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Judgment
Respondent No.1 issued an employment notification on 31st May, 1989 calling for applications for various posts including the post of Reader in the Applied Linguistics. Number of candidates filed their applications. The petitioner as well as respondent No.9 applied for the post. The petitioner was not selected whereas respondent No.9 was selected and he was eventually appointed as Reader by an order dated 4th December, 1989. This writ petition has been filed immediately thereafter and is pending since then. The selection and appointment of respondent No.9 has been challenged through the medium of this writ petition. Mainly the selection and appointment of respondent No.9 has been challenged on the ground that respondent No.9 was not eligible to be appointed as Reader in Applied Linguistics in the Centre for Applied Linguistics and Translation Studies. It is further stated that the petitioner was eligible and a direction is sought from this Court that the selection and appointment of respondent No.9 be quashed.
Before this notification, another notification had been issued in May, 1988. After this notification was issued certain candidates applied, according to petitioner respondent No.9 also applied who was not at all eligible, but the posts were not filled up although certain candidates like one Miss. Usha Devi was eligible. The posts were allowed to remain vacant. So in pursuance of the advertisement made in the year 1988 no appointments were made and thereafter same posts were notified again after a lapse of one year by the 1st respondent University vide employment notification No.RECTT/5/ 89, dated 31st May, 1989. The qualifications stipulated were the same as stipulated in the notification of 1988. In response to 1989 notification, the petitioner as well as respondent No.9 and certain other candidates applied for the post of Reader in Applied Linguistics and eventually respondent No.9 was selected. Respondent Nos.2 to 8 were the members of the Selection Committee who interviewed the petitioner on 30th November, 1989. The petitioner states that he was interviewed for 45 minutes and he had faired well in the interview, but respondent No.9 was selected and orders were issued appointing him as Reader on 4/5th December, 1989.
Before appreciating the controversy a reference has to be made to notification issued in the year 1989. Under Serial No.2, qualifications, experience, areas of specialisations and likely number of vacancies for various faculty positions has been mentioned. The qualifications prescribed for Readers are enumerated as below :
"READER
(i) A first or high Second Class Master''s degree in the subject concerned and consistently good academic record;
(ii) A doctorate degree and published work of high standard; and
(iii)At least five years post-graduate teaching experience or five years of post-graduate teaching experience and post-doctoral research experience taken together.
Under the heading ''desirable qualification'' it is laid down that, a Ph.D degree in the relevant subject or research work of equally high standard.
In the light of qualifications laid down in the notification it has been stated that, respondent No.9 was not eligible for appointment as he did not possess the teaching experience of five years on the date the notification was issued i.e., on 31st May, 1989. The impugned order has also been challenged on the ground that respondent No.9 had not the basic qualification of having a Master''s degree in Linguistics as was stipulated in the notification.
Counter has been filed by respondent No.9 as well as respondent University. I have heard the learned Counsel for the parties.
It has not been denied rather it has been admitted that respondent No.9 had not five years teaching experience on the date the notification had been issued, but the selection has sought to be defended on the ground that respondent No.9 had the requisite experience of five years teaching on the date the selection was made. It has also not been denied that the respondent No.9 had not the qualification of a Master''s degree in Applied Linguistics but the selection has been sought to be defended on the ground that the petitioner had, if not better but equivalent qualification for being considered and appointed as a Reader.
Therefore, in the light of the submissions made in the counter-affidavits and in the writ petition, this Court will have to see whether the selection and consequential appointment of respondent No.9 to the post of Reader was vitiated or not.
The Counsel for petitioner submits that as it has been admitted that the respondent No.9 had not the requisite qualification of five years of teaching experience on the date of issuance of notification, therefore the selection and the appointment has to be quashed. He based his argument on the various pronouncements of the Supreme Court. On the other hand, the Counsel for respondents submits that, since advertisement did not lay down any date, therefore it is not proper to consider the date of issuance of notification as a cut-off date for showing whether a candidate was eligible or not, therefore, the date of selection is material and if a candidate was eligible and qualified on the date the selection was made, the selection cannot be vitiated.
This controversy as to whether a candidate has to fulfil the criteria of eligibility on the date of notification or on the date of selection, in my view, is no longer res integra. This matter has been considered by the Apex Court in number of cases starting with Ashok Kumar Sharma and Another Vs. Chander Shekher and Another, . Ashok Kumar Sharma''s case was decided by a majority view and a review had been filed in the matter which came to be decided in 1997 with same title Ashok Kumar Sharma and Others Vs. Chander Shekhar and Another, . So, the law in between 1993 and 1997 that is when Ashok Kumar Sharma''s case was decided originally and when the review petition was decided, many more matters came to be decided by the Supreme Court and it has almost been the consistent view of the Apex Court that the person applying for a post must be eligible on the date that is fixed for receiving applications. In Ashok Kumar Sharma ''s case when it was decided for the first time, the SLP arose from a decision of High Court of Jammu and Kashmir and Justice T.K. Thoman and Justice V, Ramaswamy gave majority judgment whereas Justice R.M. Sahai gave a minority opinion. The facts of the case were that, an advertisement was issued by the State Government on 9th June 1982 by which applications were invited for appointment to the posts of Junior Engineers and the last date fixed for submission of applications were July 15, 1982. The appellants before the Supreme Court had appeared in B.E. examination and were waiting for results which were declared on August 21, 1982 much after the last date for submission of applications. Interviews were held and the appellants before the Supreme Court were declared selected on 21st April. 1983 and they were accordingly appointed as Junior Engineers. In the merit list prepared by the Selection Committee they were placed seniors to the respondents whereupon respondents challenged their appointment on the plea that they were not eligible on the date when they submitted application forms. The matter was taken in the High Court by two different writ petitions. Two learned single Judges of the Court by two separate judgments dismissed the writ petitions and found that the same were hit by laches. The High Court also found that by considering those candidates who had acquired qualification after the last date of filing of the application form the Government had only widened the scope of selection and the selection had been made broad based. Appeals were taken against these two judgments. The Letters Patent Bench of the Jammu & Kashmir High Court reversed the judgment and an appeal was taken to the Supreme Court and the Supreme Court after examining the legal position decided the matter. The matter was primarily decided on the strength of Rule 37 of Jammu & Kashmir Public Service Commission Business Rules which provide that, applications of candidates who had appeared for examination results whereof were awaited can be accepted provisionally. This rule also lays down that, no candidate would be permitted to have interview unless he had been declared successful in the examination before the date of interview. Justice T.K. Thorium and Justice Ramaswamy ruled that, Rule 37 was not directly applicable to the facts of the case but they held that the principle laid down in the rule could be applied to the facts of the case. The Supreme Court held :
"14. If the principle of Rule 37 is by analogy applicable, the fact that notice of provisional entertainment of applications, subject to passing of the examination before the date of interview, is a requirement in the interests of candidates who fell within that category. The appellants are by analogy persons of that category, but they have no complaint on any such ground."
The Supreme Court had also found that, appellants had passed the examination before the interview was conducted. It upheld the view of the learned single Judges of the High Court of Jammu & Kashmir that by including such ''ineligible candidates'' the recruiting authority had made selection process broad based and secured the best available talent on comparative merit. Eventually the judgment of Division Bench of Jammu & Kashmir High Court was reversed. However, Justice Sahai did not agree with the view and gave his minority opinion in the matter.
After this judgment, the Ashok Kumar Sharma''s case was reviewed by the Supreme Court which was reported in Ashok Kumar Sharma v. Chander Shekhar, (supra). Following two questions were considered by the Supreme Court in review :
(1) Whether the view taken by the majority (Hon''ble Dr. Thommen and V. Ramaswami, JJ) that it is enough for a candidate to be qualified by the date of interview even if he was not qualified by the last dale prescribed for receiving the applications, is correct in law and whether the majority was right in extending the principle of Rule 37 of the Public Service Commission Rules to the present case by analogy ?
(2) Whether in the facts and circumstances of the case, would it not be just to restore the direction of the Division Bench with respect to the inter se seniority between the two sets of candidates, namely those who were qualified as on the last date for receiving applications and those who were not so qualified. In other words, the question is whether the direction of the Division Bench to treat the candidates who were not qualified by the last date of receipt of applications as juniors, as a class, to those who were qualified, was not a just one ?
In the present case we are concerned with the answer to question No.1 of the Supreme Court and the Supreme Court in unambiguous terms declared that the law laid down by the majority judgment earlier in Ashok Kumar Sharma''s case was not sustainable in law. The Supreme Court held :
"The proposition that where applications are called for prescribing particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and infact was not doubted or disputed in the majority judgment."
The Supreme Court also referred with approval to the Mrs. Rekha Chaturvedi (Smt) Vs. University of Rajasthan and Others, . The Supreme Court while commenting upon its own earlier judgment also held that, it could be an impermissible justification to suggest that by allowing candidates who are not qualified on the last date to compete was an effort to get the best talent available and to suggest that such a course was in furtherance of public interest. They further held that, R.M. Sahai, J''s opinion in the earlier case was the correct view of the law.
Looking into the back ground of the judgments of the Supreme Court and keeping in view the fact that the respondent No.9 had not the requisite experience on the last date fixed for receiving the applications i.e., 15th July, 1989, I have no doubt in my mind that the respondent No.9 should not have been considered even for selection. His application should have been rejected at the inception as has been laid down by the Supreme Court in concrete and unambiguous terms in the review judgment of Ashok Kumar Sharma''s case. This view has not even been disputed by Counsel for respondents. Only two defences have been taken by the Counsel for respondents; (a) that, it is after almost ten years that the selection would have to be quashed and the respondent No.9 is working to the satisfaction of the University authorities for the last ten years and it will be harsh if his selection and appointment is quashed at this time, and (b) that, when selection was made in 1989 the judgments of the Supreme Court were not available. All the judgments which laid down that the persons eligible must be qualified on the date of submission of the application had not concretised as is concretised now.
While pressing into service the first argument of equity the learned Counsel for respondent No.9 refers to Ashok Kumar Sharma''s judgment (supra) in which selections were not disturbed although it was held that the selections were bad. He also refers to Rekha Chaturvedi''s case (supra). In this case the Supreme Court found that, all the respondents except respondent No. 10 were not having the basic qualifications on the crucial date. The Court also found that the qualification bar was not relaxed in their favour by the scrutiny committee. The Supreme Court upheld the principle that candidates should possess the qualifications prescribed with reference to the last date for making application and not on the date of interview or selection. The Court found that selection in question was liable to be quashed. It also referred with approval to A.P. Public Service Commission, Hyderabad and Another Vs. B. Sarat Chandra and Others, and District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another Vs. M. Tripura Sundari Devi, . But, in para 11 the Court said :
"11. However, for the reasons which follow, we are not inclined to set aside the selections inspite of the said illegality. The selected candidates have been working in the respective posts since February, 1985. We are now in January, 1993. Almost eight years have elapsed. There is also no record before us to show as to how the Selection Committee had proceeded to weigh the respective merits of the candidates and to relax the minimum qualifications in favour of some in exercise of the discretionary powers vested in it under the University Ordinance. If the considerations which weighed with the Committee in relaxing the requisite qualifications were valid, it would result in injustice to those who have been selected. We, however, feel it necessary to emphasise and bring to the notice of the University that the illegal practices in the selection of candidates which have come to light and which seem to be followed usually at its end must stop forthwith."
So, in this case also after holding that the selection was bad the Supreme Court did not disturb the selections.
In U.P. Public Service Commission U.P., Allahabad and Another Vs. Alpana, , the Supreme Court after holding that the selection was bad ordered :
"In the result, the appeal is allowed. The impugned order of the High Court is set aside and the writ petition of the respondent will stand dismissed. However, if the respondent has been appointed in obedience to the High Court''s order her appointment shall not be cancelled, but if she is not appointed she will not be entitled to appointment on the basis of the High Court decision reversed hereby."
So, in the present case also almost ten years have passed after the selection had been made. Therefore, following the decision of the Supreme Court, although holding that the respondent No.9 had not been eligible on the crucial date and he should not have been considered at all for selection, I am of the view that it will be harsh on respondent No.9 if his selection and consequential appointment is quashed after ten years. Had lie not been selected or considered for appointment, perhaps he would have been considered or even selected in subsequent selections, but in between he has lost ten years. Therefore, though I agree that the arguments made by the learned Counsel for the petitioner, yet the selection cannot be quashed on the basis of pure equities.
The second objection which has been taken by the Counsel for the petitioner was that the respondent No.9 lacked even the educational qualification, he had not the Master''s degree in the relevant subject. To this, the respondent No.9 has replied with the following assertions. He submitted :
"I obtained Master''s degree in Oriya from Viswa Bharati, Shanti Niketan in the year 1975. I have also obtained Post M.A., Diploma in Linguistics followed by Advanced Diploma in Applied Linguistics from the University of Delhi during the years 1978 and 1979 respectively. I submit that the Post M.A. Diploma course in Linguistics followed by the Advanced Diploma course in Applied Linguistics are equivalent to M.A. course in Linguistics of the University of Delhi. This is evident from the certificate issued by the Head of the Department of the Linguistics of University of Delhi on 23/24 December, 1983 and the certificate issued by the Dean, Faculty of Arts and Head of the Department, Department of Linguistics, University of Delhi on 19-8-1998. The above fact is further more evident from a perusal of the syllabus prescribed for M.A., in Linguistics, Post M.A. Diploma in Linguistics, and Advanced Diploma in Applied Linguistics of the University of Delhi."
In the light of what has been stated by the respondent in his affidavit, it is admitted that he had not the Master''s degree in the Applied Linguistics. He had a Master''s degree in Oriya and certain diplomas in Linguistics which he claims to be equivalent to Master''s degree in the Linguistics. I have seen the record of the Selection Committee and also the Scrutiny Committee. Nowhere it is shown in the record as to whether the respondents ever considered the question as to whether respondent No.9 had the basic prescribed qualifications or not. It becomes curious in view of the fact that the advertisement did not lay down ''Master''s degree or equivalent'', it only lays down that the candidates should have a Master''s degree in the concerned subject and the concerned subject for which the respondent had applied was Applied Linguistics. The petitioner on the other hand a Master''s degree in the Applied Linguistics. Respondent No.9 had not Master''s degree in Applied Linguistics, he had a master''s degree in Oriya and certain diplomas. He has placed on record the syllabus of Master''s degree of Applied Linguistics and also of the Diplomas which he had acquired. I am afraid, this Court is not in a position to compare the two syllabi and come to a conclusion whether Master''s degree in Applied Linguistics is equivalent or better to the P.O. Diplomas which the respondent No.9 had acquired. Decidedly respondent No.9 was not in possession of the qualifications laid down in the advertisement. Whether the qualifications which he was possessing were equivalent or not was a question which should have been decided by the competent authorities and the respondent authorities were more suitable to come to a conclusion whether the qualifications acquired by respondent No.9 were equivalent to the Master''s degree or not. In the counter-affidavit filed on behalf of respondent No.1 it has been stated :
"It may also be relevant to submit that the 9th respondent has, besides a Ph.D degree and M.A. degree in an Indian Language, an Advanced Diploma in Applied Linguistics obtained from Delhi University where, according to its regulations, this Advance Diploma is considered equivalent to M.A. in Applied Linguistics. Therefore, he was fully qualified to be a Teacher in Applied Linguistics."
Two crucial questions arise by these averments in the counter-affidavit filed by respondent No.1. One, they have not stated that Advanced Diploma in Applied Linguistics obtained from Delhi University was a degree equivalent to Master''s degree in Applied Linguistics. They have only stated that, according to the Delhi University''s regulations it was considered to be equivalent. Another crucial question is that, they have not stated that respondent No.9 was eligible to be appointed as a Reader in Applied Linguistics, but they have stated that he was fully qualified to be a Teacher in Applied Linguistics. Obviously these two questions have not been answered, because before the selection was made it appears from the record that this question was never decided at all.
As I have said earlier and as has been laid down by the Supreme Court in various judgments, this Court would not be in a position to ascertain whether the diploma in question was equivalent to Master''s degree or not, but at the same time equities would not come to the rescue of respondent No.9 if he lacks the basic educational qualification prescribed for the post. Therefore, on this ground the selection cannot be upheld. But, as has been pointed out earlier the Court is not in a position to ascertain and come to its own conclusions as to whether the respondent No.9 had the basic educational qualification or not. In any case the petitioner is not going to get any benefit if the respondent No.9''s selection is quashed. I am told that he has already become a Reader and is working in the University as a Reader. This course is being adopted in view of the fact that this Court would not be in a position to ascertain whether the qualifications possessed by respondent No.9 who admittedly had not the prescribed qualification but had the equivalent qualification are in fact equivalent or not in view of this Court''s incapacity to venture into such fields. A reference is made to the judgment of the Supreme Court reported in Rajendra Prasad Mathur Ors. Vs. Karnataka University and Another, , wherein a similar question was raised before the Court and the Court came to the conclusion that the equivalence has to be decided by the University concerned and it is not a matter on which the Court possesses any expertise. This view has been further upheld by the Supreme Court in Medical Council of India Vs. Silas Nelson and others, .
Therefore, I direct the Vice-Chancellor of the respondent-University to appoint a committee of atleast three experts who would examine whether the diplomas which the respondent No.9 possessed were in fact equivalent to Master''s degree or not. After the report is submitted by the Committee which should be obtained within a period of one month after its appointment by the Vice-Chancellor, the Vice-Chancellor should act on the basis of the recommendation made by the said committee. If the committee comes to the conclusion that the qualifications possessed by respondent No.9 were not equivalent to the M.A. in Applied Linguistics, the services of respondent No.9 shall be terminated. However, if they come to the conclusion that the qualifications possessed by respondent No.9 were equivalent to the Master''s degree in Applied Linguistics bis appointment shall stand.
Before departing with the case, I would like to give following direction to the respondent University authorities so that in future there are no such controversies :
(a) It should be specified in the advertising notice that the candidates should possess the qualification on the date when the applications are received.
(b) In case a qualification is laid down as eligibility for a post and there is other equivalent qualification to that qualification, that should be specified in the advertisement itself so that no person who has an equivalent qualification can be deprived of competing for me post and no person gets a benefit who has no basic qualification but even then claims that he had an equivalent qualification.
With these observations this petition is disposed.