Chakrapani Das And Ors vs Bhaskar Das And Ors

Akil Kureshi, CJ

[1] These appeals arise out of the common judgment of the learned Single Judge dated 15.12.2016 passed in Writ Petition (c) No.209 of 2015.

[2] Facts are as under:

Writ Appeal No.3 of 2017 is filed by original respondent No.5 who would hereinafter be referred to as the private respondent. Writ Appeal No.9 of 2017 is filed by the State Government and its authorities to challenge the same judgment. They would be referred to as official respondents. The original petitioners who are respondents in both the appeals and who would hereinafter be referred as the petitioners, had filed the said petition pointing out that the State Government under an advertisement No.9/2014 had notified various posts, including 10(ten) posts of Inspector, Motor Vehicles (Group-C Non-Gazette) under Transport Department of Government of Tripura, out of which 2(two) posts were reserved for Scheduled Caste candidates. Education and other qualifications prescribed in the said advertisement were as under:

"Educational and other qualifications:

Essentials:-1. Passed Madhyamik or equivalent examination of any recognized University/Board.

ii. Passed 3(three) years Diploma Course in Automobile Engineering/Mechanical Engineering from recognized Institution.

iii. Should have knowledge in M.V. Act, 1989.

iv. Should have knowledge in Bengali.

Desirable: Be a holder of Driving License for all types of Motor Vehicles."

These qualifications were in tune with the relevant Recruitment Rules. Both the petitioners belong to Scheduled Caste and possessed the educational and other qualifications prescribed under the Recruitment Rules and published in the said recruitment advertisement. They were holding Diploma in relevant subject. They applied for the post in question. The private respondents No.4 and 5 possessed degree in Mechanical Engineering. They had also applied for the same post reserved for the same category of candidates. Tripura Public Service Commission (for short, TPSC) subjected the candidates to written examination for screening purpose. The petitioners as well as the private respondents cleared such test. They are all called for oral interviews, which were held sometime in May, 2015. Upon completion of the selection process, the private respondents were selected and recommended for appointment. In due course they were also appointed. Respondent No.5 has been working on the said post since then. Respondent No.4 we were informed has left the job and is no longer interested in this litigation.

[3] The petitioners contended before the learned Single Judge that the educational qualification required for the post in question was three years of diploma in Automobile Engineering or Mechanical Engineering from a recognized institute. The private respondents did not possess this qualification. They were degree holders in Mechanical Engineering. Such qualification cannot substitute for the basic qualification of diploma prescribed under the rules.

[4] The official respondents had appeared before the learned Single Judge and resisted the petition. In an affidavit-in-reply dated 27.07.2016 filed by one Smt. Maitreyee Debnath, Under Secretary to the Govt. of Tripura, it was contended that basic qualification for lateral entry in the 2nd year of degree programme is that the applicant must possess diploma in Engineering Technology from any recognized institute with minimum 45% of marks. Further, the applicant must clear lateral entrance examination conducted by the Government from time to time. It was contended that diploma being the basic qualification for admission in 3rd semester of B.E degree course, B.E degree is considered higher qualification than diploma in the same branch. The deponent had produced several documents including the minutes of the meeting of Mechanical Engineering department, NIT, Agartala held on 28.06.2016.

[5] The learned Single Judge in the impugned judgment considered the rival submissions at length. The learned Judge referred to several judgments of the Supreme Court and came to the conclusion that the stand adopted by the official respondents was totally impermissible and not supported by law laid down by the Supreme Court. The learned Judge concluded that the Government instructions for holding the qualifications of the private respondents as sufficient for eligibility were dehors the statutory rules. In order to come to such a conclusion, the learned Judge minutely examined the materials produced by the petitioners mainly concerning various subjects taught in both the courses and the curriculum of such subjects. The learned Judge also perused the Government files leading to the decision of the Govt. authorities to hold that the private respondents were eligible for posts in question. Eventually the learned Judge by the impugned judgment set aside the appointments of the private respondents and directed the respondent No.3 i.e. Tripura Public Service Commission (TPSC, for short) to make fresh recommendations for appointment after excluding the private respondents and similar other candidates from consideration.

[6] Appearing for the Government Mr. Mangal Debbarma, learned Additional Govt. Advocate submitted that the private respondents were holding higher educational qualifications. The learned Single Judge committed an error in declaring the selections illegal. It is essential for the Government and the expert bodies such as Public Service Commission to judge the eligibility of the candidates. The learned Judge should not have undertaken the exercise of comparing the subjects and the curriculum of the two courses. Very fact that a diploma holder can seek admission into second semester of degree course after clearing examination would show that the degree is a higher qualification than the diploma in the same field. The Government had taken a conscious decision after examination of all aspects of the matter to hold that the private respondents were eligible.

[7] Learned counsel for the original respondent No.5 also made similar submissions. He relied on a recent decision of the Single Bench of this Court in case of Sri Pranab Majumder Vrs. The State of Tripura and others (W.P(c) No.668/2019) dated 03.12.2019 in which under similar circumstances the challenge of the petitioners to the eligibility of degree holders was rejected.

[8] On the other hand, learned counsel Sri Somik Deb appearing for the original petitioners supported the judgment of the learned Single Judge. He submitted that degree in engineering cannot be stated to be higher qualification than diploma in engineering since both operate in different fields, have different training approaches and are meant for different purposes. Even if it were to be believed that degree is a higher qualification than diploma, the eligibility of a candidate for a post in question must be judged on the basis of Recruitment Rules. When the Recruitment Rules do not recognize higher qualification as sufficient eligibility, the Government cannot act contrary to such rules. He further submitted that giving opportunity to the private respondents to compete for the post in question would amount to changing of the rules of the game once the game has begun. Large number of other similarly situated candidates may have been persuaded not to apply in face of clear Recruitment Rules. Counsel relied on several decisions in support of his contentions, as well brought to our notice certain decisions which take a different view. We will refer to all these decisions at a later stage.

[9] As noted, as per the Recruitment Rules as well as the advertisement inviting applications for selection for the posts in question, essential education qualifications were (i) passed Madhyamik or equivalent examination from any recognized university or board and (ii) passed three years diploma course in Automobile Engineering/Mechanical Engineering from recognized institution. Undisputedly, the private respondents did not hold the diploma in Automobile Engineering or Mechanical Engineering but were both degree holders in Mechanical Engineering. It was in this background, that the Government had considered their eligibility. From the affidavit-in-reply filed on behalf of official respondents and the decision of the learned Single Judge it would emerge that the consideration before the authorities was that diploma certificate provides a lateral entry into engineering degree course at the 3rd semester level provided the candidate has passed his diploma with a minimum prescribed percentage and also clears a specially conducted entrance examination by the State Government. Further, consideration was that the State authorities also took into account the prospectus published by Tripura University for under graduate courses of technical branches, which provided such lateral entry in the under graduate degree course. The authorities while considering the eligibility of the private respondents noted that in the previous such recruitment process also degree holders in engineering were declared eligible. After such consideration the authorities came to the conclusion that the private respondents were holding higher qualification than that prescribed in the Recruitment Rules and that such respondents and other similarly situated candidates may be held eligible.

[10] In our opinion, learned Single Judge committed an error in overruling such decision of the authorities. Basically, the question of eligibility, equivalence or hierarchy of educational qualifications should be best left to be judged by the authorities duly aided by the experts in the field. When a body such as Public Service Commission or the Education Department of the Government undertakes such exercise of deciding equivalence or whether a particular qualification can be considered higher than those prescribed in the rules, the Court would have extremely limited role to play. Judicial review of the decision of an expert body in the technical field is necessarily limited. When the official respondents on the basis of materials on record after mature consideration had come to the conclusion that the qualification of degree in engineering is higher than that of diploma in the same subject, such decision should be viewed with due respect. The Courts are not equipped to enter into such highly technical, specialized field as higher education and decide on the basis of limited material produced before it to overrule the decision of the expert body. In this context, the observations made by Supreme Court in case of Maharashtra Public Service Commission, Through its Secretary Vrs. Sandeep Shriram Warade and others; reported in (2019) 6 SCC 362 may be noted:

"9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being on a par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same."

[11] The question still remains whether by merely holding that the degree provides a higher qualification than diploma, the official respondents could have permitted the private respondents to compete for the post in question. A secondary question would be, as argued by the counsel for the original petitioners, would any such exercise breach the principle of changing the rules of the game once the game has begun.

[12] In case of State of Haryana and Another Vrs. Abdul Gaffar Khan and Another; reported in (2006) 11 SCC 153 the Supreme Court considered a case where the essential educational qualification was Unani Dispenser or Up-Vaidya from a recognized university or a institute. Some of the candidates had the qualification of Bachelor of Unani Medicine and Surgery from a recognized university. The Haryana Staff Selection Commission considered such candidates as eligible for the post in question. In this context, the Supreme Court held and observed as under:

"7. We have perused the order passed by the High Court. As rightly pointed out by the High Court and as per the Haryana Ayurvedic/Homeopathic and Unani Technical Group (C) Service Rules, 1997, they do not expressly exclude the degree in Unani Medicine and Surgery for the post of Unani Dispenser. Admittedly, the respective contesting respondents in these appeals possess the required qualifications from a recognized University/Institution or Board and are thus, in our opinion, eligible for appointment to the posts of Unani Dispenser. A close scrutiny of the advertisement issued does not anywhere stipulate the diploma as the required qualification. We, therefore, affirm the order passed by the High Court and direct the appellant-State of Haryana to appoint the respective respondents to the posts of Unani Dispenser within a period of one month from the date of receipt of the order from this Court or on production of the same by the respective respondents herein, whichever is earlier. The appeals are accordingly dismissed. There shall be no order as to costs."

[13] In case of Jyoti K. K. and others Vrs. Kerala Public Service Commission and Others; reported in (2010) 15 SCC 596 the Recruitment Rules provided for educational qualifications, it also provided that higher educational qualification would also be accepted. It was in this background the Supreme Court observed as under:

"7. It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant Rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for that post in order to attract that part of the Rule to the effect that such of those higher qualifications which presuppose the acquisition of the lower qualifications prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same Faculty, such qualifications can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far."

[14] In case of Manjit Singh and etc. Vrs. State of Punjab & Others; reported in (2010) LAB.I.C 2725 the Full Bench of Punjab and Haryana High Court came to the conclusion that the curriculum of B.P.Ed., B.P.E., D.P.Ed. includes the curriculum prescribed for C.P.Ed. in major Universities in the States of Punjab and Haryana and that higher educational qualifications being in the same subject and in line cannot be ignored and the candidates possessing higher qualification cannot be denied consideration for selection.

[15] We may now refer to the decisions cited by the counsel for the original petitioners.

In case of P. M. Latha and Another Vrs. State of Kerala and Others; reported in (2003) 3 SCC 541 the post in question was of Lower Primary/Upper Primary Teachers in Govt. Schools. The Recruitment Rules prescribed Trained Teachers' Certificate (TTC, for short) as essential qualification. Some of the candidates who did not possess such certificate but had acquired the qualification of B.Ed. and were not considered eligible, had approached the High Court. Learned Single Judge allowed the petition. The Division Bench was of the view that the candidates were not qualified for the post in question but still did not upset the directions of the learned Single Judge on an undertaking given by the State of Kerala that they would be suitably amending the rules of recruitment for providing avenues of recruitment to B.Ed. degree holders as teachers in Government schools. In such background, the Supreme Court reversed the decisions of the High Court making following observations.

"10. We find absolutely no force in the argument advanced by the respondents that B.Ed. qualification is a higher qualification than TTC and therefore, the B.Ed. candidates should be held to be eligible to compete for the post. On behalf of appellants, it is pointed out before us that Trained Teacher's Certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed. degree, the training imparted is to teach students of classes above primary. B.Ed. degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed. qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for post of primary teachers as only TTC and not B.Ed. Whether B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates, for the present vacancies advertised, as eligible."

[16] From the above judgment it can be seen that the Court did not hold that the B.Ed. qualification was higher than the qualification of TTC. It was observed that TTC is given to the teachers specially trained to teach small children in primary schools, whereas BEd. degree is awarded by imparting training to teach students of higher classes. It was, therefore, held that the BEd. degree holders were not eligible for the post in question.

[17] Similar observations were made under similar circumstances in case of Yogesh Kumar and Others Vrs. Govt. of NCT, Delhi and Others; reported in (2003) 3 SCC 548.

[18] Once again similar issue came up before the Supreme Court in case of Dilip Kumar Ghosh and others Vrs. Chairman and Others; reported in (2005) 7 SCC 567 where the qualification prescribed for teachers of primary schools were Junior Basic Training/Primary Teachers Training Certificate (JBT/PTTC, for short) whereas the candidates aspiring for appointment were holding B.Ed. degree, they were held ineligible. Such decision was upheld by the Supreme Court relying on the decision in case of P.M.Latha(supra). Following observations may be noted:

"13.******

(iii)To accept a proposition that a candidate who holds a B.Ed. Degree, that is, higher degree cannot be deprived appointment to the post of primary school teacher would negate the aims and objects of the Rules for the purpose for which it is framed.

(iv) These rules were framed primarily for recruitment of the teachers for primary schools and in that context the Rules were designed to give a credit to the candidates who are specifically trained to teach in primary schools. The idea behind the framing of these rules was that the junior basic training and primary teachers training certificate trained teachers should be appointed so that they can impart proper education to the child of tender age who requires an expert and tending hand."

[19] Once again, in case of State of Punjab and Others Vrs. Anita and Others; reported in (2015) 2 SCC 170 the posts in question were of teachers in privately managed recognized schools. Essential qualifications were JBT/ETT. The Supreme Court held that the qualification of B.Ed. and other qualifications such as MA, M.Sc., M.Com. etc. cannot be treated as higher qualifications with reference to the prescribed qualifications.

[20] In case of Zahoor Ahmad Rather and others Vrs. Sheikh Imtiyaz Ahmad and others; reported in (2019) 2 SCC 404 the question pertained to appointment of Technician. The qualification prescribed was Matriculation with ITI. Some of the diploma holders in Electronics & Communication Engineering, Electrical Engineering etc. had applied. It was noticed that at some district centers their interviews were conducted. The State Services Selection Board held a meeting and decided that only ITI is relevant for the trade in question and the rest of the candidates would not be eligible. It was in such background the Supreme Court held and observed as under:

"26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti K.K(2010)15 SCC 596 in the subsequent decision in Anita(2015) 2 SCC 170. The decision in Jyoti KK turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily pre-supposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The state as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in 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. The decision in Jyoti KK turned on a specific statutory rule under which the holding of a higher qualification could pre- suppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench of the High Court was justified in reversing the judgment of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision of the Division Bench."

[21] In case of Zonal Manager, Bank of India, Zonal Office, Kochi and others Vrs. Aarya K. Babu and Another; reported in (2019) 8 SCC 587 the post in question was Agricultural Field Officer (Scale-1). The qualifications prescribed were of graduate possessing degree in Agro Forestry. Some of the candidates had secured a four year degree in Forestry. The High Court had held such candidates to be eligible. It was in this background the Supreme Court considered whether the Court should be justified in undertaking the exercise of providing equivalence to another qualification so as to declare it to be equivalent to the qualification prescribed in the recruitment notification ignoring the fact that the employer who makes the recruitment had not considered such degree as equivalent. It was in this background, the Supreme Court observed that any such approach would amount to denial of opportunity to those who possess such qualification but had not applied. Following observations may be noted:

"12. Though we have taken note of the said contention we are unable to accept the same. We are of such opinion in view of the well established position that it is not for the Court to read into or assume and thereby include certain qualifications which have not been included in the notification by the employer. Further the rules as referred to by the learned counsel for the respondents is pointed out to be a rule for promotion of officers. That apart, even if the qualification prescribed in the advertisement was contrary to the qualification provided under the recruitment rules, it would have been open for the candidate concerned to challenge the notification alleging denial of opportunity. On the other hand, having taken note of the specific qualification prescribed in the notification it would not be open for a candidate to assume that the qualification possessed by such candidate is equivalent and thereby seek consideration for appointment nor will it even be open for the employer to change the requirements midstream during the ongoing selection process or accept any qualification other than the one notified since it would amount to denial of opportunity to those who possess the qualification but had not applied as it was not notified."

[22] Thus the decisions cited by the counsel for the original petitioners arose in different factual background. Most of the cases were where the employer itself had disqualified the candidates possessing qualifications different from those prescribed under the rules and advertised. In such background, the view of the Supreme Court was that the Court would not undertake the exercise of judging equivalence, particularly when the employer has come to the conclusion that the qualification other than one prescribed in the rules was cannot be equated. Certain decisions were rendered in the background of appointment to the post of primary school teachers where Teachers Training Certificate or similar such certificate course by whatever name called was seen as a specialized course meant for training a person for imparting education to young children or primary schools. A B.Ed. course which did not focus on this special requirement was considered neither higher nor equivalent. In the present case, the employer had come to the conclusion that the degree in engineering in the relevant field is a higher qualification than the diploma in the same subject and that holder of such degree would be eligible for selection. In the process, it was noticed that a diploma holder could seek a lateral entry into 3rd semester of degree course. Such decision should not have been rendered by the Court.

[23] In the result, appeals are allowed. The impugned judgment of the learned Single Judge is reversed. Pending application(s), if any, also stands disposed of.