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Jammu High Court
State Of J And K And Ors. vs Muzaffar Ahmad Bhat And Ors. on 5 September, 2007
Equivalent citations: 2008 (2) JKJ 233
Author: M A Mir
Bench: M A Mir


JUDGMENT

Mansoor Ahmad Mir, J.

1. This criminal revision is directed against the order dated 8-7-2006 passed by learned Special Judge, Anti-Corruption, Kashmir, in File No. 121/B of 2006 titled State v. Muzaffar Ahmad Bhat and Ors. discharging the accused-respondents of the charges leveled against them.

2. Before proceeding further, it is profitable to notice the brief facts of the case.

3. Respondent No. 1-accused in response to the notification No. C of 1989 dated 22-6-1989 applied for the post of Lecturer in the discipline of Music for Higher Education Department. M.A. Music or equivalent grade was the requisite qualification for the said post and minimum age for applying for the post was prescribed as 18 years. Respondent No. 1-accused possessed diploma in Sangeet Basker from Prachecn Kala Kendra, Chandigarh.

4. The case of the prosecution is that possessing of diploma in Sangeet Baskar from Pracheen Kala Kendra, Chandigarh and relied by accused No. 1 was not equivalent to M.S. Music and he had also not attained the age of 18 years as on 1-1-1989, as required in terms of notification referred to hereinabove. The allegation against other accused-respondents 2 to 6 who were members of the Eligibility Committee of the Public Service Commission, is that they hatched a conspiracy and declared accused No. 1 as eligible despite of the fact that he was not having minimum age at the relevant point of time and was not possessing requisite qualification.

5. The trial court after hearing learned Counsel for the parties discharged the accused and dismissed the challan.

6. The Investigating Officer after collecting material and investigating the case, submitted charge sheet in terms of Section 173 Cr.P.C. against the accused-respondents with the allegations that the accused No. 1 was not 18 years of age on 1-1-1989 and he was not having requisite qualification. The Investigating Officer has also obtained notification No. 10-PSC of 1989 dated 22-6-1989, a copy whereof is on the trial court file. The said notification provides that the candidate applying for the post of Lecturer must possess Master’s Degree in the relevant subject…or its equivalent grade and good academic record. It is profitable to reproduce relevant portion of the said notification hereunder:

QUALIFICATION:

Master’s degree in the relevant subject with at least 55% marks or its equivalent grade and good academic record.

Besides other conditions, it also lays down the following conditions:

  i. x    x    x    x    x    x    x    x    x
 

ii. from persons not possessing the minimum basic qualifications as prescribed above on the last date for receipt of applications;
 

iii. from persons not conforming to the age limit prescribed above on the last date for receipt of application;
 

7. As per the terms and conditions contained in the notification, the accused-respondent No. l must be 18 years of age and must possess Master’s Degree or its equivalent grade as on 4-8-1989. The question which arises for determination is whether as per material collected by the Investigating Officer and documents collected under Section 173 Cr.P.C. read with charge sheet, the accused No. 1 was 18 years of age on the said date and was possessing requisite qualification? In order to find answer to these questions, it is necessary to peruse the record.

8. As per record, the Investigating Officer has seized date of birth certificate of the accused No. 1 issued by the J&K Slate Board of School Education, in which the date of birth of the accused – respondent No. 1 is shown as 14-2-1971. Thus he was more than 18 years of age on the cut of date i.e. 4-8-1989. The first allegation against the accused thus fails.

9. Now coming to the second allegation that there the accused – respondent No. 1 was having diploma in Sangeet Bhasker, which is not the equivalent grade, is also not correct. The Investigating Officer has seized qualification certificates of the accused No. 1 which disclose that he is possessing diploma in Sangeet Baskar, Sangeet Visharad, Sangeet Visharad Pratham Khand, Sangeet Bhushan and diploma in Table.

10. A communication seems to have been addressed by Mr. M.Y. Bhat, Deputy Registrar, Academic, University of Kashmir to the Senior Superintendent of Police, Zonal crime Headquarters, Kashmir, which discloses that the minimum qualification for the post of lecturer in Music must be Sangeet Bhaskar. It is profitable to reproduce the contents of the communication hereunder:

In partial modification of this office letter No. F(EQ-VERI) Acad/Ku/03 dated 26-2-2003 this is to inform you that the Registrar, Pracheen Kala Kendra, Chandigarh, forwarded a Photostat copy of the resolution passed by the equivalence committee of this University at its meeting held on 19-8-1970, hereunder the following Diplomas in Music awarded by the Kendra have been granted recognition as Technical Qualification for purposes of minimum qualifications for teachers in the affiliated colleges:

 Class                 Minimum Technical qualification.
Pre-University Course. Instructor:

         Sangeet Bushan (Vocal & Instrumental Music) 

                          Lecturer, 

         Sangeet Visha                     -do-

Three year degree Course:       Instructor:

Sangeet Vishard (Vocal & Instrumental Music) 
Lecturer:
Sangeet Bhaskar.                -do-

 

Since this information was not available in the records because the University was burnt in 1981 and records thereof were also destroyed.
 

11.  While going through this communication, prima facie one comes to a conclusion that a candidate having diploma in Sangeet Bhasker is eligible to compete for the post of Lecturer Music.
 

12. Apex court in case Civil Appeal No. 6098/1997 titled State of Bihar and Ors. v. Bihar Rajya M.S.E.S.K.K. Mahasangh and Ors. referred the matter vide order dated 12-10-2001 to the Commission known as “Agarwal Commission” for examining the issue(s) and submitting the report on the subject. The said Commission after deliberating on the points, submitted its report. It is profitable to reproduce the relevant paras of the commission, so far is relevant for the present case, hereunder:

Lecturer in Music: Essential-degree or diploma in Hindustani, Karnatak, Western [vocal or instrumental] music, as may be specified, of a recognized institution of repute:

Desirable:

(a) Bachelor’s degree in any faculty.

(b) Experience of giving recitals on Radio and in Music Conferences.

(c) Teaching Experience.

(d) Knowledge in Hindi.

For the post of Lecturer in Music the essential qualification was degree or diploma in Hindustani, Karnatak, Western [vocal or instrumental] music, as may be specified, of a recognized institution of repute. A question has arisen as to the meaning of the words ‘recognized institution of repute’. Does it mean recognized by the University concerned in which appointment is being made or it would also cover recognition by any other authority, i.e., the State Government or the Central Government or the University grants Commission. In my view the words are wide enough to mean recognition of the institution by the University concerned or by the State Government or the Central Government or the University Grants Commission.

As regards the Postgraduate qualification in Music, it has been pointed out that there are two recognized institutions, which award degrees/diplomas in Music. One is the Prayag Sangeet Samiti at Allahabad, which awards the degrees of ‘Sangeet Prabhakar” and ‘Sangeet Parveen’. Another institution is Prachin Kala Kendra, Chandigarh, which awards diplomas in ‘Sangeet Visharad’ and ‘Sangeet Bhaskar’. A number of Universities in the country including the Bhagalpur University and Bihar University in Bihar and a number of State Governments have recognized the aforementioned degrees/diplomas of these institutions. The degrees of Sangeet Praveen and Sangeet Bhaskar are treated as equivalent to M.A. in Music. While Sangeet Prabhakar and Sangeet Vishard are treated as equivalent to B.A. in Music. For the purpose of considering the minimum qualifications in Music, 1 would proceed on the basis that degree of ‘Sangeet Praveen” and Diploma in ‘Sangeet Bhaskar’ are equivalent to post Graduate qualification in Music and the degree of ‘Sangeet Prabhakar’ and Diploma in Sangeet Visharad’ have to be treated as equivalent to Graduate qualification in Music.

Lecturer in Music and Fine Arts.

In the service of the University/admitted colleges:

Qualifications; (a) Good academic record with at least second class [C in the sent point scale] Master’s degree in a relevant subject or an equivalent degree or diploma recognized by the University; and (b) Two years research or professional experience or evidence of creative work and achievement in his field of specialization or a combined research and professional experience of three years in the field as an artist of outstanding talent.

13. The apex court in yet another case State of Bihar and Ors. v. Bihar Rajya M.S.E.S.K.K. Mahasangh and Ors. , while dealing with an identical case held that decision with regard to the qualification of each employee is to be taken by the University based on the findings of the enquiry commission and in the light of the legal position explained in the judgement. It is profitable to reproduce the paras 26 and 73 of the judgement hereunder:

26. In our opinion, decision on absorption of the existing teaching and non-teaching staff of the affiliated colleges, which are taken over as constituent colleges, is within exclusive jurisdiction of the Universities concerned. Decision in individual cases, with due regard to the qualification of each employee and corresponding statute applicable at the relevant time prescribing qualification, if any, for the teaching and non-teaching post, is required to be taken by the university based on the findings in the report of justice Agrawal Commission and in the light of the legal position explained in this judgement….

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

73. In view of this judgement and the directions made herein to the university to take a final decision based on the report of the Enquiry Commission, all the applications for impleadment as parties and objections filed to the enquiry report are rejected. It is for the university to take a final decision concerning the individual employees. For the same reason, no further orders are required on the interlocutory applications seeking certain directions pending the appeal and for modification of earlier orders made. Other interlocutory applications also need no further directions or orders. They all stand disposed of.

Conclusions.

1. The judgement of the High Court, to the extent of the interpretation placed by it on the provisions of Section 4(1) (14) and Section 35 with the directions issued in paras 24 to 26 therein, is hereby confirmed for the reasons recorded by us above.

2. The report of the Commission of Enquiry of Hon’ble Justice S.C. Agrawal (Retired), is accepted and all objections filed against the said report are rejected.

3. The members of the staff in various affiliated colleges identified and named in List (i) being appointees against the sanctioned posts shall be absorbed and formal order to that effect shall be issued by the universities concerned.

4. The Universities shall take a decision under Section 4(1) (14) of the Act in the matter of absorption of appointees named in List (ii) of the report of the Commission, being appointees against posts for which recommendations were sent by the universities to the State up to the cut-off date in accordance with the decision of the State Government conveyed in its letter dated 19.8.1986 followed by letters dated 25.8.1986 and 12.6.1987.

5. In considering the question of absorption of appointees named in List (ii) of the report of the Enquiry Commission, the universities concerned shall rely on the contents of the report of the Enquiry Commission and the present judgement of this Court.

6. The appointees mentioned in List (iii), being the appointees against posts for which recommendations were sent by the universities to the State Government after the cut off date or those working against posts for which no recommendations were sent for approval of the State Government, have no right of being considered for absorption- whatever may be the fortuitous circumstances or otherwise in the matter of not sending recommendations for sanction in their cases. The negative report of the Enquiry Commission with regard to List (iii) is accepted and the universities are directed to exclude all such appointees named in List (iii) from consideration for absorption.

7. A large number of objections to the report of the Enquiry Commission filed before us by associations of employees and individuals pertain to the alleged lack of prescribed qualifications for the posts on which they are working. All those objections have not been recommended for absorption in the report of the Enquiry Commission. Decision in individual cases, with due regard to the qualification of each employee and corresponding statute applicable at the relevant time prescribing qualifications, if any, for the teaching and non-teaching posts, shall be taken by the universities based on the findings in the report of Justice Agrawal Commission and in the light of the legal position explained above.

14. Keeping in view the report of the Commission and the judgements of the apex court read with communication made by the University, it prima facie appears that accused No. 1 was having requisite qualification because he was possessing diploma in Sangeet Bhaskar which is equivalent to M. A. Music. Thus the second allegation also fails.

15. Accused No. 6, Mohammad Sharief Qadri, who is said to be a member of the Eligibility Committee was on earned leave at the relevant point of time. How does it lie in the mouth of prosecution to allege that he was involved prima facie here and there in the commission of offence(s).

16. Now coming to very important question of law i.e. if at all prosecution would have been in a position to show prima facie anything against the accused, could the trial court frame charge against the accused for hatching conspiracy?

17. Advertisement notification came to be issued in the year 1989, how the members of the Public Service Commission and the Eligibility Committee were knowing that accused No. 1 had also to apply- No such allegation is disclosed in the charge sheet submitted in terms of Section 173 Cr.P.C. The prosecution has not been able to establish prima facie that accused No. 1 had entered into any conspiracy with other members so as to pave way for his entry in service.

18. Keeping in view the above discussions, I am of the considered opinion that the trial court has not committed any illegally or irregularity in passing the impugned order.

19. There is thus no merit in the revision petition which is accordingly dismissed.


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