Gujarat High Court
Patel Umeshkumar Shantilal vs State Of Gujarat & 2 on 13 October, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/15876/2013 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15876 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ?
NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India NO or any order made thereunder ?
========================================================== PATEL UMESHKUMAR SHANTILAL....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) ========================================================== Appearance:
MR ANKIT B PANDYA, ADVOCATE for the Petitioner(s) No. 1 MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1 MR SWAPNESHWAR GAUTAM. AGP for the Respondent(s) No. 1 - 2 RULE SERVED for the Respondent(s) No. 1 - 3 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 13/10/2015 CAV ORDER 1 By writ application under article 226 of the Constitution of India, Page 1 of 27 HC-NIC Page 1 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER the petitioner desirous of seeking an appointment as the Shikshan Sahayak in any nongovernment granted higher secondary school has prayed for the following reliefs:
"10 The petitioner therefore prays that Your Lordships be pleased to issue a writ of or in the nature of mandamus and/or any other appropriate writ, order or direction:
(a) to admit this petition and to issue Notice for final disposal on returnable date and to allow the same;
(b) to direct the respondents, their agents and servants to consider the petitioner's qualification of M. Phil. for the purpose of calculation of merit at part with the qualification of M. Ed. and M.P. Ed. and to give appointment to the petitioner on the post of Shkshan Sahayak pursuant to the advertisement dtd. 2982013 as per AnnexureB with all the consequential benefits;
(c) to direct the respondents, their agents and servants to consider the qualification of M. Phi. for the purpose of calculation of merit, at part with the qualification of M. Ed. And M.P. Ed. in the matter of selection and appointments of Shikshan Sahayaks pursuant to the advetisement dtd. 2982013 as per AnnexureB, in accordance with the criteria laid down in the Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011 as per the Notification dated 11th February, 2011 at AnnexureD;
(d) to quash and set aside the impugned action of the respondents in not considering the qualification of M. Phil. for the purpose of calculation of merit for the post of Shikshan Sahayak pursuant to the advertisement dtd.
2982013 as per AnnexureB;
(e) Pending the hearing and final disposal of this petition, be pleased to restrain the respondents from preparing and publishing any meritlist for the post of Shikshan Sahayaks and from taking any action in furtherance of the advertisement dtd. 2982013 as per AnnexureB without considering the qualification of M. Phil. for the purpose of calculation of merit at par with the qualifications of M. Ed. and M.P.Ed.;
(f) Pending the hearing and final disposal of this petition, be pleased to direct the respondents to consider the qualification of M. Phil. for calculation of merit at par with the qualifications of M. Ed. and M.P.Ed. for the purpose of Shikshan Sahayak pursuant to the advertisement dtd. 2982013 as per AnnexureB and to prepare and publish the meritlist and give appointments on that basis, subject to further orders that may be Page 2 of 27 HC-NIC Page 2 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER passed in the present petition;
(g) Pending the hearing and final disposal of this petition, be pleased to direct the respondents to maintain statusquo in the matter of selection and appointments on the posts of Shikshan Sahayak pursuant to the advertisement dtd.2982013 as per AnnexureB;
(h) to hear and decide this petition as a public interest litigation in the interest of justice;
(i) to grant any other appropriate and just relief/s including the costs of this petition;"
2 The case of the petitioner may be summarized as under:
2.1 The petitioner secured the degrees in B.A., M.A., B.Ed., B.P.Ed.
and M.Phil. from the Sardar Patel University and Hemchandracharya North Gujarat University with Sociology as the principal subject. The petitioner belongs to the open category. It is his case that he is eligible and qualified to be selected and appointed as a Secondary Teacher and also as the Higher Secondary Teacher. The petitioner has also passed the examination of Certificate in Computing (C.I.C.). 2.2 The respondents herein issued an advertisement dated 29.08.2013 inviting the applications for 1865 post of the Shikshan Sahayaks / Teachers for the nongovernment granted higher secondary school. The applications were to be submitted between 29.08.2013 and 10.09.2013. The petitioner accordingly submitted his online application along with the requisite fees.
2.3 The State Government issued a Notification dated 11.02.2011
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framing the rules of selection, namely, "The Teachers and Headmasters of Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011".
2.4 The merit of the candidates is to be calculated according to Rule 11 of the said Rules and Appendix II. It is his case that accordingly, his merit would be as under:
Sr. Prescribed Maximum Percentage Marks eligible Petitioner's No. Qualification marks secured by on the basis of qualification petitioner percentage secured by the petitioner (col.3xcol.4/100 Graduation Degree in 10 64.18 6.42 B.A. concerned subject 2 Post Graduation 10 60.25 6.03 M.A. Degree in concerned subject 3 Graduate Degree in '05 '80.00 '4.000 B.Ed.
Professional subject i.e. B.Ed./ B.P.Ed., etc 4 Post Graduate Degree '05 65.75 3.29 M.Phil.
in Professional subject
i.e. M.Ed./ M.P.Ed.,
etc
Total 30 19.73
TAT 70 54.4 '38.080
Grand Total 100 '57.810
2.5 It is the case of the petitioner that he was constrained to file this
writ application because he learnt that the respondents had declined to consider the qualification of M. Phil. for the purpose of calculation of merit because according to them M. Phil. has not been specifically referred to in the said Rules.
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2.6 It is his case that if the respondents are allowed to prepare the
meritlist and finalize the appointments without considering the qualification of M.Phil. for the purpose of calculation of merit, the same would cause serious prejudice to him. In such circumstances, he prays that the qualification of M. Phil. is required to be considered for the purpose of calculation of merit at par with the qualifications of M. Ed. and M. P. Ed., for which, five marks are provided out of thirty. 3 Mr. K.B. Pujara, the learned counsel appearing for the petitioner submitted that so far as the qualification is concerned, referred to above, in the table at Appendix II at Serial No.4, it is stated "Postgraduate degree in professional subject i.e. M.Ed. / M.P.Ed., etc." According to Mr. Pujara, the word "etc" would indicate that the list is merely illustrative and not exhaustive. The word "etc", according to Mr. Pujara, should be construed as "all the rest". He submitted that having regard to the context and object underlying the Clause, the postgraduate degree of M.Phil. and Ph.D. should also be considered for the purpose of calculation of merit. According to him, the M. Phil. is also a postgraduate degree in the professional subject as the Master Degree is a prerequisite for admission to the M.Phil. course. Mr. Pujara pointed out that prior to the issue of the Notification dated 11.02.2011, the recruitment of Head Teachers and Teachers was governed by the formula prescribed by the Page 5 of 27 HC-NIC Page 5 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER Board as contained in Annexure: 'F'. He pointed out that in the said formula, the M.Phil and Ph.D. were specifically referred to along with the M.Ed. and M.P.Ed. However, in the Notification dated 11.02.2011 in the table at Appendix II at Serial No.4 it is stated as "Postgraduate Degree" in the professional subject i.e. "M.Ed. / M.P.Ed., etc". 4 According to Mr. Pujara, the above would indicate that the qualification of the M.Phil. and Ph.D. should be considered for the purpose of merit at par with the qualifications of the M. Ed. and M.P.Ed. 5 Mr. Pujara submitted that had the petitioner and other candidates been told earlier that the M. Phil. would not be taken into consideration for the purpose of calculation of merit at par with the M.Ed. and M.P.Ed., then they would have pursued the course of M.Ed. or M.P.Ed. In such circumstances, referred to above, according to Mr. Pujara, the action of the respondents deserves to be quashed as it is a question of life and career of a young man seeking an employment in a country like India.
6 On the other hand, this writ application has been vehemently opposed by Mr. Swapneshwar Gautam, the learned Assistant Government Pleader appearing for the State Respondent. He submitted that the requirement is of a "professional degree", and the degree of M.Phil. would not fall within the ambit of the "professional degree". Mr. Page 6 of 27 HC-NIC Page 6 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER Gautam has placed reliance on the averments made in the affidavitin reply filed on behalf of the Member Secretary, Selection Committee i.e. the respondent No.2.
"5. It is respectfully submitted that by way of present petition, the petitioner has prayed for directing the respondents to consider the petitioner's qualification of M. Phil. for the purpose of calculation of merit at par with the qualification of M. Ed. and M.P. Ed. and to appointment the petitioner on the post of Shikshan Sahayak pusuant to the advertisement dated 29.08.2013.
6. It is respectfully submitted that the candidate can avail of Graduation Degree like B. Com. And B.A. After the said Degree the candidate can either go for Post Graduation for M. Com. or M.A. or the candidate may purpose Bachelors in Education after B. Com or B.A. And the degree of Masters of Philosophy (M. Phil) can also be done after M.A.
7. It is respectfully submitted that a post graduate degree in professional subject i.e. M. Phil. is degree which is done after M. Ed. or M.P. Ed. In the present case the petitioner is holding a Degree of M. Phil as is found on page No.13. The degree is secured and the principal subject is sociology. The petitioner had cleared M.A. (Final) in the examination held in April, 2007. After that the petitioner has pursued B. Ed. and completed the same in June, 2008. The petitioner thereafter, pursued M. Phil in April, 2009. Therefore, the petitioner cannot be it said to be holding a Post Graduate Degree in a professional subject i.e. M.Ed. M.P. Ed.
8. It is respectfully submitted that pursuant to the petition filed by the petitioner, the Gujarat Higher Secondary and Higher Secondary Board sought guidance from Hemchandra Uttar Gujarat University, Patan and the said university has clearly provided that if the M.Phil Degree is obtained after M.Ed or M.P. Ed. only than it can be treated as a Post Graduate Degree in Professional Subject. Based upon the said letter necessary instructions were also forwarded to the commissioner of school by a letter dated 07.07.2014. A letter 04.07.2014 is annexed here with and marked as AnnexureR1 and letter dated 07.07.2014 is annexed here with and marked as AnnexureR2.
9. It is respectfully submitted that as far as the case the petitioner is concerned and the petitioner is holding an M. Phil Degree in the subject of sociology. The Post Graduate Degree in Professional Subject could have been M. Phil in Education after petitioner completes M.Ed. or M.P. Ed. Therefore the case of the petitioner and the prayer for directing respondents to consider the petitioners qualification of M. Phil for the purpose of calculation of merit at par with the qualification of M. Ed and Page 7 of 27 HC-NIC Page 7 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER M.P. Ed is misconceived.
10. I say and submit that in view of the facts and circumstances, of the case as stated hereinbefore, the petitioner is not entitled to any relief or reliefs as prayed for in the petition and therefore the petition deserves to be dismissed."
7 Mr. Gautam has also placed reliance on the additional affidavitin reply filed on behalf of the respondent No.2, which reads thus:
"5. It is respectfully submitted that pursuant to the contention of the petitioner that the degree of M. Phil is included in the word 'ETC', the present affidavit is filed. It is respectfully submitted that as such the affidavit to the contention of the petitioner that M.Phil if is degree after M.Ed or M.P.Ed can be considered as a post graduate degree in professional course is already filed by the appropriate respondent.
6. It is respectfully submitted that as far as the word 'ETC' is concerned, it includes degrees like M. Phil and P.hd provided that they are the degrees in professional subjects. The degree of M. Phil if it is only in the subject of education after M. Ed (Master of Education) can be considered to be post graduate degree in professional subjects. In the present petition the petitioner has degree of M. Phil in the particular subject which would only be an academic degree and not professional degree in the respectful submission of the deponent. A communication dated 16.07.2014 to this effect addressed by Education Department is annexed as Annexure RI for the kind perusal of this Hon'ble Court.
7. The present affidavit is filed only with the view to clarify the contention of the petitioner as directed by this Hon'ble Court reserving the right to file the further affidavit in case of necessity. In view of the aforesaid it is humbly said that none of the prayer prayed for by the petitioner to grant and the petition dismissed."
8 On 17.06.2015, this Court passed the following order:
1. In the course of hearing of this matter, few issues have cropped up. With a view to adjudicate the issues effectively, some information is necessary.
2. Mr. Goutam, the learned AGP shall file a reply explaining four things:
(i) The decision making process on the basis of which, the Government has come to the conclusion that the degree of M.Phill would not fall within the ambit of professional degree. The State shall explain what is a Professional Degree and what is an Academic Degree. (ii) Mr. Goutam relies on a letter of the Section Officer, Education Department, dated 16.07.2014 addressed to the Commissioner, Schools, Gandhinagar, AnnexureR1 as well as Page 8 of 27 HC-NIC Page 8 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER AnnexureR2 to this petition. The affidavit shall be disclose the name of the authority, who took such decision and the basis for it. (iii) The marks obtained by the last candidate of the General category and if 3.287 marks of the M.Phill are added to the marks of the petitioner herein, whether he would find place amongst 01 to 62 candidates of the General category or not. (iv) Whether 1865 posts have been actually filled up or not.
Let the matter appear on 29.06.2015 on top of the Board." 9 Pursuant to the above referred order, a further affidavitinreply was filed on behalf of the respondents, inter alia, stating as under:
"3. I respectfully say and submit that on the basis of informatino sought from various organizations, as far as Teacher Education is concerned, degrees like P.T.C., D.Ed., B.Ed., M.Ed., B.P.Ed., M.P.Ed., are considered as Professional Degrees where in the major emphasis is on the development of "Pedagogic Skills". These types of courses are governed and monitored by professional organizations such as National Council for Teacher, (NCTE), Bar Council of India (BCI), All India Council of Technical Education (AICTE), etc. It is further submitted that degrees like B.Sc., M.Sc., B.A., M.A., B.Com., M.Com., are considered as "Academic Degrees" where in the major emphasis is on helping students the contents of the concerned subject(s). It is further submitted that M.Phil degree is a postgraduate research degree programme which is designed for the research students. This degree is said to be a step towards the PhD degree. These types of courses are generally framed, governed and monitored by concerned State/Central Universities as per the guidelines of the University Grant Commission. Copies of the relevant sources are Annexed herewith and marked "Annexure R1A"
Collectively.
4. I respectfully say and submit that as far as the communication dated 7.7.2014 is concerned it is the opinion communicated by the G.S.H.E. Board. Furthermore, it is respectfully submitted that the opinion is taken by placing reliance on the opinion received from the Hemchandracharya North Gujarat University, Patan. The opinions of the university as well as the Board are placed on page no.6667.
5. I respectfully say and submit that the letter dated 7.2.2014 was issued under signature of the Under Secretary, Education Department after getting the approval of the Deputy Secretary. Letter dated 16.7.2014 was issued under the signature of the Section Officer, Education Department after getting the approval of the Deputy Secretary. Copies of both these letters are annexed herewith and marked as Annexure RI and RII.
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6. I respectfully say and submit that the communication dated 16.07.2014, which is annexed at Annexure RI at page no.81 with further affidavit, is the reply to the Commissionerate of Schools with regards to the connotation of "etc." mentioned in the AppendixI of the Selection Rules dated 11.2.2011 which were framed by the Education Department. After getting approval of concerned higher officers of the Education Department, aforesaid letter has been communicated by the Section Officer with the clarification that the degrees which are considered as professional degrees will be covered under the word of "etc."
7. I respectfully say and submit that pursuant to the advertisement dated 29.8.2013 which was published for the post of Higher Secondary Teachers in GrantInAid Private Schools, the selection list was prepared on the basis of evaluation sheet which is prescribed under the AppenxiI (page040) of the Selection Rules dated 11.2.11. For ready reference it is reproduce as under:
(See rule No.11 (3)) No. Qualification Maximum Marks 1 Graduate degree in concerned subject 10 2 Post Graduate degree concerned 10 3 Graduate degrees in professional subject i.e. '05 B.Ed./B.P.Ed. Etc. 4 Post Graduate Degree in professional subject i.e. '05 M.Ed./M.P.Ed. Etc. Total 30 By applying above mentioned criteria in the petitioner's case computer has evaluated petitioner's merit as mentioned below.
Evaluation Tabular No. Qualification Max. Marks Petitioner's qualifications Obtained Marks 1 Graduate degree in 10 B.A. With Sociology 6.42 concerned subject 64.18% 2 Post Graduate degree in 10 M.A. with Sociology '6.025 concerned subject 60.25% 3 Graduate degree in '05 B.Ed. (Bachelor of '4.00 professional subject i.e. Education) 80.00% B.Ed. / B.P. Ed. etc. 4 Post Graduate degree in '05 M. Phil. (Master of '3.287 professional subject i.e. Philosophy in Sociology M.Ed./M.P. Ed. etc. sub.) 65.75% Total 30 '19.730 5 TAT Exam 70 '54.40 '38.080 Page 10 of 27 HC-NIC Page 10 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER Grant Total with M.Phil 100 '57.810 Grant Total without 100 Minus 3.287 of M. '54.523 M.Phil Phil in Sociology degree.
8. It is respectfully submitted that the Selection list of candidates was published for the post of Sociology in General Category, the cutoff marks of the Sociology subject in General Category is 61.13. And as per the sub clause 7 of Clause 11 of selection rules dated 11.2.2011 against the vacant post from the selection list only 10% waiting list can be operated. By applying same the waiting list was also operated. Pursuant the waiting list, the cutoff marks of the waiting list is 60.82 for the General Category in Sociology Subject. The coy of the Selection list and waiting list are annexed herewith and marked as "Annexure R1B collectively.
9. I respectfully say and submit that present petitioner has applied for the Sociology subject Teacher in General Category. As per aforesaid evaluation evaluation of marks, even if the claim of the petitioner for consideration of the M.Phil (Sociology) degree's marks are to be added, petitioner's position falls on number 219 of the common General merit list. Thus, if we consider 61 General posts as well as 10% waiting list i.e. 6 posts in addition the total 67 posts only would be considered for the Sociology Teachers only. I humbly say and submit that the present petitioner is on the rank of 219 including the mark of M. Phil and therefore the present petitioner does not fall in the selection list as well as waiting list. A copy of petitioner's individual merit number list provided by INDEXTB is annexure herewith and marked as "AnnexureR1C".
10. I respectfully say and submit that out of 1865 poss selection list of 1865 candidate's declared against the all posts. However, due to non joining of the selected candidate and even disqualified for appointment for reasons of false certificate, wrong information etc., there were around 817 posts actually filed up. I respectfully say and submit that as per rules dated 11.2.2011, selection list cannot be downgraded if the post has become vacant even after operating the waiting list. In such circumstances only a fresh advertisement is to be published."
10 Mr. Gautam submitted that having regard to the above, and more particularly, in the academic matters relating to equivalence of a degree or the like, the Court should be loath to express its opinion and such issues should be left best to the academician. He submitted that there Page 11 of 27 HC-NIC Page 11 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER being no merit in this writ petition, the same be rejected. 11 I may also refer to the Teachers and Headmasters of the Registered Private Secondary and Higher Education Schools (Procedure for Selection) Rules, 2011 framed by the State Government in exercise of the powers conferred by Section 35 of the Gujarat Secondary and Higher Secondary Education Act, 1972. The Rule 11(2) reads as under:
"The weighatage of 30% will be give, out of the marks secured in the prescribed educational qualification for the concerned post. (Please see the example at Appendix II)."
12 Rule 11 (3) reads as under:
"The maximum marks for the qualification for the purpose of weightage of 30% shall be as prescribed in Appendix I."
13 Under Rule 11(3), referred to above, for the post of Higher Secondary Teachers, the qualification and maximum marks required are as under:
(2) For the post of Higher Secondary Teacher: No. Qualification Maximum marks 1 Gradate degree in concerned subject 10 2 Post Graduate degree in concerned subject 10 3 Graduate degree in professional subject i.e. '05 B.Ed./B.P.Ed., etc 4 Post Graduate degree in professional subject i.e. '05 M.Ed./M.P.Ed. Etc. Total 30
14 The calculation of 30% weightage for the post of Higher Secondary Teachers is as under:
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HC-NIC Page 12 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER (2) For the post of Higher Secondary Teacher: No. Qualification Maximum For example Marks Percentage Marks eligible on the secured by the basis of percentage candidate secured by the candidate (col.3xcol.4/100) 1 2 3 4 5 1 Graduate degree in 10 70 '7.0 concerned subject 2 Post Graduate degree in 10 60 '6.0 concerned subject 3 Graduate degree in '05 80 '4.0 professional subject i.e. B.Ed./B.P.Ed. Etc. 4 Post Graduate degree in '05 60 '3.0 professional subject i.e. M.Ed./M.P. Ed. etc. Total 30 20
15 It is evident from the Office in hand, 2009, which provides for the guidelines framed by the Board that the M. Phil. was considered as a professional degree at one point of time.
16 However, what is important is that in the Rules as well as the advertisement, there is no reference of the M. Phil., but at all places which provides for qualifications so far as the postgraduate degree in a professional subject is concerned, the word "etc" is found. 17 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions fall for my consideration:
(1) Is there anything like an academic qualification compared Page 13 of 27 HC-NIC Page 13 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER to a professional qualification ?
(2) Whether the degree of M. Phil. is a professional qualification ?
(3) What would be the effect of the word "etc" as found in Appendix II at Sr. No.4, wherein the qualifications have been referred to ?
18 I shall deal with the 3rd question first, as in my opinion, the same has created a lot of confusion. The word "etc", according to the Law Lexicon by P. Ramanatha Aiyar means as under:
"Etc or & C. is an abbreviation of Et Cetera, and therefore may mean and others, and so forth ; and the rest ; other things ; other things of the same character, or only those things ejusdem generis. Customs, the intention of the parties, the context, and the manner and place in which the abbreviation is used may govern its meaning ; but where it can have one certain meaning, it will be given that meaning ; although as sometimes used it is considered as meaningless and without effect, and is often disregarded as surplusage (Cyc)"
19 The use of the word "etc" shows some amount of carelessness on the part of those who drafted the rules as well as the advertisement. Such carelessness gives rise to unnecessary litigation and embarrassment to the Government. The word "etc" means "the rest" i.e. to say, other things of the kind specified. One more question arises whether the rules of ejusdem generia should be applied for the construction of the initial degrees or qualifications mentioned therein. I am of the view that the rules of ejusdem generis could be applied for the purpose of construction provided the initial words are general in nature. When a specific qualification is prescribed, like M.Ed. / M.P.Ed., then probably, to Page 14 of 27 HC-NIC Page 14 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER include M.Phil. along with it by applying the rules of ejusdem generis would not be correct. I am saying so because the argument of the State Government is that the requirement is of a professional degree and not an academic degree and the State Government is treating the M. Phil. as an academic degree and not a professional degree. 20 The above takes me now to consider what is a professional degree compared to an academic degree. The Master of Philosophy (M.Phil. or MPhil, sometimes Ph.M.) is an advanced postgraduate degree. The prerequisites required for a Master of Philosophy degree make it the most advanced research degree before the Doctor of Philosophy (Ph.D. or D.Phil). An M.Phil. is in most cases thesisonly, and is regarded as a senior or second Master's degree, standing between a taught Master's and a Ph.D. An M. Phil may be awarded to graduate students, after completing several years of original research but before the defence of a dissertation, and can serve as a provisional enrollment for a Ph.D. 21 Many professionals find themselves struggling with the decision of whether to obtain an academic degree or a professional credential. Both academic and professional credentials indicate some form of achievement of allow the successful candidate to use certain initials after their name, but that is where their similarities end. The fundamental difference between the two is a professional credential that certifies that Page 15 of 27 HC-NIC Page 15 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER the bearer has the essential knowledge and skills of a specified area of expertise necessary for the safe and appropriate practice of a trade or profession. Academic credentials indicate that a person has successfully completed a nonstandardized course of study with no certification of competence in a particular trade or profession. Unlike academic institutions, professional associations regulate and are accountable for the professional behaviour of their accredited members for the duration of their career through ethical codes of conduct and continuous professional development requirements. The academic institutions are concerned with student behaviour while they are earning the credential, but do not set out rules that graduates must abide by after graduation. Professional credentials can be revoked at any time for professional misconduct, where academic credentials are granted unconditionally after successful completion of studies.
22 According to Claude Balthazard, Ph.D., CHRP, Director, HR Excellence and Registrar, Human Resources professionals Association, both, academic and professional credentials are indicative of some form of achievement, and both entitle the bearer to use certain initials after their name, but beyond that they are quite different. The most apparent difference is that with professional designations, one must pay dues to the professional association or the regulatory body on an annual basis in order to continue to have the right to use the designation of title, Page 16 of 27 HC-NIC Page 16 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER whereas with academic credentials, once the credential is conferred one does not need to pay anything to the academic institution to have continued use of the academic credential. Nonetheless, the differences are more fundamental than that.
The essential difference between professional and academic credentials is that professional credentials are 'warrants of competence' or 'warrant of expertise' whereas academic credentials are not. With professional designations, the certifying body is warranting that the certified worker (tradesperson or professional) has the essential knowledge and skills of a specified domain necessary for safe and appropriate practice of the trade or profession. With academic credentials, there is no such 'warrant of competence,' an academic credential means that someone has successfully completed a particular course of study not that one is competent to practice a trade or profession.
Because professional designations are 'warrants of competence,' it become important for certifying bodies to define specifically what certificants must be competent to do. Professional designations are always built upon a practice analysis which defines what certified individuals need to know or be able to do. Academic credentials are rarely based upon formal and systematic practice analysis.
Although some educational institutions may make claims about Page 17 of 27 HC-NIC Page 17 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER the competence of their graduates, these are not 'warrants of competence' in any true sense. For one, academic institutions do not assume responsibility of the actions of their graduates. By contrast, professional do have some ongoing responsibility for the behaviour of their members. Professional associations and regulatory bodies are accountable for their certification processes. Professional associations and regulatory bodies must be able to demonstrate that they demonstrated due diligence in their certification process. This does not mean that errors cannot be made, but professional associations and regulatory bodies must be able to demonstrate that their certification requirements and standards and assessment protocols provide reasonable protection to the public.
This ongoing warrant of competence or expertise, points to another key difference between academic and professional credentials:
recertification. Academic credentials are good forever, even when the knowledge and skills are either longforgotten or made entirely obsolete by the passage of time. By contrast, the academic credentials have no expiry date. Many professional designations now require recertification in one form or another. The idea is that certified individuals must maintain the level of competence required for competent practice. With such professional designations, individuals who fail to maintain their knowledge and skills up to standards, or who fail to document their Page 18 of 27 HC-NIC Page 18 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER efforts at maintaining their knowledge and skills, will lose their certification. In some professions, members are subject to peer review or professional inspections. The idea here is that the professional association or regulatory body goes beyond periodic recertification to ensure that certified individuals maintain their knowledge and skills current.
Then there is the matter of recourse. Should a certified individual exhibit misconduct or fail to live up to the standards of the profession, the professional association or regulatory body provides for complaints and discipline processes. Academic institutions do not have such mechanisms.
Professional associations and regulatory bodies have a concern about the ethics of their members that academic institutions do not.
Academic institutions are concerned about academic misconduct and other forms of misbehaviour but only in relation to achieving the credential. Educational institutions do not set out rules of conduct that graduates must abide by after graduation. The terms 'warrant of competence' or 'warrant of expertise' are too narrow really. Professional associations and regulatory bodies are, in fact, offering 'warrants of appropriate professional behaviour,' which includes not only competence but professional ethics and behaviour as well.
As part of their certification requirements, professional Page 19 of 27 HC-NIC Page 19 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER associations and regulatory bodies will often require a specific level of academic credential, or completion of a specific course of study.
Although professional associations and regulatory bodies will sometimes provide some required training, the bulk of foundational knowledge and skills required for professional certification are delivered by educational institutions. What may blur the distinction between professional and academic credentials is the sometimes close cooperation between credentialing bodies and educational institutions. Educational institutions are well aware that an important reason students enrol in professional programs is to eventually achieve certification. Such programs are designed to meet the educational requirements of the relevant certifying body. Certifying bodies will, for their part, will publish lists of approved programs or courses. Despite this cooperation with educational institutions, most certifying bodies still conduct examinations. As the 'warrantors of competence,' professional regulatory bodies are loathe to delegate the assessment of competence to some other body. That is why professional regulatory bodies will specify education as an eligibility requirement but still conduct their own assessments.
In addition to educational requirements, however, professional associations and regulatory bodies will require candidates to have some minimum amount of experience. Although some academic programs will Page 20 of 27 HC-NIC Page 20 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER include various practica and coop terms, the experience requirements of professional and trade designations are typically much more extensive than academic programs.
Another difference between professional and academic credentials is that, in any given jurisdiction, there is only one professional association or regulatory body that will issue a given professional credential. Academic credentials, such as B.Comm., B.A., B.Sc., MBA, Ph.D., are granted by a number of different academic institutions each accredited to issue such credentials.
Another interesting difference between professional and academic credentials is in credential verification. Federal and Provincial legislations in Canada require permission to research any information identifiable to an individual. Verifying an individual's claim that they have been granted a will require this individual's usually in the form of a signed release. By contrast, verifying an individual's claim that they have a professional designation is usually as simple as consulting a public register on line. Indeed, professional registers are, by law, public documents. One does not need any kind of authorization or release to verify a professional credential, and professionals cannot block the publication of such information.
23 The Supreme Court in the case of Dr. Prit Singh v. S.K. Mangal and others [1999 Supp (1) SCC 714], while examining the validity of Page 21 of 27 HC-NIC Page 21 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER the appointment of the appellant as Principal of the college made certain observations which would give a fair idea about an academic qualification and a professional qualification:
"11. It need not be pointed out that the Degree of Master of Arts is an academic qualification, whereas Degree of Master of Education is a professional qualification. According to us, when the qualifications required "a consistently good academic record with first or high second class (55% marks/grade B in the seven point scale) Master's Degree in any subject"; (emphasis added) it shall mean an academic qualification like Master of Arts. The said requirement was prescribed with a "a consistently good academic record". That Master's Degree shall mean Degree of Master of Arts in any subject, is apparent also from the fact that apart from that degree the candidate was required to possess also "Degree in Education"
which will mean B.Ed. or M.Ed. Normally if the expression "Master's Degree" was to include even the Master's Degree in Education (M.Ed.) there was no necessity of prescribing the third requirement of a "Degree in Education".
24 In Dr. M.S. Mudhol v. S.D. Halegkar and others [(1993) 3 SCC 591, the statutory rules prescribed the essential qualifications to the post of Principal of the School in question, inter alia, to be a Masters Degree with at least 2nd Division from a recognized University or equivalent. The rules also required a degree in teaching from a recognized University or equivalent. The Supreme Court held that the Masters Degree was an academic qualification while an M.Ed. degree was a professional qualification. Paragraphs 1 and 4 of the judgment read as under: "1. The controversy in the present petition relates to the eligibility of the 1st respondent to occupy the post of the Principal of the Delhi Kannada Senior Secondary School which is being run in New Delhi. The 1st respondent was appointed as the Principal of the school in the year 1981. The statutory rules prevalent at the relevant time prescribed the essential qualifications for the said post as follows:
(i) Master's degree with at least 2nd Division from a recognised Page 22 of 27 HC-NIC Page 22 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER university or equivalent.
(ii) A degree in teaching from a recognised university or equivalent.
(iii) Experience of 10 years' teaching as a VicePrincipal/P.G.T. (Post graduate Teacher) in a Higher Secondary School or InterCollege.
The condition with regard to the 2nd Division was relaxable in the case of the candidates belonging to the same school and also in the case of the Scheduled Caste and Scheduled Tribe candidates. The desirable qualifications were:
(i) Experience in administrative charge of a recognised Higher Secondary School/InterCollege.
(ii) Doctorate Degree.
(iii) M.Ed. degree from a recognised university."
"4. The contention of the respondents that M.Ed. (sic M.A.) 2nd Division was equivalent to M.A. (sic M.Ed.) 2nd Division is obviously fallacious. The former is the academic qualification while the latter a professional qualification. Secondly, the course of the former is wholetime spread over no less than two years while the course of the latter is parttime and is spread over one year. In any case, the statutory rule with regard to the essential qualifications is very clear inasmuch as it requires both academic Masters' degree and the teaching degree, the latter being not the substitute for the former. What is further, while laying down the qualifications with regard to the academic degree viz. the Masters' degree, the rule insists upon 2nd Division for such degree. It does not insist upon a 2nd Division degree in teaching. A pass degree is sufficient in its eyes. It would, therefore, amount to distorting the requisite qualifications under the rules, to attempt to substitute the teaching qualification for the academic qualification and exchanging the divisions of the two. In fact, it appears that the Director of Education had himself at one time not approved the qualifications of the 1st respondent for the post of the Principal since he did not have the 2nd Division degree in M.A. However, it is not known what transpired subsequently. After a lapse of few months, he acquiesced in the qualifications of the 1st respondent to hold the said post. It is for this reason that we had issued notice to the Director of Education who is the 2nd respondent to the petition. An affidavit has been filed on his behalf but except for the rigmarole, we do not find anything in the affidavit to enlighten us either on the interpretation of the said rule or on the reasons which led him to change his earlier decision in the matter. We have, therefore, no doubt that the 1st respondent did not have the requisite educational qualifications to be selected for the post of the Principal."
25 The requirement as prescribed in the advertisement also made it very clear that the candidates should be holding a professional degree Page 23 of 27 HC-NIC Page 23 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER like M.Ed. / M.P.Ed. In the case in hand, the degree of M.Phil., according to the respondents, would not fall within the ambit of "professional degree" or "a professional course".
26 Mr. Pujara, the learned counsel appearing for the petitioner made an effort to convince this Court that the degree of M.Phil. should be treated as a professional qualification or a degree obtained in a professional course. At least, I am sure of one thing that the degree of M.Ed. / M.P.Ed. should not be treated as equivalent to M.Phil. with Sociology as the principal subject. I am at one with Mr. Pujara that in this type of matter things should be very clear and a person desirous of seeking a public employment should not be left in any state of confusion. That is the reason why I have criticized the use of the "etc". In the matter of qualifications, nothing should be left to "etc". The Rules should be very specific and clear so that a person before pursuing any course should know what would serve the best in his interest. At one point of time, the M.Phil. was being considered as a professional course. In the aforesaid context, I may quote the observations of the Supreme Court in the case of Tariq Islam v. Aligarh Muslim University [AIR 2001 SC 3058]:
"8. In the present case, the High Court has merely relied upon a book published as equivalence of foreign degrees' by the Association of Indian Universities and places its interpretation that the B.A.(Hons) degree possessed by the appellant is not equivalent to Master's degree of the Aligarh University and, therefore, the appellant lacks essential qualification for appointment as the Lecturer. The contents of the Page 24 of 27 HC-NIC Page 24 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER publication, apart from the Book itself, cannot be ascribed with any official sanctity of binding force or authority. The glaring facts arising in this case have not been taken note of by the High Court. The appellant had already obtained M.Phil. and Ph.D.degrees from the respondent University. At the time of his admission to M.Phil. leading to Ph.D.course in the Department of Philosophy, the question of equivalence in qualification was examined in detail and the Academic Council approved his admission to M.Phil. or Ph.D. Course. In the event his qualification of B.A.(Hons) degree from the Council of National Academic Awards is not equivalent to Master's degree, he could not have been admitted to M.Phil. leading to Ph.D.course. But to say that such acceptance of such equivalence is only for the purpose of admission to M.Phil. leading to Ph.D.course and not for other purposes will lead to anomalous results. Equivalence of qualification has to be determined before a person is allowed to undergo a course. When the appellant as a result of such admission obtained such high qualifications as M.Phil./Ph.D. it is difficult to imagine that the equivalence of qualification obtained by him earlier was not considered by the University. After having obtained such degrees to nullify the equivalence declared by the Academic Council and the ViceChancellor will be to put the clock back causing grave injustice to the appellant. Had he been denied admission on the ground that his qualification is not equivalent to the Master's degree, he might have obtained an equivalent qualification or pursued his studies else where. That opportunity having been deprived to him and his admission to such courses having been ratified based on the recommendations of the equivalence committee, it cannot be nullified in the manner it has been done."
27 I am of the view that although the decision impugned is an administrative one which is in the sole discretion of the concerned authority and the Court has nothing to do with such matter, yet, with a view to see that this confusion is set at rest once and for all in the interest of people at large, the Government must constitute a high level Committee of Experts in the field of education and get this issue resolved at the earliest. I lack the expertise in the matter of the present type and tread to go into it. For the present, I have decided to exercise judicial restraint and not interfere till the report of the experts is before the Page 25 of 27 HC-NIC Page 25 of 27 Created On Wed Oct 14 02:47:09 IST 2015 C/SCA/15876/2013 CAV ORDER Court.
28 For the present, the following directions are issued:
(1) The State Government is directed to constitute a team of Experts at the earliest to look into this issue and be guided by the opinion which the Experts may express.
(2) The State Government should seriously think of looking into the rules where the word "etc" has been used and see to it that the same is taken care of so that no individual gets misguided by the same. I am saying so because the person would pursue his academic career according to the rules governing the appointment to a particular post. After obtaining a degree of B.P.Ed., all of a sudden, if he is told that his degree of M.Phil. is of no use for the purpose of an appointment as the Secondary or Higher Secondary Teacher, then his other degrees would be of no help to him. If a person knows that it is only the M.Ed. / M.P.Ed. qualification, which would fetch marks as alloted under the rules, then he would not take the risk of going for M.Phil.
29 The respondents shall, within a period of eight weeks, place the report of the Committee of Experts before this Court. The registry shall notify the matter after the report is place on record.
(J.B.PARDIWALA, J.)
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chandresh
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