GOVT OF NCT DELHI AND ORS v. ARUN SINGH BHATTI

10. The RRs as well as the advertisement prescribed four alternative qualifications, for candidates who were aspiring for appointment as TGT (Computer Science). They were

(i) BCA from a recognized university, or

(ii) B.E./B.Tech (Computer Science/Information

(iii) graduation in Computer Science from a recognized

(iv) graduation in any subject and ‘A’ level qualifications from DOEACC, Ministry of Information and Technology. Possession of any one of the aforesaid four qualifications, would render a candidate eligible for consideration for the post of TGT (Computer Science).

11. The respondent was the holder of a degree of BSc in Information Technology. He, therefore, did not possess a BCA, or a B.E./B. Tech in Computer Science/Information Technology or an ‘A’ level qualification from DOEACC. It is clear, therefore, that the respondent did not possess any of the four alternative qualifications prescribed in the advertisement.

12. The respondent was, instead, a BSc in Information Technology.

13. The Tribunal has proceeded on the principle of equivalence, though it is not very clear, from the impugned order, as to the prescribed qualification to which the Tribunal has held the respondent’s BSc degree in Information Technology to be equivalent. It appears that the Tribunal has treated the BSc qualification in Information Technology, possessed by the respondent, as equivalent to the qualification of graduation in Computer Science, which is one of the four qualifications prescribed in the RRs and the advertisement for the post of TGT (Computer Science).

14. Such an exercise, in our considered opinion, is completely proscribed by law. No court can qualitatively compare degrees and return findings of equivalence. It is a matter of common knowledge that, even for the same principal subject, different degree courses may follow different curricula. For example, the curriculum taught for a BA (Hons) degree in Mathematics would not be the same as the curriculum followed for a BSc (Hons) degree in Mathematics.

15. Even if, for two different degree qualifications in the same subject, the subjects taught are the same, the content and curricula of the individual subjects may, depending on the ultimate degree which is to be awarded, be different. It is only if the entire content of the subjects taught for obtaining two qualifications is meticulously analysed and found to be identical, and the degree of knowledge imparted to the students undertaking the courses for obtaining the said qualifications is also found to be the same, that a conclusion of equivalence may be drawn.

16. Such an exercise, however, cannot be carried out by a Court or a Tribunal. There are institutions and organisations which are competent to return findings of equivalence, such as the University Grants Commission and the All India Council of Technical Education amongst others. Before certifying one course as equivalent to another, these institutions are expected to meticulously scan the content of the courses concerned. Indeed, the AICTE, in its protocol, envisages several considerations being factored in, before one course is certified as equivalent to another. It is not possible, or permissible, for a Court, to merely enlist the subjects taught in two courses and arrive at a finding that the courses are equivalent.

17. That, however, is precisely what the Tribunal has done in the present case.

18. There is an another, and even more empirical reason why the impugned judgment of the Tribunal cannot sustain. The Tribunal has, in holding as it does, effectively re-written the eligibility clause in the RRs and the advertisement by adding, to the qualifications prescribed therein, the qualification of BSc in Computer Science. It goes without saying that a Court cannot treat a candidate as qualified for any recruitment examination by reading, into the prescribed qualification for recruitment, a qualification which does not find place therein.

19. There are several judicial pronouncements on this issue. For the purpose of this decision, it is only necessary to cite a few of the more recent judgments on the point.

20. Zonal Manager, Bank of India v Aarya K. Babu[7] 20.[1] The Supreme Court was concerned with recruitment to the post of Agricultural Field Officer (Scale-1)8 in the Bank of India. Aarya K. Babu[9], the respondent before the Supreme Court, applied for the post. He was provisionally selected and was allotted to the Bank to the concerned branch of the Bank. Subsequently, however, his selection was cancelled on the ground that he did not possess the qualification prescribed in the notification inviting applications for appointment to

“AFO”, hereinafter “Babu”, hereinafter the post of AFO. 20.[2] The controversy revolved around the prescribed qualification of a degree in Agro-Forestry. Babu possessed a four-year degree in Forestry. The Single Judge of the High Court of Kerala, who adjudicated the dispute in the first instance, held that no four-year qualification of Agro-Forestry was provided in India and relied on information furnished by the Indian Council of Agricultural Research10, which included “Forestry” in the definition of “Agriculture”. The judgment of the Single Judge also noted that the Ministry of Agriculture and Farmers Welfare and the Ministry of Finance had taken note of the error in the qualifications prescribed in the advertisement, as no four-year course in Agro-Forestry is imparted in India, and that the subjects in the ICAR approved syllabus for BSc in Forestry could be considered as a qualification for appointment to the post of AFO in Banks. The Single Judge, therefore, held that the cancellation of Babu’s candidature was incorrect and directed that he be taken back into service. 20.[3] The Division Bench of the High Court, in writ appeal, upheld the decision of the Single Judge. 20.[4] The Bank of India appealed to the Supreme Court. 20.[5] In para 7 of the report, the Supreme Court identified two issues as arising for consideration before it, of which only the first need “ICAR”, hereinafter concern us. The first issue was identified as “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 be taking note of the extraneous factors though such equivalence of qualification is not declared by the employer who makes the recruitment.” 20.[6] It was noted that the qualification prescribed in the notification inviting applications for the post of AFO were as under: “4-year degree (graduation) in Agriculture/Horticulture/Animal Husbandry/Veterinary Science/Dairy Science/Agri Engineering/Fishery Science/Pisciculture/Agri Marketing & Cooperation/Co-operation & Banking/Agro-Forestry.” 20.[7] The Supreme Court identified, in para 10 of the report, an important consideration which had to be borne in mind in such cases, while returning findings of equivalence, thus:

20.[8] Extrapolating this to the facts on hand in the present case, one of the issues which arises for consideration is whether, if the Court, or the Tribunal, were to hold that a BSc degree in Information Technology was sufficient for recruitment as TGT (Computer Science), it would not operate to the prejudice of several other candidates, who may also be holding the degree of BSc in Information Technology, but who did not apply, as the prescribed qualifications in the advertisement did not include the said qualification. 20.[9] It was emphatically contended, before the Supreme Court, that, as there was no institution in India imparting a four year degree of BSc in Agro-Forestry, the High Court was justified in treating candidate possessing a four year degree of BSc in Forestry as eligible for appointment to the post of AFO. The Supreme Court rejected the contention in the following paragraph from the judgment:

20.10 Interestingly, in the aforesaid passages, the Supreme Court has held – though this aspect is not of particular significance for the controversy at hand – that, if there is a difference in the qualifications prescribed for a post in the advertisement, and in the applicable RRs, the qualifications prescribed in the advertisement would prevail and that, if a candidate felt otherwise, he would have had to challenge the advertisement. However, we may note that, in a more recent and later decision of a Bench of equal strength of the Supreme Court of two learned Judges, it has been held in ESIC Corpn. v UOI11 that “it is a settled principle of service jurisprudence that in the events of a conflict between a statement in an advertisement and service regulations, the latter shall prevail.”

20.11 In the present case, however, as noted, this controversy does not arise as the qualifications prescribed in the RRs and the advertisement are identical.

20.12 However, the afore-extracted para 12 from Aarya K Babu clearly holds that a candidate is bound by the qualifications as prescribed in the advertisement and cannot presume that the qualification held by him is sufficient, even though it is not one of the prescribed qualifications, by assuming equivalence.

20.13 Further, in paras 16 and 17 of the report, the Supreme Court has ruled as under:

Mohd. Shujat Ali v Union of India12 wherein it is held that the question in regard to equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications and where the decision of the Government is based on the recommendation of an expert body which possesses the requisite knowledge, skill and expertise for adequately discharging such a function, the Court, uninformed of relevant data and unaided by the technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government.

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. Therefore, in the said circumstance, in the present facts, the High Court was not justified in its conclusion. We, however, make it clear that though we have referred to the legal position and applied the same to the case of the parties who are before us, if in the case of similar recruitment, the employers themselves have permitted the equivalence and have continued such of those officers recruited, this decision shall not be applied to initiate action against such officers at this distant point of time. Subject to the above, the orders passed by the High Court of Kerala which are impugned herein are set aside.”

21. Unnikrishnan CV v UOI13 21.[1] This case involved promotion to the post of Superintendent BR Grade-I and Assistant Engineer14 in the General Reserve Engineer Force15. 21.[2] Admittedly, promotion to the said grade was governed by the General Reserve Engineer Force Group C and Group D Recruitment

“AE”, hereinafter Rules, 198216. Unnikrishnan and other appellants before the Supreme Court, were denied promotion to Grade-I and the post of AE on the ground that they did not possess the prescribed academic qualifications for promotion. The prescribed qualification was “Diploma in Civil Engineering”, whereas Unnikrishnan possessed a “Diploma in Draughtsman Estimating and Design”. The challenge, by Unnikrishnan, to the rejection of his case for promotion to Grade-I and AE having been dismissed by the High Court, Unnikrishnan appealed to the Supreme Court. 21.[3] The qualification prescribed in the GREF Rules, for promotion to Grade-I and AE, read thus: “Promotion Superintendent, Buildings and Roads, Grade II with recognized Diploma in Civil Engineering with 5 years regular service in the grade in General Reserve Force. Deputations/Transfer: Officers holding analogous/equivalent posts under the Central/State Governments or posts in the scale of Rs. 425-700 or equivalent with 3 years regular service in the grade and possessing the qualification prescribed in column 7. (Period of deputation ordinarily not exceeding 3 years). 21.[4] The Supreme Court categorically rejected the stand of Unnikrishnan and other appellants before it that the qualification of Diploma in Draughtsman Estimating and Design had necessarily to be treated as equivalent to the course of Diploma in Civil Engineering. It was also held that courts could not return any finding of equivalence between educational qualifications, as such an exercise has to be left to institutions which are competent to undertake it. Paras 13 to 16 of “GREF”, hereinafter “GREF Rules”, hereinafter Unnikrishnan may be reproduced thus: “13. In this background, the qualification as prescribed in column No. 11 of GREF Rules, 1982 when perused, would indicate that candidate who is seeking promotion to the post of Superintendent BR Grade-I has to possess “Diploma in Civil Engineering” with 5 years regular service in the grade of General Reserve Engineering Force. Whereas appellants are possessing Diploma in Draughtsman Estimating and Design (DED), which fact is not seriously disputed by them. Mr. Tapas Das, learned counsel appearing for the appellants has fairly conceded before this Court that an erroneous proposition was put forth before the High Court, namely, it was contended that Diploma is equivalent to a Degree and as such negating said contention, the High Court though justified its conclusion had erred in ignoring the consistent stand that had been taken by the Appellants, namely, Diploma in DED possessed by them is that of 2 years course and though column 11 prescribes Diploma in Civil Engineering for being promoted as Superintendent BR-Grade-I is to be treated as equivalent and this aspect was required to be considered by the High Court is an argument which looks attractive at first blush. However, on a careful perusal of the extant Rules as applicable for promotion to the post of Superintendent BR Grade-II, said contention has to be necessarily rejected for reasons more than one. Firstly, before the High Court appellants attempted to justify their claim contending “Diploma” is equivalent to a “Degree” and as such being entitled for promotion which has been negatived by the High Court and rightly so. Secondly, appellants tried to justify their claim contending rule as applicable for direct recruitment would be applicable for recruitment by promotion, which has not been accepted by the High Court. In so far as the contention regarding qualification for promotion, the rule itself is explicit and clear, namely, it prescribes for promotion to Superintendent BR Grade-I only, those candidates possessing Diploma in Civil Engineering with 5 years regular service in the grade in General Reserve Engineering Force would be eligible. No doubt, said rule is silent with regard to Diploma in Civil Engineering being either 3 years or otherwise. It is an undisputed fact that appellants possess ‘Diploma in DED’ and not ‘Diploma in Civil Engineering’. It is trite law that courts would not prescribe the qualification and/or declare the equivalency of a course. Until and unless rule itself prescribes the equivalency namely, different courses being treated alike, the courts would not supplement its views or substitute its views to that of expert bodies.

14. In Guru Nanak Dev University v Sanjay Kumar Katwal17 this Court has reiterated 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 a specific order or resolution, duly published. Dealing specifically with whether a distance education course was equivalent to the degree of MA (English) of the appellant university therein, the Court held that no material had been produced before it to show that the distance education course had been recognized as such.

15. In Zahoor Ahmad Rather v Sheikh Imtiyaz Ahmad18, it was held that the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various qualifications, etc. Judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as recruiting authority, to determine. (Emphasis supplied)

16. The diploma courses offered by College of Military Engineering, Pune, (CME) has been recognized as a course for recruitment to the post under the Central Government vide notification dated 01.02.2001, issued by Ministry of Human Resource Development (Annexure P-8). Said notification does not indicate diploma courses specified therein which are recognized by the Government of India are to be treated as equivalent. No material has been placed on record by the appellants to demonstrate that Diploma in DED is equivalent to Diploma in Civil Engineering.”

22. Shifana PS v State of Kerala19 22.[1] Perhaps the most recent decision on the point is the judgment of another bench of two learned Judges of the Supreme Court in Shifana.

The case dealt with recruitment to the post of High School Assistant20 (Physical Science), for which applications were invited by the Kerala Public Service Commission21. The qualifying criteria, as per the advertisement were as under: “A degree in the subject concerned and BEd/BT conferred or recognised by the Universities in Kerala. (Concerned subjects are specified in Note 3 below) ***** (3) Applicant should have taken Physics/Chemistry/Home Science as main subject for graduation. Degree in Geology (Main) with Physics and Chemistry as subsidiary subjects and BEd Degree (Physical/Science) can also be considered as an alternative qualification for the post [GO(MS) No. 195/96/G.Edn. dated 22-7-1996].” 22.[2] Shifana, the appellant before the Supreme Court, possessed the qualifications of B Sc (Polymer Chemistry) and a B Ed (Physical Science). She appeared in the written test and cleared the examination She was, thereafter, directed by the KPSC to produce a certificate certifying that the degree of BSc (Polymer Chemistry) held by her was equivalent to the degree of BSc (Chemistry). This was obviously because one of the essential qualifications for the post of HSA was Physics/Chemistry/Home Science as the main subject for graduation. 22.[3] As Shifana was unable to provide the necessary certificate, she was not selected for the post of HSA. 22.[4] Aggrieved thereby, Shifana approached the Kerala “HSA”, hereinafter “KPSC”, hereinafter Administrative Tribunal22. The KAT rejected Shifana’s application. Against the rejection, Shifana petitioned the High Court of Kerala, which also dismissed her case. She, thereafter, appealed to the Supreme Court. The Supreme Court did not accept Shifana’s contention that the degree of B Sc (Polymer Chemistry) was entitled to be treated as equivalent to a degree of B Sc (Chemistry). Reliance was placed, in rejecting Shifana’s contention, on the earlier decisions in Zahoor Ahmad Rather and Unnikrishnan. The Supreme Court also rejected Shifana’s reliance on a certificate issued by the University of Calicut, certifying that B Sc (Polymer Chemistry) course of the Calicut University was recognised as equivalent to its B Sc (Chemistry) course. The findings of the Supreme Court as contained in paras 12 to 16 of the report may be reproduced thus:

“KAT”, hereinafter 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.

15. The fervent plea advanced on behalf of the appellant that the University of Calicut had issued a certificate dated 10-10-2011 verifying that BSc (Polymer Chemistry) course of the said University is recognised as equivalent to its BSc (Chemistry) course is also not tenable in light of the observations made by this Court in Unnikrishnan CV. In view of the settled principles of law flowing from the above precedents, we are of the firm view that the appellant herein was not qualified for the post advertised vide Notification dated 30-4-2008.

16. As a result, we find no justifiable reason so as to interfere with the judgment dated 16-10-2012 rendered by the High Court.” 22.[5] The law, therefore, is clear on the issue that courts cannot return findings of equivalence or, based on such findings, treat qualifications, other than those stipulated in the concerned advertisements or applicable rules, as sufficient for recruitment to any post or service.

23. The decision in Nisha 23.[1] Insofar as the judgment of the Division Bench of this Court in Nisha, on which the Tribunal has placed reliance, is concerned, it is obvious that we cannot follow the said decision in preference to the pronouncements by the Supreme Court, which we have already cited supra. 23.[2] A reading of para 28 of the decision in Nisha, as reproduced in para 5.[4] of the impugned judgment of the Tribunal, reveals that this Court was concerned, in the said case, with equivalence between the qualifications (i) B Tech Information Technology and B Tech Computer Science, (ii) B Tech Instrumentation and Control and B Tech Electronic and Instrumentation, and (iii) B Tech Electrical and Electronics and B Tech Electrical. 23.[3] Insofar as the first two pairs of qualifications were concerned, i.e., B Tech Information Technology vis-à-vis B Tech Computer Science and B Tech Instrumentation and Control vis-à-vis B Tech Electronic and Instrumentation, the AICTE experts had already opined that the qualifications were equivalent. To that extent, therefore, the decision in Nisha may by correct. However, the further finding that, though the expert panel of the AICTE had opined that the qualifications of B Tech Electrical and Electronics and B Tech Electrical were not equivalent, the court “found equivalence” may not constitute a binding precedent, as it would amount to the court returning a finding of equivalence between educational qualifications, contrary to the view of experts, which is ex facie impermissible. 23.[4] Nisha further relies in para 29, on the judgment of the Supreme Court in Mohammed Shujat Ali. This reliance, too, may be difficult to accept, especially as to Supreme Court, in para 16 of the report in Aarya K. Babu, has itself relied on the decision in Mohammed Shujat Ali as proscribing courts from interfering with the decision of governmental authorities or experts appointed by the government in the matter of equivalence between educational qualification.

24. Issue arising wrongly identified by the Tribunal 24.[1] Before concluding with this decision, it also merits mention that the impugned judgment of the Tribunal, in para 5.[1] erroneously identifies the issue which arose for consideration before it. The Tribunal observes that the OAs before it involved “a limited issue as to whether the ‘Degree in Information Technology’ is to be considered a degree akin to Computer Science, if not strictly in terms of equivalence as defined in RRs at least in terms of an identical syllabi and academic subjects”.

25. No such issue, in our considered opinion, arose before the Tribunal, for the simple reason that the prescribed educational qualifications for the post of TGT (Computer Science), in the advertisement and the applicable RRs, did not include qualifications which were akin to graduation in Computer Science. What was required was a graduation in Computer Science, plain and simple, and not a degree akin to the said graduation. In fact, we feel that the findings of the Tribunal fell into error thereafter primarily because it proceeded on this fundamentally erroneous understanding of the scope of the issue in controversy before it. Conclusion

26. In view of the judgment of the Supreme Court cited supra, it is clear that the Tribunal was not within its competence to declare the qualifications held by the respondent to be equivalent to the prescribed qualification as per the advertisement. It is not in dispute that the respondent does not possess any of the essential qualifications mentioned in the advertisement. There is no provision in the advertisement for treating, as qualified, a candidate having any equivalent qualification. Moreover, we find that the Tribunal had, in fact, framed the very issue which arose before it for consideration erroneously in para 5.[1] of the impugned judgment.

27. For the aforesaid reasons, we are unable to sustain the judgment of the Tribunal. The impugned order is accordingly quashed and set aside. The OA filed by the respondent before the Tribunal stands dismissed.

28. The writ petition is allowed accordingly.

C. HARI SHANKAR, J.