IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10162 of 1997 Upendra Pandey, son of Shri S. Pandey, resident of Jagdishpuri Lane, Mithanpuran, Muzaffarpur, PIN 842 002 … Petitioner Versus 1. The State Of Bihar 2. Bihar State University Service Commission through its Chairman, Patna 3. Nagendra Kumar Jha, son of not known, resident of Andrathari, P.O. Andrathari, District Madhubani 4. Mr. Ram Prakash, son of not known to the petitioner, Lecturer in Sanskrit, State of Bihar, through Secretary, H.R.D. Secretariat, Patna 5. Mr. Shri Jitendra Kumar Duvivedi, son of not known to the petitioner, lecturer in Sanskrit, State of Bihar, through Secretary, H.R.D. Secretariat, Patna … Respondents ---------------------------------- For the Petitioner : Mr. Amit Prakash, Advocate For the State : Mr. Kumar Alok, Advocate For Respondent no. 5 : Mr. Naresh Dikshit, Advocate ---------------------------------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (17.10.2011) Mihir Kumar Jha, J. Heard counsel for the parties. In this writ application the petitioner has prayed for the following relief: “That this application is being filed for quashing the appointment of Lecturers in Sanskrit by respondent no.2 of such candidates as respondent no.3 who are holding Acharya degree and are appointed in the Universities of Bihar other than K.S.D. Sanskrit University and for a direction of appointment of persons with M.A. in Sanskrit in their places from the panel prepared by the University service Commission in the Sanskrit subject.” It has to be noted that as the aforementioned prayer was quite vague and the persons who were likely to be affected by grant of such relief were not made party to the writ application, this Court by an order dated 2 24.3.1999 had given liberty to the learned counsel for the petitioner to make some of the appointed persons as party respondent to this writ application. Thus, apart from respondent no.3 the petitioner had also impleaded two other persons who were made respondents no. 4 and 5 to this writ application and the notices were issued to all of them. As a matter of fact while doing so this Court had also reviewed the scope of the writ application in the order dated 10.8.2010, the relevant portion whereof reads as follows: “ In this writ application the petitioner, an unsuccessful candidate for the post of Lecturer in Sanskrit, raises a very short but an interesting question. He would submit that though the students having post graduate in Sanskrit were only eligible for appointment on the post of Lecturer but then by the parity or equivalence of the qualification of Acharya three of the candidates, namely, Ram Prakash, Nagendra Kumar and Jitendra Kumar Dwivedi, were recommended and appointed on the post of Lecturer though they were not having qualification of Acharya. Mr. Amit Prakash would submit that if these three persons are excluded the petitioner who had also competed in the written examination and called for viva- voce could be recommended and appointed on the post of Lecturer in Sanskrit. In this context his main reliance is on a Government resolution dated 29th March, 1963 which specifies the equivalence of the qualification of Acharya wherein Acharya without English at Shastri stage under Navin system would be equivalent to M.A. (Sanskrit) for Sanskrit teaching and inspection of Sanskrit Institutions but for other appointments it would be equivalent to I.A. or B.A. Part I and Acharya with English at Shastri stage under Navin system would be equivalent to M.A. (Sanskrit)/ B.A. onlyh for Sanskrit teaching and inspection of Sanskrit Institutions but not for any other appointment. The gist of the submission of Mr. Amit Prakash is that the aforesaid three persons have been recommended and appointed without possessing the requisite minimum qualification for the 3 post of Lecturer in Sanskrit. The petitioner in this case has impleaded only one out of three of the aforementioned candidates and the rest of two of them, namely, Ram Prakash and Jitendra Kumar Dwivedi have not been impleaded as a party to the writ application. If the submission of Mr. Amit Prakash is accepted their appointment will become vulnerable. This Court in order to do complete justice between the parties and also the aforementioned two persons would direct for impleadment of Ram Prakash and Jitendra Kumar Dwivedi but as their present whereabouts are not known, the notices on them will be served through the Principal Secretary of the Human Resources Department, who would request the Registrar of the concerned University where these two persons have been appointed to effect service of notice and submit a compliance report to this Court through the Secretary of Higher Education Department. Let two copies of complete pleadings be made available to Mr. Kumar Alok for effecting service on the newly added respondents no. 4 and 5. This Court would also direct the State of Bihar now being the successor body of Bihar University (Constituent Colleges) Service Commission to produce broad-sheet and panel of all the candidates who had appeared in the interview. It will be also open for the respondents to file their supplementary counter affidavit annexing the relevant Government decision to justify the selection and appointment of the aforementioned three persons on the post of Lecturer in Sanskrit.” Subsequently the notices having been served respondent no.5 Jitendra Kumar Diwedi has appeared and filed an exhaustive counter affidavit. Mr. Amit Prakash, learned counsel for the petitioner, had basically concentrated on the aspect that when the Bihar University (Constituent Colleges) Service Commission had advertised the post of 4 Lecturer for different Universities, it had never contemplated to also consider the cases of such persons who were not holder of the degree of Master in Arts in Sanskrit and to that extent he was quite specific that the holder of the qualification of Acharya from Kameshwar Singh Darbhanga Sanskrit University could not be treated to be qualified for the post of Lecturer in Sanskrit. His further line of attack as against the recommendation and appointment of respondents no. 3 to 5 was that since all the three of them were appointed on the basis of Acharya degree their appointment due to lack of prescribed qualification must be held to be bad and thus, fit to be set aside. Mr. Prakash in order to support himself had referred to a resolution of the Education Department dated 29.3.1963 which according to him was a direct answer to Acharya qualification. According to him, the said resolution reading as follows: “No. VI/M7018/63E- 374 Education Department Resolution The 29th March, 1963 Subject:- Equivalence of the various Sanskrit degrees and diplomas awarded by the former Bihar Sanskrit Association and the K.S.D.S. Vishwavidyalaya with those of the degrees and diplomas awarded by the Bihar School Examination Board and other Universities in the State. The question of determination of equivalence of the various Sanskrit degrees and diploma awarded by the K.S.D.S. Vishwavidyalaya, Darbhanga and the former Bihar Sanskrit Association in terms of the degrees and diplomas awarded by the Bihar School Examination Board and other universities of the State has been under the active consideration of the State Government for some time past. With the introduction of the new syllabus for Sanskrit studies in various Sanskrit institutions it was felt all the more desirable that this question be decided as quickly as possible so that holders of Sanskrit degrees, diplomas 5 and certificates may get proper consideration for the purpose of appointment to various public services and admission to various institutions of higher learning. 2. After careful consideration of the matter, the State Government in consultation with the Public Service Commission, Bihar have been pleased to decide the equivalence of various Sanskrit degrees detailed below:- (a) For the purpose of appointment to the Public Service. Name of degrees and diploma of which deemed equivalent Name of Sanskrit For Sanskrit teaching For other degrees diploma and and inspection of appointments certificates. Sanskrit Institutions only. NAVIN SYSTEM Prathma (ii) Middle Middle Uttar Madhyama(ii) Matriculation or Under Matric (without English) S.S.Exam. Uttar Madhyama(ii) Matriculation or Matriculation (with English) S.S.Exam. or S.S.Exam. Shastri(without English) B.A. Pre-University or Higher Secondary Shastri(with English) B.A. I.A. or B.A.(PartI) Acharya(without English) M.A.(Sans.) I.A. or B.A.(PartI) at Shastri stage) Acharya (with English M.A.(Snk.) B.A. at Shastri stage) PRACHIN SYSTEM Name of degrees and diploma to which deemed equivalent. Name of Sanskrit For Sanskrit teaching For other diplomas and and inspection of appointments. certificates. Sanskrit Institutions only. Prathma Middle Middle Madhyama Matric or S.S. Exam. Shastri I.A. or B.A.(Part I) Matriculation or S.S.Exam. Acharya B.A. (Hons)Sanskrit I.A.” had only categorized only one type of Acharya to be equivalent to M.A. (Sanskrit) i.e. those Acharya who had passed with subject of English at Shastri stage. 6 As a matter of fact Mr. Prakash was of the view that even such equivalence of qualification of Acharya with M.A. (Sanskrit) was to be confined only for appointment in Kameshwar Singh Darbhanga Sanskrit University alone and not in any other University. In sum and substance Mr. Prakash has canvassed that this Court must hold that for appointment on the post of Lecturer in Sanskrit in different Universities and its Colleges barring Kameshwar Singh Darbhanga Sanskrit University the person concerned must have passed the Master of Arts (Sanskrit) and not Acharya Examination from any University. Counsel for the University with the help of the counter affidavit had sought to explain that the examination of Acharya of Kameshwar Singh Darbhanga Sanskrit University was treated to be equivalent to Master of Arts (M.A.) and for this purpose he had referred to the communication of K.S.D.Sanskrit University dated 2.5.1989 wherein it was indicated by the Deputy Registrar (Examination) of the University that different examinations conducted by the Sanskrit University was treated to be equivalent to certain general qualifications which was also uniformly recognized by the State Govt. of Bihar, the Govt. of India, Universities Grant Commission and other Universities. He would also submit that the Bihar State University Constituent College Service Commission, therefore, did not commit any error in entertaining the application of respondents no. 3, 4 and 5 as they also were holders of Acharya degree, which in the letter of the University dated 2.5.1989, was shown to be equivalent to M.A. In a separate counter affidavit filed by respondent no.5 details of his academic attainment has been mentioned and it has been stated therein that he had passed his Purva Madhyama Examination in 1985 and Uttar 7 Madhyama Examination in the year 1987 from Sampurnanand Sanskrit Vishwavidyalaya, Varanasi. It has also been mentioned that respondent no.5 had passed his Shastri examination from the said University in the year 1992, whereafter he had also cleared a bridge course for taking admission in Acharya in the University and thereafter had also appeared and passed Acharya Examination in the year 1993. Respondent no.5 in support of his candidature for the post of Lecturer has submitted a certificate as also indicated that he has also cleared the Bihar Eligibility Test (B.E.T.) and thus, had fulfilled the prescribed qualification as required for the post of Lecturer. It has also been indicated that the Respondent no. 4 was subjected to a selection process undertaken by the Commission and on the basis of his performance in the interview he was recommended by the Commission whereafter he was appointed as a Lecturer in Sanskrit in Jai Prakash University, Chapra on 4.11.1996, and has also been continuing in the said University till date. Counsel for respondent no.5 has indicated that the entire super structure built up by the petitioner is based on a wholly misconceived premise that the candidates having qualification of Master of Arts in Sanskrit alone were eligible to file application for the post of Lecturer in Sanskrit in the advertisement of the Commission. He has also indicated that the qualification of Acharya all along has to be treated to be equivalent to Master of Arts in Sanskrit and to lend support to this aspect he has referred to not only the same resolution dated 29.3.1963 produced by the petitioner, as contained in Annexure 3, but has also further placed on record communication of the Govt. of India, Ministry of Education dated 23.1.1964 laying down the equivalence of Sanskrit examination wherein Acharya Examination conducted by Varanasi Sanskrit University, Varanasi, Bihar Sanskrit Association, Patna and 8 K.S.D.Sanskrit University, Darbhanga, M.S.University, Baroda have always been treated to be equivalent to M.A. in Sanskrit. Learned counsel for respondent no.4 in fact has also referred to a list of equivalent examination issued by Sampurnanand Sanskrit University, Varanasi wherein Acharya has been shown to be equivalent to Master in Arts in order to credence to said equivalence of Acharya as Master of Arts in Sanskrit. Though respondents no. 3 and 4 have not appeared nor they have filed their counter affidavit but as the attack of the petitioner is only on the Acharya qualification this Court will proceed that they too had passed Acharya Examination only, specially when the Commission in its affidavit has also clearly mentioned that out of 41 candidates recommended for the post of Lecturer in Sanskrit 38 of them were holding degree of Master of Arts (Sanskrit) and only three of them i.e. respondents no. 3, 4 and 5 were holders of Acharya degree. In the light of the aforementioned materials on record followed by the submissions of the counsel the first and in fact only question which would arise for determination in this case would be as to whether respondents no. 3, 4 and 5 having passed Acharya examination could have been held to be fully qualified for the post of Lecturer in Sanskrit as advertised and filled up on the recommendation of the Commission. Normally advertisement issued by the Commission by itself could have been a settler on the issue but then none of the parties have been able to produce copy of the advertisement and the Commission having already been abolished, this Court cannot expect any of the respondents to produce copy of that advertisement on the basis of which the petitioner or respondents no. 3, 4 and 5 had submitted their application some time in the year 1995. 9 The controversy can however still be resolved in view of the statutory requirement of qualification laid down under the Statutes, inasmuch as the Chancellor by his letter No. BSU-14/77-5561/GS(1) dated 22.7.1977 and its amendment vide letter No. BSU-14/77-1494/GS(1) dated 8.5.1979 has laid down the minimum qualification for the post of University Professor, Reader and Lecturer. Since in this case the issue only is with regard to Lecturer, the relevant portion of the Statute is quoted hereinbelow: “ Lecturer Minimum Qualifications Pay-scale A first or high second class Master’s Rs.700-40-1100-50- degree or equivalent degree of a Foreign 1600 University in the subject concerned, with consistently good academic record followed by a Ph.D. or M.Phil Degree: Provided that in case a candidate with Ph.D. or M.Phil degree is not available or not found suitable, preference shall be given to a candidate having consistently good academic record, but such a candidate, shall have to obtain Ph.D./M. Phil degree within five years of the date of his appointment, failing which he shall cease to earn any future increment until he fulfills the requirements: Provided also that in case of Faculty of education in addition to the above qualifications, he shall possess at least a first or high second class Master Degree in the Faculty of Arts, Science or Commerce or equivalent qualification recognized by the University: Provided further that the qualification for a Lecturer in Music, Home Science and other subjects given below shall be 10 as follows: Essential (i) Lecture in Music Degree or Diploma in Hindustan/ Karnatak/ Western (Vocal or Instrumen- tal) Music, as may be specialized of a recognized institution of repute. Desirable: 1. Bachelor’s degree in any faculty 2. Experience of giving recitals on Radio and in Music conference 3. Teaching experience 4. Knowledge of Hindi (ii) Lecturer in Home Science: At least a second class Master’s degree in Home Science or an M.B.B.S. degree or a Master Degree in an allied subject plus (1) a degree or diploma in Home Science or a recognized or (2) Bachelor’s degree with Home Science or Domestic Science as an optional subject, with two years teaching experience in a college. (iii) Lecturer in Language subject in which no university has so far offered any course leading to the Master’s degree in the subject: At least a high second class Master’s degree in the Faculty of Arts with proficiency in the language concerned, preferably with some publication to his/her credit. Note:-1- In case of a candidate belonging to Scheduled caste, Scheduled Tribe, the requirement of high second class degree at the Master’s degree for the post of Lecturer may be relaxed to bare second class degree. 2. If any special qualifications are to be incorporated for any post or University professor/ Professor/ Reader/ Lecturer, the Vice Chancellor in consultation with the Dean of the Faculty concerned and such other experts including teacher/ teachers of the University, as he deems fit, shall determine the specialized qualifications to be laid down for the particular post, in addition to the qualifications already prescribed in the statutes.” (underlining for emphasis) From a bare reading of the aforementioned Statute it would be 11 clear that the basic requirement for appointment on the post of Lecturer is of a first or High Second Class Master’s degree or equivalent degree of a Foreign University in the subject concerned, which has to be also followed by the consistently good academic record and Ph.D. or M.Phil degree. It has to be noted that this Statute was subsequently amended for incorporating the provisions for passing of Bihar Eligibility Test (B.E.T.) as a condition precedent for appointment on the post of Lecturer as would be clear from the provision of Section 57 of the Bihar State Universities Act. The Master's degree as prescribed in the Statutes therefore cannot be said to be only acquired by a person who has passed only Master of Arts Examination. A Masters' degree would also include any person who had passed any equivalent examination, inasmuch as the Statute itself permits the equivalence of Master's examination, of course from a foreign university. The whole concept, however, of the students of Sanskrit University teaching exclusively in Sanskrit subject and conducting examination upto Acharya level cannot be altogether ignored for the purposes of determination of a specialized Acharya course in which a person is being taught all the branches of Sanskrit education beyond which nothing else is and/or can be taught in Master of Arts Sanskrit course. The M.A. Sanskrit examination in fact is a course being conducted by the Universities dealing also with other teaching and examination and other faculties, namely, other subjects in Arts, Science and Commerce whereas the Sanskrit University undertakes exclusively courses only in teaching and examination of Sanskrit subjects. Therefore, the Acharya examination which is final and last examination conducted by Sanskrit Universities, whether by Sampurnanand Sanskrit University, Varanasi from where respondent no.4 is said to have passed his Acharya 12 examination or K.S.D.Sanskrit University, they all are admittedly specialized centre of learning in the subject of Sanskrit from which the students having completed the Acharya Course can get their Acharya degree only after passing of the prescribed examination. Such Acharya degree, therefore, has all along been accepted by the Govt. of Bihar, the Govt. of India and other agencies to be equivalent to certain standard and in case of Acharya to be equivalent to Master's degree. As a matter of fact the possession of Master's degree whether by way of M.A. Sanskrit or Arts by itself is not the clinching factor, inasmuch as all of them have to again appear for Bihar Eligibility Test as laid down under section 57 of the Bihar State Universities Act. The petitioner does not dispute this fact that respondents no. 3, 4 and 5 were also interviewed by the Commission only after they had successfully completed the Bihar Eligibility Test and at least in case of petitioner and respondent no.5 there are clinching evidence to show that they had appeared and passed the B.E.T.Examination. In a selection process if the persons having different qualification are subjected to a common competitive test, their so called difference in the nature of their qualification also to an extent looses its identity. It is not merely that a candidate holding qualification M.A. Sanskrit or Acharya could be recommended, selected and appointed on the post of Lecturer inasmuch as they had to also appear in Bihar Eligibility Test, a competitive written examination which was followed by interview. The recommendation of 41 candidates including respondent nos. 3, 4 and 5 was infact made on the basis of performance of the candidates in such selection test. Judged from all these angles when there has been a long uninterrupted and continued practice of treating Acharya as equivalent to 13 Masters course and there is a provision in the Statute for also making the candidate eligible by holding Masters degree or an equivalent degree, there would be no difficulty in coming to the conclusion that respondents no. 3, 4 and 5 did possess the requisite qualification for the post of Lecturer in Sanskrit. The submission of Mr. Prakash that it is the Commission’s affidavit in paragraph 13 which would go to show that the Commission took a decision only in the year 1989 to treat the degree of Acharya as equivalent has to be read with the letter of the University as placed by the Commission in its affidavit wherein there is no such inkling that such equivalence started only on 2.5.1989. As a matter of fact the said communication dated 2.5.1989 to one S.N.Mishra was only with regard to equivalence of qualification wherein it was clarified as follows: &%% dkes'oj flag njHkaxk laLd`r fo'ofo|ky; dkes'ojuxj] njHkaxk%%& lsok esa] Jh ,l0,u0 feJk i0 943@89 xzk0$iks0 f'kdfu;k fnukad 2@5@89 lklkjke] jksgrkl egk'k;] dkes'oj flg njHkaxk laLd`r fo'ofo|ky;] njHkaxk }kjk vk;ksftr fuEukafdr ijh{kkvksa dh led{krk fcgkj ljdkj] Hkkjr ljdkj fo'ofo|ky; vuqnku vk;ksx] fnYyh ,oa vU; fo'ofo|ky;ksa }kjk bl izdkj ekuh xbZ gSA 1- e/;ek@lesfdr e/;ek@mRrjk e/;ek@ eSfVzd uohu e/;ek@uohuksRrj e/;ek 2- mi'kkL=h vkbZ0 ,0 3- 'kkL=h ch0 ,0 4- 'kkL=h izfr"Bk ch0 ,0 izfr"Bk 5- vkpk;Z ,e0 ,0 6- vk;qZosnkpk;Z ch0,0,e0,l0 ,e0ch0ch0,l0 izk.kkpk;Z ch0,0,e0,l0 7- fo"k;kfjf/k ih0,p0Mh0 8- fo"k;kpLifr Mh0 fyV~- vr,o fuosnu gS fd vius foHkkx esa fu;qDr ,oa fu;qDr fd, tkusokyksa ds lEcU/k esa bl fo'ofo|ky; dh mijkafdr ijh{kkvksa dh led{krk ekuh tk;] ftlls fd bl fo'ofo|ky; ls mRrhZ.k Nk=ksa dh fu;qfDr ikus esa dksbZ vlqfo/kk u gksA vkidk fo'oklh g0@& ;ksxsUnz feJ mi dqylfpo] ijh{kk 14 Once the content of the aforementioned letter is perused and appreciated in its entirety it would become clear that the University had reconsidered its earlier decision based on equivalence of qualification being recognized by the Govt. of Bihar, Govt. of India and the University Grants Commission etc. As a matter of fact the proof of the same has been furnished by respondent no.5 by enclosing the decision of the Govt. of Bihar of the year 1963 and of the Govt. of India of the year 1961 which also go to show that at all point of time the equivalence of Acharya was treated to equivalent to Master in Arts. The last part of the submission of Mr. Prakash that such equivalence made by the Govt. of Bihar in the year 1963 was meant only for Sanskrit University does not seem to be logically and factually correct, inasmuch as the two headings having been provided, one for teaching and other for other appointments. It is the word teaching which has to be treated in generic sense as it would be found in the chart, already quoted above, that the Acharya was treated to be equivalent to M.A. Sanskrit. Once this Court would come to the aforesaid conclusion, there would be also no difficulty in brushing aside the rest of the submission of the learned Counsel for the petitioner with regard to Acharya being only similar and not