Asha Devi vs State Of Himachal Pradesh And Ors

Satyen Vaidya, J

By way of instant petition, petitioner has prayed for following substantive reliefs: -

(a) To issue a writ of certiorari or direction in nature thereof, quashing the impugned order dated 29/11/2011 being Annexure P-8 of the writ petition, as unconstitutional and illegal and contrary to the law;

(b) To issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondents No. 2 to select the petitioner for the post of Language Teacher from the date other similarly situate persons are selected with all the consequential benefits;

The relevant facts in brief are that the petitioner has a degree of “Vishishta Shastri” from Himachal Pradesh University (for short, ‘HPU’). The 2nd respondent issued advertisement dated 03.12.2010 for filling-up the posts of Language Teacher (for short, ‘LT’). The essential qualification for the said post was Bachelor of Arts with Hindi as an elective subject from recognized University with 50 % marks in Hindi or its equivalent.

Petitioner submitted her application for the post of LT in response to aforesaid advertisement. She appeared in the written test and qualified the same. However, the candidature of the petitioner was finally rejected vide impugned communication dated 29.11.2011, Annexure P-8, on the ground that the petitioner lacked essential qualification.

I have heard learned counsel for the parties and have also gone through the record.

Noticeably, the essential qualification as prescribed for the post of LT was B.A. with Hindi as an elective subject from recognized University with 50% marks in Hindi or its equivalent (emphasis added). Thus, possession of any degree equivalent to B.A. with Hindi as an elective subject could also be taken into consideration for the purposes of fulfilment of prescribed essential qualification.

According to the petitioner, the degree of “Vishishta Shastri” was equivalent to B.A. with Hindi as an elective subject. Petitioner has sought to establish her contention by alleging that on the basis of the degree of “Vishishta Shastri”, the HPU had allowed her to qualify the M.A. and M. Phil. courses in Hindi.

The respondents on the other hand have not accepted the degree of “Vishishta Shastri” as an equivalent degree in B.A. with Hindi as an elective subject.

Needless to say, that this Court neither has any expertise to evaluate different degrees for the purposes of equivalence nor has jurisdiction to venture into such issue. This well settled principle has recently been reiterated in the judgment passed by Hon’ble Supreme Court in the matter of Shifana P.S. v. State of Kerala, (2024) 8 SCC 309 as under:

“13. This Court in Zahoor Ahmad Rather v. Sk. Imtiyaz Ahmad [Zahoor Ahmad Rather v. Sk. Imtiyaz Ahmad, (2019) 2 SCC 404 held that judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Therefore, the equivalence of a qualification is not a matter that can be determined in the exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. (emphasis supplied)

In Unnikrishnan CV v. Union of India (2023) 18 SCC 546, a three-Judge Bench of this Court, while relying upon the earlier judgment in Guru Nanak Dev University v. Sanjay Kumar Katwal (2009) 1 SCC 610 held that equivalence is a technical academic matter, it cannot be implied or assumed. Any decision of the academic body of the University relating to equivalence should be by specific order or resolution, duly published.”

The above constraint, however, does not imply that this Court in exercise of jurisdiction under Article 226 of the Constitution of India is precluded from examining the legality of decision-making process at the touchstone of principles of fairness and good conscience.

According to the 2nd respondent it had taken up the matter regarding equivalence of degree of ‘Vishishta Shastri’ with the requisitioning authority i.e. the Director of Elementary Education and the said authority vide correspondence dated 29.08.2011 had intimated that both the degrees could not be equated. A copy of said communication from the Director of Elementary Education, Himachal Pradesh to 2nd respondent is on record as Annexure R/1, which reads as under: -

“ ……. it is intimated as per Assistant Registrar (Academic) Himachal Pradesh University letter No. 3-34/2011-HPU(Acad.)-9657, dated 08.08.2011 that Vishishta Shastri is not equivalent to B.A. as these are two different degrees. Therefore, you are requested to take necessary action as per R&P rules Language Teacher notified by the Government vide notification no. EDN-C-A (#)-2/2009-III, dated 14.07.2011.”

It is evident from the contents of the above reproduced letter that the Director of Elementary Education had submitted his opinion on the basis of communication dated 08.08.2011, addressed by Assistant Registrar (Academic) H.P. University.

The 3rd respondent i.e. HPU has filed an affidavit dated 08.04.2021, stating inter alia that the HPU decides the equivalence of degree courses of other Universities with that of the courses run by HPU on reciprocal basis for the purposes of admission only. As regards, equivalence of degree for the purposes of appointment, it has been submitted that the R & P Rules for particular post are framed by the Government of Himachal Pradesh. Reference has also been made to existence of State Level Board of Equivalence Committee, which is stated to be competent to decide the matter regarding equivalence of degrees for the purposes of appointment and promotion etc.

The Director of Elementary Education, Himachal Pradesh, also filed his affidavit dated 29.04.2021. The relevant extract of the said affidavit is reproduced as under:-

“2. That  it  is  submitted  that as  per  the instructions issued by the Ministry of Human Resource Development, Government of India on 22.10.2013 regarding recognition/ equivalence of certificates/ degrees awarded by Rashtriya Sanskrit Sansthan. The degree of Shastri is equivalent to B.A. The petitioner has passed Shastri degree with Hindi as optional subject by securing 39% marks whereas as R & P Rules of Language Teacher prevalent at that time the essential educational qualification to become a Language teacher  was  "B.A  with  Hindi  as  an elective subject from a recognized university with 50% marks in Hindi or its equivalent".

That it is submitted that the University of Himachal Pradesh has clarified vide letters dated 08.08.2011 and 17.03.2021 that the "Vishishta Shastri degree is not equivalent to B.A degree course of this University as the both streams are different. However, the University awards the degree of B.A (Hons.) with classic to the candidate(s) of Vishishta Shastri of this University only for seeking admission in next higher classes and does not equate any degree of another University for the purpose of appointment/promotion as it falls within the jurisdiction of the State Government. Therefore, the degree of Vishishta Shastri as well as B.A Honors with classic obtained by the petitioner is not equivalent to B.A for the purpose of appointment/promotion. Besides this the petitioner had studded the subject Hindi as an optional subject with aggregate of 43.91%.”

The  aforesaid  factual   background   clearly suggests that the respondents, in fact, have not undertaken any exercise of comparative evaluation between the degrees of “Vishishta Shastri” and Bachelor of Arts for judging the equivalence. There is nothing to suggest that the matter was referred to State Level Board of Equivalence Committee or any other expert body.

Even the declaration made in the affidavit of Director Elementary Education, Government of Himachal Pradesh that petitioner has less than 50% marks in Hindi is factually incorrect.

In result, the petition is allowed; the impugned communication dated 29.11.2011, Annexure P-8, is quashed and set aside. Respondent No. 1 is directed to get the matter regarding equivalence between degree in ‘Vishishta Shastri’ and degree in Bachelor of Arts with Hindi as an elective subject examined from an expert body competent to do so and to take appropriate decision thereafter. Keeping in view the long pendency of the claim of the petitioner, it is directed that the entire exercise in terms of this judgment shall be completed within six weeks from today.

The petition is, accordingly, disposed of, in aforesaid terms, so also the pending miscellaneous application, if any.