IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14222 of 2008 MD.SHABBIR AHAMD & ORS W i t h CWJC No.18120 of 2008 MAHESH CHANDRA VISHWAKARMA &OR W i t h CWJC No.18121 of 2008 AJIT KUMAR RANJAN & ORS W i t h CWJC No.18997 of 2008 SHANKAR KUMAR & ORS Versus THE STATE OF BIHAR & ORS ----------- 4/ 22/01/2009. Heard learned counsel for the petitioners and learned counsel for the State. Learned Additional Advocate General-3 submits that due to State Government Employees‟ strike he is unable to file any counter affidavit despite grant of adjournment for the purpose. The Court then permitted him to place the original records of the matter under consideration by the State Government before this Court and make submissions from the same. The issue concerns the recognition of the Shiksha Visharad degree granted by Hindi Sahitya Sammelan, Prayag, Allahabad in the State of Uttar Pradesh as equivalent to a degree of B.Ed. At the centre of the controversy is the grievance of the petitioners with regard to non-consideration of their cases for appointment as Panchayat Teachers, for the aforesaid reason. Earlier a Bench of this Court dismissed C.W.J.C. No.12635/06 seeking similar relief. In L.P.A. 2 No.45/07 preferred against the same, the Division Bench declined to interfere and left the matter for appropriate consideration by the State Government within a fixed period. A fresh decision followed on 24.7.2008 declining to grant such equivalence. This was assailed in C.W.J.C. No.15605/07 and analogous cases that it was not a decision of the State Government but that of an individual officer i.e. the Special Secretary, Department of Human Resources, Government of Bihar. This Court by order dated 9.9.2008 held that no policy decision had been taken by the State Government, as directed, by the Division Bench and that it was the decision of an individual officer. The order was set aside. The matter was remanded with directions for a fresh reasoned decision to be taken by the State Government as a matter of policy. The respondents have now taken such fresh policy decision on 20.11.2008 declining to grant such equivalence. Learned counsel for the petitioners emphasized that no policy decision had been taken by the State Government. It was again the individual order of an officer of the State Government, i.e. the Principal Secretary of the Human Resources Development Department and, therefore, the order was bad. Reliance has been placed upon Rule-32(a)(ii) of the Rules of 3 Executive Business. Learned Additional Advocate General-3 from the original records submits that the matter had engaged the attention of the State Government. After proper consideration and approval of the departmental minister on 18.11.2008, the policy decision dt. 20.11.2008 has only been issued/communicated in compliance of the orders of this Court under the pen of the Special Secretary. That the recitals in the impugned order dated 20.11.2008 do not reflect consideration by the Departmental Minister. But it is equally settled that such application of mind, even if not mentioned in the order, can be well supported from the records, if the records display adequate application of mind. On the facts of the case the official records adequately reveal that the order dated 20.11.2008 is not an order of an individual officer, but is an order based on deliberation and approval of the Departmental Minister. In AIR (1996) S.C. 722 (State of Maharashtra & Ors. Versus Ishwar Piraji Kalpatri & Ors.), the High Court had set aside the order of sanction for prosecution under the Prevention of Corruption Act inter alia for the reason that the sanctioning officer did not mention in the body of the sanction order that the property was disproportionate to his known sources of 4 income and the public servant could not satisfactorily account for the same and that this statement had not been recorded in the order. While granting sanction there had been non-application of mind by the sanctioning authority. The Supreme Court on challenge by the prosecution in the relevant extract of the judgement at paragraph-10 held as follows:- 10. ……”Without going into the question as to whether in the order according sanction it is necessary for such averment being made the record clearly discloses that in the schedule annexed to the sanction such statement was made….” Again at paragraph-11 the argument that the order was not signed by the competent authority was rejected when the order stated that it was on behalf of the Government of Maharashtra had examined the materials and considered all facts. In conclusion, the Supreme Court held at paragraph-12 as follows:- 12. “This prima facie shows that there has been an application of mind and that the material on record has been examined by the concerned officers before according sanction. In view of the aforesaid, there was absolutely no justification for the learned Judge to observe that any such statement, as indicated by him, was required to be made in the order. The learned single Judge made observations to the effect that the manner in which the sanction order had been passed would show that a rather cavaliar treatment has been meted out in the present case. We do not see any justification for the Court making such observations in the present case because the perusal of the order of sanction does not show any legal infirmity and such remarks by the Judge were clearly uncalled 5 for”. It was next contended that the decision dated 20.11.2008 had not been taken in the manner prescribed by Rule-32(a)(ii) of the Rules of Executive Business (hereinafter referred to as „the Rules‟) which reads as follows: 32(a) “The following cases shall be submitted to the Chief Minister through the Chief Secretary by the Principal Secretary/Secretary of the department concerned after consideration by the Minister- in-charge but before issue of orders: (ii)Cases raising questions of policy and cases of a administrative importance not covered by the third Schedule.” Rules of Executive Business framed under Article-166(3) of the Constitution of India have been framed for the purpose of allocation and disposal of business. The Rules have been held to be directory and Courts have relied upon the theory of substantial compliance, unless the Rules contain a clear interdict to an action as a pre-condition as under Rule-12. Under Rule-21, cases are to be disposed by or under authority of the Minister-in-charge. The applicability of Rule-32(a)(ii), relied upon by the petitioners may arise in an appropriate case where the executive action is to be expressed in the shape of a formal order or notification or any other instrument only. Such is not the case presently. The only issue presently is a proper departmental consideration 6 which stands satisfied. Even if Rule-32(a)(ii) be urged to be applicable, the absence of the same cannot vitiate or nullify the decision. The order dated 20.11.2008, adequately discloses the materials which were considered, the sources of the materials and the conclusions of the State Government on such materials supported by reasoning. The Hindi Sahitya Sammellan inter college was not authorized to conduct the examinations. Issues of academic equivalence and recognition of degrees for purposes of employment are matters for the employer to decide. It is not that the degrees of the petitioners are rendered redundant. It is only that an employer does not consider it in its interest to consider for employment certain degrees of certain institutions. This issue engaged the attention of the Supreme Court in AIR 2002 S.C. 2642 (State of Rajasthan and others v. Lata Arun). The issue related to the eligibility qualification for admission in General Nursing and Mid-wifery and Staff Nurse Course. The candidate possessed the educational qualification of Madhyama from the Hindi Sahitya Sammelan, Prayag, Allahabad of a Madhyama certificate provisionally recognized as equivalent to a degree in Hindi which later came to be cancelled. The candidate was given provisional admission 7 which was subsequently cancelled when the nursing course was nearing completion after three years. The State Government contended that she did not have the necessary qualification for admission to the course, the same not being recognized as equivalent to regular examinations of Secondary Board/Universities, and that the Hindi Sahitya Sammellan was only a voluntary Hindi institution set up for promotion of Hindi. The Single Judge of the High Court while holding that it would not be proper for the Court to examine the matter left it to the Nursing Council to decide the matter sympathetically and objectively. The Nursing Council took a decision of the ineligibility of the petitioner. In the fresh writ petition preferred by her directions were issued to declare her result. In challenge before the Division Bench it was held that the order of the Single Judge was in the interest of justice over all and required no interference. The Supreme Court, at paragraph-9 of the judgement culled the controversy in the following terms: 9. “The points involved in the case are two fold: one relating to prescription of minimum educational qualification for admission to the course and the other relating to recognition of the Madhyama Certificate issued by the Hindi Sahitya Sammelan, Allahabad as equivalent to or higher than + 2 or 1st year of TDC for the purpose of admission. Both these points relate to matters in the realm of policy decision to be taken by the State Government or the authority vested with power under any statute. It is not for 8 Courts to determine whether a particular educational qualification possessed by a candidate should or should not be recognized as equivalent to the prescribed qualification in the case. That is not to say that such matters are not justiciable. In an appropriate case the Court can examine whether the policy decision or the administrative order dealing with the matter is based on a fair, rational and reasonable ground; whether the decision has been taken on consideration of relevant aspects of the mater; whether exercise of the power is obtained with mala fide intention; whether the decision serves the purpose of giving proper training to the candidates admitted or it is based on irrelevant and irrational considerations or intended to benefit an individual or a group of candidates. The Supreme Court then referred to its own earlier judgements on the issue at paragraphs-10 and 11 as follows:- 10. “This Court in Delhi Pradesh Registered Medical Practitioners v. Director of Health, Delhi Admn. Services and others, (1977) 11 SCC 687). Rejecting the contention that proper consideration had not been given to the standard of education imparted by the Hindi Sahitya Sammelan, Prayag and expertise acquired by the holders of the degrees awarded by the said institution, made the following observations: “…………. It is not necessary for this Court to consider such submissions because the same remains in the realm of policy decision of other constitutional functionaries. We may also indicate here that what constitutes proper education and requisite expertise for a practitioner in Indian Medicine, must be left to the proper authority having requisite knowledge in the subject. As the decision of the Delhi High Court is justified on the face of legal position flowing from the said Central Act of 1970, we do not think that any interference by this Court is called for……” 11. “In the case of Dr. Ravinder Nath v. State of H.P. and others, (1993 Supp (2) SCC 9 639), this Court considered the question whether a diploma/degree of Vaidya Visharad or Ayurveda Ratna obtained from Hindi Sahitya Sammelan, Allahabad, which institution was recognized for the period from 1931 to 1967 only, could be accepted as educational qualification fulfilling the eligibility conditions for promotion to the post of Ayurvedic Chikitsa Adhikari (Vaidya) under the State of Himachal Pradesh. This Court held that the Secod Schedule to the Indian Medical Central Council Act, 1970 came into force in which clearly mentioned the period for which diploma/degrees awarded by the Hindi Sahitya Sammelan were recognized. The respondent obtained qualification after this period for which there was no recognition, and they were aware of the fact which itself disentitled them from claiming promotion. Their contention that the condition regarding degree from a recognized body is prescribed for direct recruitment only in Rule-7 of 1974 Recruitment Rules while there is no such condition in Rule 11 which governs promotion, was rejected by this Court holding that the recruitment rules have to be read consistently with the 1970 Act and 1968 Act as well as the Government Notification dated 21-2- 1978 which recognizes diploma/degrees awarded by the Hindi Sahitya Sammelan during the period 1931 to 1967 only. This court declared that the qualifications acquired by the respondent for the HSS which were admittedly after 1967 did not entitle them to be considered for promotion to the post of Vaidya”. The Supreme Court then concluded at paragraph-12 in the following terms:- 12. “From the ratio of the decision noted above it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for Courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority.” 10 In conclusion it was held at paragraph-13 of the judgement that the Madhyama Certificate from the Hindi Sahitya Sammelan, Prayag, Allahabad having been deleted from the recognized qualifications by a notification, the High Court was in error in issuing directions to the authorities to treat the respondent as a candidate possessed of the prescribed qualifications and to declare her results on that basis. The order dated 20.11.2008 has been held to be a policy decision. This Court, on the discussions contained in the order finds it difficult to sit in judgement over the policy decision on any alleged grounds, perversity, irrationality or mala fides. The Court, based on the aforesaid discussion finds it difficult to issue any mandamus to the State Government compelling it to recognize the degree of Shiksha Visharad as equivalent to B.Ed. and consequentially issue directions for considering the candidature of the petitioners. There is no merit in these writ applications. The same are accordingly dismissed. KC ( Navin Sinha, J.)