SLET/SET is ineligible. For a post- graduate, 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 petitioner is accepted that even though on the basis of Ph.D degree there is exemption, still for higher qualification 6 points are awardable, then it is equally true, why a post-graduate having also cleared NET/SLET/SET shall not be entitled to additional points. Page 7 of 11
14) 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 respondent No.3 while relying in the said judgment has rightly taken a plea that the petition is without merit.
15) In the reported judgment, various judgments of Hon'ble Supreme Court have been referred. Paras 27, 28 and 29 of the said judgment are relevant to be quoted:
"27. One other relevant factor to be considered is that even as per the amended regulations of U.G.C dated 14.6.2006, a P. G. qualified person with NET or SLET is entitled to compete along with a Ph.D. degree holder or a M.Phil degree holder with SLET or net. In other words, all the above three categories with the above qualifications are treated on par while going in for the selection for the post of Lecturers. If that be so, if a Ph.D. or for that matter a Ph.D. with NET along with M.Phil with NET or SLET can be awarded some weightage marks for possessing such qualifications, there is no reason why a P.G. qualified person possessing NET or SLET shall be excluded without any special reason.
28. In order words, when as per the U.G.C. Regulations all the above three categories are basically eligible for being considered for the post of Lecturers, a different treatment cannot be meted out to a P.G. qualified person alone even when possesses NET or SLET in the matter of award of weightage marks.
29. At this juncture it will be appropriate to refer to the decision of the Hon'ble Supreme Court rendered in State of UP. And Anr. V. Om Prakash and Ors. MANU/SC/3132/2006: AIR2006SC3080. The Hon'ble Supreme Court has referred to an earlier decision of the Supreme Court reported in MANU/SC/1248/1996: (1996) ILLJ110SC (Secy. (Health) Deptt. Of Health and F.W. and Anr. V. Dr. Anita Puri where in it has been held as under in para 17.
17. In Secy.(Health), Deptt. of Health & F. W. v. Dr. Anita Puri, this Court held that preferential qualification does not as of Page 8 of 11 right entitle to selection. In that case the advertisement inviting applications for the posts of Dental Officer prescribed BDS as the minimum qualification but stipulated preference for higher dental qualification. This Court held at SCC pp. 285-86 para 7 as under:
7. Admittedly, in the advertisement which was published calling for applications from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is BDS. It was also stipulated that preference should be given for higher qualification. there is also no dispute that MDS is a higher qualification than the minimum qualification required for the post and respondent 1 was having that degree. The question then arises is whether a person holding MDS qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Public Service commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate.
The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extra-curricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post of which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a MDS qualified person like Respondent 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualifi8cation person would get some preference. The said conclusion of Page 9 of 11 the High Court, therefore, is wholly unsustainable and must be reversed Ultimately in para 19, the Hon'ble Supreme Court laid down the ratio in the following terms:
19. In the instant case, the requisite academic qualification for the post of Medical Officer of Homeopathy as prescribed in the advertisement was a recognized degree in homeopathy or a recognized diploma in homeopathy. A proviso has been added that preference will be given to degree-holders. This would mean that a recognized diploma in homeopathy prescribed in the advertisement is also a required minimum educational qualification with which they are entitled to compete with those candidates possessing the degree. The word "preference" would mean that when the claims of all candidates who are eligible and who possess the requisite educational qualification prescribed in the advertisement are taken for consideration and when one or more of them are found equally positioned, then only the additional qualification may be taken as a titling factor, in favour of candidates vis-à-vis others in the merit list prepared by the Commission. But preference does not mean en bloc preference irrespective of inter se merit and suitability.
A reading of the above decisions of the Hon'ble Supreme Court thus disclose that award of weightage marks for better qualification is not a new phenomena. Similarly, in the case on hand, when the State has decided to award weightage marks for holders of Ph.D qualification and M. Phil candidates with SLET or NET in order to go in for selection of better qualified persons and when holders of P.G. Degree with SLET or NET are treated on par with the holders of Ph.D or P. Phil with SLET or NET, in the same line of reasoning there should be grant of weightage marks for P. G. holders with SLET or NET."
16) The Hon'ble Apex Court, as referred and quoted above, 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.
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17) In Rule 51 of 1980 Rules, it has been clear 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 petitioner, with all calculations, has participated in the selection process, accepted terms and conditions of the advertisement notice, therefore, cannot be allowed to turn around to claim a benefit which is not available.
18) For the stated reasons and circumstances, petition being devoid of merit is dismissed along with connected MPs.
(Mohammad Yaqoob Mir) Judge Srinagar 27.07.2017, "Bhat Altaf"
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