Posted On by &filed under High Court, Patna High Court.


Patna High Court
Satyendra Singh And Ors. vs Sanjay Kumar And Ors. on 18 October, 2000
Equivalent citations: 2000 (3) BLJR 2125
Bench: N Rai, D Choudhary


JUDGMENT

Nagendra Rai and D.P.S. Choudhary, JJ.

1. The intervenors-respondents are the appellants. They filed the present appeal against the order dated 30.5.2000 passed in CWJC No. 4224 of 1999 by a learned Single Judge of this Court by which he has held that the Writ petitioners-respondent No. 1 possessed the requisite qualification for the post of District Fishery Officer or Fisheries Extension Officer and accordingly, directed to publish his result on the basis of interview held in pursuance of an interim order of this Court. Respondent No. 1 filed a Writ application on 4.5.1999 for issuance of an appropriate Writ to the respondent-State to include the Degree of M.Sc. (Fisheries Management) (hereinafter referred to as the FM) granted by the Central Institute of Fisheries Education (hereinafter referred to as the CIFE) as one of the requisite qualifications for the post of District Fishery Officer or Fisheries Extension Officer in the State of Bihar and for a further direction to the State and the Bihar Public Service Commission (hereinafter referred to as the Commission) to consider him as an eligible candidate for the said post and issue him interview letter pursuant to his application against advertisement No. 85 of 1998 published in the local daily newspaper on 21.6.1998 by the Commission.

2. The facts which are not in. dispute are that the Governor of Bihar has framed rules known as Animal Husbandry and Fisheries (Fisheries) Service Recruitment Rules, 1993 (hereinafter referred to as the Recruitment Rules) which was published in the Bihar Gazette on 14.1.1993. In terms of the said Recruitment Rules, the requisite educational and other qualifications for the post of District Fishery Officer/Fisheries Extension Officer are as follows.

B.Sc. (Zoology) with certificate of two years Diploma in Fisheries Science course from CIFE, Bombay or Bachelor of Fisheries Science from any recognised University. (B.F.Sc.)

3. In 1993, the Secretary, Animal Husbandry and Fisheries Department sent requisition to the Commission for filling up 33 posts of the Fisheries Extension Officer by direct recruitment. Thereafter, the Commission issued an advertisement prescribing the qualifications as prescribed in the rules and made selection. The said selection of the candidates was challenged before this Court in a batch of cases including CWJC No. 7198 of 1994 primarily on the ground that the appointment on the basis of interview only which was a mode prescribed in the said Rule, was arbitrary. One of the points raised in the said Writ applications was also that the two candidates having no requisite qualification prescribed in the recruitment rules, were selected and their appointment was impermissible in law. This Court dismissed the Writ applications and the said Judgment is reported in 1995 (1) PLJR 789 Nutan and Ors. v. The State of Bihar and Ors. It upheld the entire selection process and upheld the appointment of two persons who have Degree of M.Sc. in Inland Fisheries Administration and Management (hereinafter referred to as the IFAM) from CIFE primarily on the ground that the State Government has treated the aforesaid qualification as equivalent to the aforesaid qualification prescribed in the recruitment rules.

4. In the year 1998, the State Government made requisition to the Commission for filling up 15 posts of Fisheries Extension Officer. 13 posts were reserved and two posts were available to the general candidates. The Commission thereafter issued an advertisement on.21.6.1998 being Advertisement No. 85 of 1998 in the local daily newspaper for filling the aforesaid posts and prescribed the following qualification.

B.Sc. (Zoology) with two years Diploma Course in Fisheries Science or M.Sc. in IFAM from CIFE or Bachelor in Fisheries Science Degree from any recognised University.

It is to be stated here that the qualification of M.Sc. in IFAM which was treated as equivalent to two years Diploma course in Fishery Science was included in the advertisement by the Commission though not mentioned in the recruitment rules in pursuance of an earlier decision of the State Government taken in the year 1993 to treat the aforesaid qualification as equivalent to two years Diploma in Fisheries Science. The respondent No. 1 though did not possess any of the qualifications prescribed in the advertisement, but applied for the post. According to his assertion, he is B.Sc. with Zoology, as one of the subjects, and has two years Degree course in M.Sc. (FM) from CIFE. He completed the aforesaid course of M.Sc. (FM) from CIFE, Bombay in the Session 1993-95. The assertion of respondent No. 1 is that the M.Sc. (IFAM) and M.Sc. (FM) are the Degree awarded by the aforesaid CIEF which is deemed University under Section 3 of the UGC Act, 1956 and the said Degree has been recognised by the Government of India for the purpose of recruitment to post and service in the Central Government and they are equivalent to Diploma in Fisheries Science offered by the said institute. Thus, though the M.Sc, (FM) is not included in the recruitment rule, but that is equivalent to M.Sc. (IFAM) or Diploma in Fishery Science and as such he fulfilled the eligibility criteria in terms of the recruitment rules. However, when he came to know that the Commission is not going to issue interview letter to him for appointment on the ground that he did not possess the requisite qualification, he filed the Writ application with the aforesaid prayer after about a year from the date of issuance of advertisement.

5. During pendency of the Writ application, the intervenor-appellants, who possessed the requisite qualification in terms of the recruitment rules filed an application for their addition as a party-respondent and they had been added as a party-respondents.

6. The State Government, the Commission and the Intervenor-respondents filed their separate counter-affidavit. Their stand is that fixation of a qualification for a particular post is a policy decision and the State Government in exercise of its statutory power has framed a rule prescribing the qualification for the said post. Respondent No. 1 did not possess the requisite qualification as even according to his own assertion, he is M.Sc. (FM) from CIFE, Bombay which is not included as one of the requisite qualification in the recruitment rules and as such he was not eligible and the Commission rightly did not issue interview letter to him.

7. During pendency of the Writ application, this Court by an interim order allowed the respondent No. 1 to appear in the interview with a condition that the result shall not be published until further orders of this Court. On 9.2.2000, the matter was heard by a learned Single Judge of this Court and it was submitted on behalf of the Commission and the State that laying down the requisite qualification for a particular post is to be decided by the appointing authority and not by the Court and the learned Single Judge having agreed with the aforesaid stand of the Commission and the State directed the respondent No. 1 to make a representation before the Chairman of the Commission who shall forward the same to the Secretary and the Director of the department concerned and they will take a final decision within the time mentioned in the said order. The appellants were also directed to file their own representation which shall also be considered by the authority concerned. It appears that the State Government considered the matter and rejected the claim of respondent No. 1 by order dated 8th March, 2000. The State Government took the view that the qualification possessed by respondent No. 1 i.e., (FM) from CIEF is not one of the requisite qualifications prescribed in the recruitment rules and as such respondent No. 1 cannot claim appointment in terms of the qualification prescribed in the recruitment rules and the advertisement. However, it was stated that so far as the question of including other educational qualification in the recruitment rules is concerned, the State Government is taking the opinion of the experts and after receipt of the expert opinion, necessary amendment would be made in the recruitment rules. The said order has been annexed as Annexure-B to the supplementary counter-affidavit filed on behalf of the State on 10.3.2000. The said order was not challenged before the learned Single Judge by filing amendment petition. The learned Single Judge by the impugned order went to the question as to whether the Degree of M.Sc. (FM) is equivalent to Degree of M.Sc. (IFAM) from CIEF, Bombay and held that respondent’s No. 1 Degree of M.Sc. (FM) is equivalent to the Degree of M.Sc. (IFAM) granted by the CIFE and the Commission was not justified in refusing to issue interview letter and accordingly, directed the authorities to treat respondent No. 1 as possessing the requisite qualification for the post concerned and publish the result on the basis of interview already held in pursuance of an interim order of this Court.

8. The learned Counsel appearing for the appellants has assailed the Judgment of the learned Single Judge and has submitted that prescribing qualification for a particular post of the State Government is a policy decision and once the State Government has framed a recruitment rules prescribing the qualifications, the question as to whether any qualification not included in the recruitment rules is a equivalent qualification or not is to be decided by the State Government and not by the Court. In other words, the Court cannot re-frame the rules, which is a function assigned to the State Government or the appointing authority. It was further submitted that M.Sc. (FM) from CIFE, Bombay is not the same qualification as Diploma in Fisheries Science or M.Sc. (IFAM) and in this connection, reference was made to the various documents which were part of the Writ application.

9. The stand of the appellants was supported by the State and the Commission.

10. The learned Counsel appearing for respondent No. 1 on the other hand submitted that the learned Single Judge has rightly held that the Master Degree in FM, equivalent to Master Degree in IFAM from CIFE, Bombay. In this connection, he submitted that the Master Degree in IFAM and Master Degree in FM possessed by respondent No. 1 are granted by CIEF, Bombay and they are equivalent or similar to the qualifications and once the State Government has treated the Master Degree in IFAM as equivalent to Diploma Course in Fisheries Science, Master Degree in FM has rightly been treated as equivalent to IFAM by the learned Single Judge. The learned Counsel for the respondent No. 1 also referred to several letters of the CIFE, Bombay to show that the Master Degree in FM is equivalent to Master Degree in IFAM from CIFE, Bombay.

11. In view of the submissions advanced at the bar, two questions arise for consideration in this appeal. Firstly, as to the scope or power of judicial review in the matter of prescribing requisite qualification by the competent authority for a particular post and secondly as to whether the qualification possessed by respondent No. 1, i.e. M.Sc. (FM) from CIFE, Bombay is to be treated as equivalent to the Diploma in Fisheries Science, thus, making respondent No. 1 eligible for the said post by treating him as a candidate possession the Degree of B.Sc. (Zoology) with M.Sc. (FM) from CIFE equivalent to Diploma in Fisheries Science.

12. Prescribing qualification for a particular post by the competent authority is a policy decision. The Government frames a policy after taking into consideration the number of facts and circumstances, expert opinion and other relevant consideration. The power of judicial review in such matter is limited. The Court can interfere only when the authorities have acted arbitrarily or in violation of the statutory or constitutional provisions. The Court does not sit as an appellate forum in disguise over the policy matter. It has no power to re-frame the policy matter and in case the policy matter is found suffering from any legal infirmities as indicated above, then the same is to be struck down and the matter is sent to the authority to consider the policy matter in accordance with the law laid down. If the rules have been framed prescribing the qualification for a particular post, the Court has no power to re-frame the rules or supplement the rule by adding additional qualification for the simple reason that is a function of the appointing authority and in the case of any legal lacuna the Court can only direct the appointing authority to consider the matter on the basis of the expert opinion and other relevant consideration. The Court cannot on the basis of the documents appended with the affidavit determine the equivalence or addition of qualification in the recruitment rules.

13. In the case of J. Rangaswamy v. Government of Andhra Pradesh and Ors. the question for consideration was for appointment to the post of Professor in Radiological Physics. The appellant before the Supreme Court, possessed the Diploma in Radiological Physics (as applied in Medicine) from the Bhabha Atomic Research Centre (BARC) and claimed that his qualification was better qualification which was prescribed as a qualification for the said post by the appointing authority. Dealing with the said matter, the apex Court held that it is not for the Court to consider the relevance of qualifications prescribed for various posts or to assess the comparative merits of such a doctorate and the BARC Diploma held by the petitioner and decide or direct 88 to what should be the qualifications to be prescribed for the post In question. It is for the authority concerned to consider and take a final decision in the matter and on that basis the claim of the petitioner was negatived by the apex Court on the ground that he did not possess the requisite qualification.

14. In the case of Government of Orissa and Anr. v. Hanichal Roy and Ors. the recruitment rules vested power in the State Government to relax the provisions of the Recruitment Rules. The Orissa Administrative Tribunal instead of directing the State Government to consider the matter of relaxation, itself relax the provisions of law. The apex Court dealing with the said matter held that the Tribunal cannot decide the question of relaxation of provisions of law. According to the rule, the State Government was competent authority to consider the relaxation as provided in the rules and accordingly, set aside the order and directed the State Government to consider the question of relaxation.

15. Thus the law is settled that when the recruitment rules provide for a requisite qualification and the question arises as to whether any other qualification is equivalent to the qualification prescribed in the recruitment rules or not, then that question has to be decided by the competent authority and the Court cannot amend the rule or re-frame it and the Court can only direct the authority concerned to re-examine the matter specially in a technical matter, like this, after obtaining the expert’s opinion. The Court cannot take a final decision on the basis of affidavit and the opinion of the expert and decide such matter. The power of judicial review in such a matter is very limited and in case if the State Government decides the matter and the same is found to be arbitrary, malafide, then the Court will consider the same keeping in view the scope of judicial review in such matter.

16. Coming to the facts of this case, according to the respondent No. 1, he possessed the B.Sc. in Zoology and Master’s Degree in FM which according to him is equivalent to Diploma in Fisheries Science. Unless it is held that Master’s Degree in FM from CIFE is equivalent to Diploma in Fisheries Science, respondent No. 1 cannot be said to have one of the requisite qualifications prescribed in the recruitment rules. The learned Counsel for respondent No. 1 heavily relied upon a Division Bench Judgment of this Court in the case of Nutan (supra) in support of his contention. From perusal of paragraph 25 of the said Judgment, it is clear that in that case, their Lordships held that the candidates, possessing Degree of B.Sc. in Zoology and Master’s Degree in IFAM from CIFE were eligible for appointment in terms of the rules on the ground that the State Government has treated the Master’s Degree in IFAM from CIFE as equivalent to Diploma in Fisheries Science which was prescribed for the candidates with B.Sc. (Zoology). No doubt, while dealing with the said matter, their Lordships was also taken note of the certificate issued by the CIFE, Bombay but that case is not an authority that the Court while exercising the power of judicial review will itself decide the question as to whether qualification not included in the recruitment rules is to be treated as equivalent qualification.

17. The assertion made on behalf of respondent No. 1 that Degree of M.Sc (FM) from CIFE, Bombay is equivalent to Diploma in Fisheries Science was controverted by the concerned authority-respondents and they asserted in detail that courses of M.Sc. (FM) from CIFE, Bombay and Diploma in Fisheries Science are different and duration of studies are also different and they also asserted that Master’s Degree in (FM) is not equivalent to Master’s Degree in IFAM from CIFE, Bombay.

18. The question involved in this case relates to filling up technical posts and as such it cannot be decided on the basis of certain documents appended with the affidavit by the Court in view of the settled law regarding the power of judicial review by the Apex Court in such matter. In that view of the matter, the learned Single Judge was not justified in deciding the question that qualification possessed by respondent No. 1 was equivalent to the qualification prescribed in the recruitment rules inasmuch as that amounts to amending the rules and re-framing the rules which is not permissible in law. As stated above, the matter was already referred to the State Government and the State Government has rejected the claim of respondent No. 1 on the ground that in terms of the prescribed qualification, respondent No. 1 is not eligible for appointment to the post of Fisheries Extension Officer. It is stated on behalf of the State that the expert will be consulted and thereafter, if necessary, amendment will be made in the rules to include additional qualification, but so long as the rules are not amended and the additional qualifications are added, the appointment has to be made on the basis of qualification prescribed in the Rules. The advertisement was made in June, 1998 and admittedly, respondent No. 1 did not possess the requisite qualification in terms of the advertisement. He sat over the matter and after about a year he filed the Writ application when the date of interview was fixed. If he had an grievance with the advertisement, he should have approached the Court at the earliest. Thus, it is held that the learned Single Judge was not justified in allowing the Writ petition of respondent No. 1 for the simple reason that he did not possess the requisite qualification in terms of the recruitment rules and advertisement.

19. Accordingly, the impugned Judgment passed by the learned Single Judge is set aside. The Commission is directed to proceed with the process of selection and thereafter the State Government to make the appointment.

20. In the result, the appeal is allowed.


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