:: 3 :: T.A No. 62/1117/2021 contained in Annexure-VI, viz-a-viz the communication issued by Vice Chancellor, the University of Kashmir vide

No. F-(VC-KU) 19 dated 28.03.2019 and to allow the

petitioners to appear for oral test/viva voce.

(d) Any other writ, order or direction which this Hon'ble Court may deem fit and in the circumstances of the case may also be passed in favour of the petitioners and against the respondents in the interest of equity."

2. Case of applicants is that respondent J&K Public Service Commission (PSC) issued Notification No. 10-PSC (DR-P) of 2017 dated 27.10.2017, on the indent of Higher Education Department, inviting application for the post of Assistant Professor (Geology) in the Higher Education Department possessing the following prescribed qualification:

". . . . in case of scheduled Caste/Scheduled Tribe/differently - abled (Physically and Visually differently abled) Categories/Ph.D. degree holders, who have obtained their Master's Degree prior to 19^th September 1991 or an equivalent grade in a point scale wherever grading system is followed at the Master's Degree level in the relevant subject from an Indian University, or an equivalent degree from an accredited foreign University."

3. It is the case of applicants that they applied for the said post having the qualification of Master's Degree in 'Applied Geology'. However, the PSC vide impugned order/notice dated 26.03.2019 (Annexure - I to the T.A.) rejected the application of applicants on the ground that they do not possess the requisite qualification as noted in the advertisement.

3

:: 4 :: T.A No. 62/1117/2021 4. It is further the case of applicants that their M.Sc degree in 'Applied Geology' is equivalent to M.Sc (Geology) which is apparent from the

communication dated 19.12.2017 addressed by Under Secretary to

Government High Education Department to PSC stating therein that

M.Sc degree in 'Applied Geology' is equivalent to M.Sc (Geology) as

informed by the University of Kashmir and asking the PSC to consider

the candidates having degree in Applied Geology for appointment to

the post of Assistant Professor in Geology.

5. The applicants filed this T.A with a prayer to direct the respondents to declare them as qualified, for the post of Assistant Professor (Geology) and select and appoint them as Assistant Professor (Geology). Applicants contends that the study is about the subject of Geology, and so, it cannot be said that they do not hold the requisite qualification. So, the applicants pray that the impugned order dated 26.03.2019 to the extent of rejection of their candidature be quashed and case of applicants be considered for selection/appointment to the advertised post of Assistant Professor in Geology.

4

:: 5 :: T.A No. 62/1117/2021 6. Mr. Amit Gupta, learned AAG for Respondent No. 1 has adopted the counter affidavit filed by the J&K Public Service Commission. The

respondents, on the one hand, opposing the T.A. say once the

recruitment rules stipulate a particular set of qualification for the post which finds mention in the advertisement notice, the question of

inserting another qualification does not arise. It is also pleaded that the M.Sc in applied Geology is not the same qualification as M.Sc in

Geology.

7. We have heard and considered the arguments of the learned counsel for applicants and respondents as well as learned AAG for respondent No. 1 and gone through the materials on record.

8. It is a settled position that it is the prerogative of the user department to stipulate the qualifications for the posts, in their establishment. Howsoever equivalent or similar, the other qualifications may appear, the concerned authority has its own purpose or objective in prescribing qualifications of a particular description, for the concerned post. Once the qualifications prescribed in the advertisement are treated as essential, there is no way to ignore them. A candidate would acquire

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:: 6 :: T.A No. 62/1117/2021 eligibility only on possessing a degree or qualification prescribed in the recruitment rules.

9. Any doubt that existed in this regard, stood resolved by the Hon'ble

Supreme Court in Zahoor Ahmad Rather vs Sheikh Imtiyaz Ahmad,(2019) 1 SCC(L&S) 353 by holding that:-

"22. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti KK in the subsequent decision in Anita (supra). 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."

10. Whereas in the case of Zonal Manager, Bank Of India, Zonal Office, Kochi Vs. Aarya K. Babu, (2019) 8 SCC 587, the Hon'ble Apex Court held that:-

"13. 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

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:: 7 :: T.A No. 62/1117/2021 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."

11. It was categorically held by their Lordships that it is the prerogative of the concerned department to prescribe the qualifications, as per, the recruitment policy and the Courts cannot enter the arena of equivalence. 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.

12. Learned counsel for applicants referred to letter dated 19.12.2017 addressed to Secretary, J&K Public Service Commission by Under Secretary to Government, High Education Department informing that

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:: 8 :: T.A No. 62/1117/2021 as per the University of Kashmir, the MSc in Applied Geology be considered equivalent to minimum qualification as have been

prescribed in the Advertisement notice and therefore since the

applicants possess the equivalent qualification, they are entitled to be considered in the selection process.

13. On the other hand, the respondents, opposing the T.A. say that once the recruitment rules stipulate a particular set of qualifications for the post, the question of inserting another qualification, higher or equivalent does not arise and prescribing the qualification criteria lies within the exclusive jurisdiction of the Administration and the Tribunal has very limited power to review the criteria laid down in the advertisement notice. And in any case, the Selecting body cannot go beyond the prescribed qualification as set by the indenting department and laid down in the advertisement notice. To do, otherwise would be discriminating against the persons who did not apply going by the advertisement notice that a particular educational qualification is required which is not possessed by them.

8

:: 9 :: T.A No. 62/1117/2021 14. Before dealing with the submission advanced by the learned counsel for the parties, it would be apt to note the settled law that it is not in the province of this Tribunal in exercise of its jurisdiction to go into and

prescribe the essential qualification for selection/appointment on a post. In the case of University of Mysore and Another vs. C.D. Govinda Rao.

AIR 1965 SC 491, it has been observed by Hon'ble Supreme Court that

normally it is wise and safe for the courts to leave the decision of

academic matters to experts, who are more familiar with the problems

they face than the courts generally can be. It is equally well settled

principle of law that it is the policy of the Government or the employer

to create a post or to prescribe the qualification for the post. The Court or any Tribunal is devoid of any power to give any such direction.

15. In the case of J. Ranga Swamy vs. Government of Andhra Pradesh and

others, reported in [(1990) 1 SCC 288, it has been held by the Supreme Court that it is not for the Court to consider the relevance of qualifications prescribed for various posts.

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:: 10 :: T.A No. 62/1117/2021 16. It is settled law that any decision of the academic body of the university or the indenting department/Government should be by a specific order

or resolution, duly published finding its mention in the recruitment

rules and the advertisement notice to give sufficient notice to the public

at large to apply and not specify its equivalence midway during the

selection process less it prejudices the persons who did not apply due to

non-publication of the eligible equivalent degree. In the present case,

there is nothing in the recruitment rules to show the standard of

equivalence has been declared by the indenting

department/Government, as such the PSC is bound to follow the

eligibility criteria given to it by the indenting department, unless the

statutory provide otherwise. We may refer to judgment dated

10.02.2020 in LPA No. 157/2019 titled Massrit Khatoom v/s State of

J&K passed by the Hon'ble High Court wherein it was held that:-

"12. Thus, the qualification prescribed in the Rules for the post of

Lecturer (10+2) is clearly "Master's Degree in relevant subject".

The rule makes no reference to equivalence. Therefore, only a person holding this qualification is rendered eligible for selection to the post. In this background, no discretion is left, either to the respondents or this Court, to consider any other degree possessed by a candidate as being equivalent to the "Master's Degree in the relevant subject".

13. It is undisputed that the relevant subject in the instant case was Mathematics. It is not open to this Court to hold that a Master's

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:: 11 :: T.A No. 62/1117/2021 Degree in Applied Mathematics is a degree equivalent to a Master's Degree in Mathematics, the relevant subject and thereby to hold the appellant eligible for selection and appointment to the post in question.

16. It is submitted before us by Mr. Gupta that the learned Single Judge had passed an interim order dated 22nd February, 2019 requiring the Public Service Commission to determine as to whether a Master's Degree in Applied Mathematics was the same as the Degree in Mathematics as required by the Advertisement Notice dated 19th March, 2016. This submission is being noted only for the purpose of rejection. The selection pursuant to the Advertisement Notice dated 19th March, 2016 has to be considered in terms of the then extant Jammu and Kashmir Education (Gazetted) Services Recruitment Rules, 1992. Any amendment to the Rules, if effected after issuance of the Advertisement, would have to apply prospectively."

17. It be noted that the advertisement was issued on 27.10.2017 and the correspondence of the Government with the PSC is dated 19.12.2017. So, by way of Advertisement notice, the detail of the qualification to be possessed by an intending candidate was mentioned but it was nowhere mentioned in the advertisement that persons holding such and such equivalent qualification are also entitled to apply.

18. It is fairly well settled that once an employer prescribes a set of qualifications for selection and appointment to a particular post in the advertisement notice, the question of permitting any candidate, who

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:: 12 :: T.A No. 62/1117/2021 admittedly does not possess the essential qualification, to apply, does not arise. Another aspect is that in case the condition is relaxed in

favour of the applicants, it would lead to an anomaly namely the

relaxation cannot be in respect of the applicants alone. If at all, it is to be granted, it should be also in favour of those who, though similarly

situated as the applicants herein, did not apply, being convinced that

they are not qualified. The relief, if granted on the lines prayed for by the applicants, must be extended to those other persons also and if the relief as prayed for is granted, the entire exercise has to be redone. That would lead to disastrous consequences, in flagrant violation of a

statutory requirement.

19. We refer to the observations of the Hon'ble Apex Court in Yogesh

Kumar Vs. Government of NTC, Delhi, (2003) 3 SCC 548, which also run counter to the case projected by the applicants. It was held that:-

"8. This last argument advanced also does not impress us at all. Recruitment to Public Services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the Rules allows entry to ineligible persons and deprives many others who could have competed for the post. Merely because in the past some deviation and departure was made in considering the B.Ed. candidates and we are told that was so done because of the paucity of TTC candidates, we cannot allow a patent illegality to continue."

12

:: 13 :: T.A No. 62/1117/2021 20. We also refer to the case of Mohd. Sohrab Khan vs. Aligarh Muslim University &Ors. (2009) 4 SCC 555 wherein it was held as hereunder:

"24. According to us, the Selection Committee as also the

University changed the rule in the midstream which was not permissible. The University can always have a person as a Lecturer in a particular discipline that it desires to have, but the same must be specifically stated in the advertisement itself, so that there is no confusion and all persons who could be intending candidates, should know as to what is the subject which the person is required to teach and what essential qualification the person must possess to be suitable for making application for filling up the said post.

25.We are not disputing the fact that in the matter of selection of candidates, opinion of the Selection Committee should be final, but at the same time, the Selection Committee cannot act arbitrarily and cannot change the criteria/qualification in the selection process during its midstream. Merajuddin Ahmad did not possess a degree in Pure Chemistry and therefore, it was rightly held by the High Court that he did not possess the minimum qualification required for filling up the post of Lecturer in Chemistry, for Pure Chemistry and Industrial Chemistry are two different subjects.

26. The advertisement which was issued for filling up the post of Lecturer in Chemistry could not have been filled up by a person belonging to the subject of Industrial Chemistry when the same having been specifically not mentioned in the advertisement that a Master's degree-holder in the said subject would also be suitable for being considered. There could have been intending candidates who would have applied for becoming candidate as against the said advertised post, had they known and were informed through advertisement that Industrial Chemistry is also one of the qualifications for filling up the said post.

27. The Selection Committee during the stage of selection, which is midway could not have changed the essential qualification laid

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:: 14 :: T.A No. 62/1117/2021 down in the advertisement and at that stage held that a Master's degree-holder in Industrial Chemistry would be better suited for

manning the said post without there being any specific

advertisement in that regard. The very fact that the University is now manning the said post by having a person from the discipline

of Pure Chemistry also leads to the conclusion that the said post at that stage when it was advertised was meant to be filled up by a

person belonging to Pure Chemistry stream. If the above decision

is kept in perspective it is clear that while examining the

correctness of the action of the employer what would be

sacrosanct will be the qualification criteria published in the

Notification, since if any change made to the qualification criteria midstream is accepted by the Court so as to benefit only the

petitioners before it, without making it open to all the qualified persons, it would amount to causing injustice to the others who

possess such qualification but had not applied being honest to

themselves as knowingly they did not possess the qualification

sought for in the Notification though they otherwise held another

degree. Therefore, if there is any change in qualification / criteria after the notification is issued but before the completion of the

selection process and the employer / recruiting agency seeks to

adopt the change it will be incumbent on the employer to issue a

corrigendum incorporating the changes to the notification and

invite applications from those qualified as per the changed criteria and consider the same along with the applications received in

response to the initial notification. The same principle will hold good when a consideration is made by the Court."

21. Reference may be made to the case of Aarya K. Babu (supra) wherein it was held by the Hon'ble Apex Court that:

"8. Though extensive arguments were advanced the issue lies in a very narrow compass. The short question for consideration is as to whether the courts would 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 by taking note of the extraneous factors though such

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:: 15 :: T.A No. 62/1117/2021 equivalence of qualification is not declared by the employer who makes the recruitment. The second aspect would be as to whether

any particular educational qualification made eligible subsequent

to issue of recruitment Notification can be considered

retrospectively in respect of the recruitment process which has

commenced prior to such an additional educational qualification

being treated as eligible and the process of recruitment in respect of such notification is already concluded. In that background an

examination of these aspects is necessary in the instant case."

"11. The issue however is, when the said qualification was not

depicted in the relevant recruitment Notification which is the subject matter and in that circumstance if recruitment has been wrongly made of the persons who did not possess the qualification which was notified but had still applied and the appointment made on that basis is sustained, would it not be to the disadvantage of other persons who had possessed the same qualification of B.Sc. (Forestry) degree but had not applied since the Notification did not depict the said qualification but had indicated some other qualification. In that regard, at the outset it is necessary to take note that the decision of the High Court of Judicature at Bombay, Nagpur Bench in the case of Kishor Deoramji Gahane (supra) relied upon by the appellants herein before the High Court in fact had addressed this issue wherein it was held that the corrigendum issued subsequent to the advertisement would not be beneficial, since the petitioner therein did not possess the qualification notified in recruitment Notification."

"13. 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,

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:: 16 :: T.A No. 62/1117/2021 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."

"15. If in that background the instant facts are taken note, it would disclose that the Notification depicting the qualification required as Degree in B.Sc. (Agro-Forestry) was issued on 17.11.2014 and the process of selection had come to an end when the private respondents herein were issued the appointment letters dated 17.09.2015 and 29.05.2015 respectively. Admittedly as on such date the Notification required the candidates possessing B.Sc. (Agro-Forestry) but the private respondents were graduates in B.Sc. (Forestry) and as such were not qualified to respond. The change was made subsequent thereto by the general corrigendum dated 16.01.2016 by including the qualification of B.Sc. (Forestry), which would be effective from that day by providing opportunity to all those holding that qualification. Therefore, in such cases the change of qualification whereby the qualification of the private respondents gets included subsequently cannot ensure to their benefit alone when several others who could have applied were prevented from doing so."

"17. In that backdrop, though in the instant facts presently the qualification possessed by the private respondents is decided to be included for the purpose of recruitment to the post of Agricultural Field Officer, as on the date of the recruitment Notification the same was not included therein, which cannot be substituted by the Court with retrospective effect for the reasons stated above…"

22. Looking to the facts and circumstances of the case, the action of the respondent Public Service Commission in not accepting the candidature

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:: 17 :: T.A No. 62/1117/2021 of the applicants on the ground that they do not possess the requisite qualification of Master's Degree level in Geology, prescribed, as per, the recruitment rules/indent and which finds mention in the

advertisement notice cannot be faulted with. In any case, the law settled by the Hon'ble Apex Court as discussed above settles the legal position that it is not for the Tribunal to go into the question of equivalence of degree etc (Read with advantage judgment dated 24.11.2021 of

Hon'ble Apex Court in Civil Appeal No. 7031 Of 2021 titled Devender

Bhaskar v/s State of Haryana. Source : www.sci.gov.in)

23. We do not find any merit in the TA. The same is accordingly

dismissed. There shall be no order as to costs.

(ANAND MATHUR) (RAKESH SAGAR JAIN)

MEMBER (A) MEMBER (J)

Arun/-

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