IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 2115 of 2008. Reserved on 15.11.2010. Decided on 29.11.2010. _____________________________________________________ Suman Sharma. …Petitioner. -Versus- The State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the petitioner. : Mr. Dilip Sharma, Advocate. For the respondents : Mr. P.M. Negi, Deputy Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: The material facts necessary for the adjudication of this petition are that the petitioner passed her matriculation examination from Himachal Pradesh Board of School in the year 1986. She obtained Teachers’s Certificate Higher from Karnatka Secondary Education Examination Board in the year 1988. Respondent-State decided to fill up the post of J.B.T. teachers in various districts. Petitioner’s name was also sponsored by the employment exchange to the Himachal Pradesh Public Service Commission. She was issued call letter on 26.12.1989, pursuant to which, she appeared before the interview Board on 12th January, 1990. She was also offered appointment on 7th April, 1992. She was issued one month’s notice on 1st March, 1993. She preferred an Original Application No. 481 of 1993 before the 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. learned erstwhile Himachal Pradesh Administrative Tribunal on 1st March, 1993. She was granted interim relief on 22.03.1993. She was confirmed on 13.05.1999 w.e.f. 01.10.1998 and was subsequently promoted as Head Teacher on 20.07.2006. This Court passed orders on 30.12.2008, 21.04.2009, 08.05.2009 and 13.07.2009 to ascertain whether any decision has been taken by the respondent-State with regard to the equivalence of the certificate obtained by the petitioner from Karnatka Secondary Education Examination Board or not. The Court has passed the following order on 13.07.2009: “The stand of the State is that the degree/certificate which the petitioner has obtained from Karnatka Secondary Education Examination Board is not recognized by the State of Himachal Pradesh. The State was directed to produce the copy of the decision on record. However, the State has failed to do so despite opportunities granted to it repeatedly. In these circumstances, let a responsible Officer, not below the rank of Additional Secretary (Education) remain present tomorrow to explain the same. List on 14.07.2009.” 2. Thereafter, the Court has passed the order on 14.07.2009. The operative portion of the same reads thus: “Accordingly, the State Government is directed to decide the issue objectively. Needless to add the decision shall be guided by the instructions issued by the Central Government in the year, 1952 (Annexure A-8), as well as instructions laid down in Handbook on Personnel Matters, 2nd Edition, Volume-1. The State shall also take into consideration that the diploma awarded in the present case is by the Board created by the Act of State of Karnatka. The decision shall be placed on record within a period of four weeks from today.” 3. The Court was informed by the learned Deputy Advocate General that the State has taken a decision on 07.11.2009 not to recognize JBT Course from Karnatka Secondary Education Examination Board for the purpose of employment in Himachal Pradesh. Mr. Dilip Sharma, learned counsel for the petitioner sought four weeks time to seek instructions. Thereafter, he has moved an application bearing C.M.P. No. 958 of 2009 under Order 6 Rule 17 of the Code of Civil Procedure, seeking amendment of the petition to assail the decision dated 07.11.2009. The same was allowed by this Court on 22.12.2009 and the amended petition was permitted to be taken on record. The Principal Secretary (Education) was directed by this Court on 07.05.2010 to look into the matter in view of the judgment rendered by the Hon’ble Supreme Court in Dr. B.L. Asawa Versus State of Rajasthan, AIR 1982, Supreme Court, 933. Thereafter, the learned Deputy Advocate General has placed on record copy order dated 12.05.2010, whereby the matter was re-looked and fresh decision was taken. 4. According to Mr. Dilip Sharma, learned counsel for the petitioner, once the certificate has been issued by a duly constituted Karnatka Secondary Education Examination Board, the same is required to be treated as valid certificate for the purpose of employment. He also contended that neither the decision dated 07.11.2009 nor the decision taken on 12.05.2010 is in conformity with law. He also argued that the decisions taken on 07.11.2009 and 12.05.2010 shall apply prospectively and the appointment letter issued to the petitioner is valid. In other words, his submission is that the decisions taken on 07.11.2009 and 12.05.2010 shall not apply retrospectively. He lastly contended that his client is working since 07.04.1992 in the respondent Board and has been confirmed and further promoted to the post of Head Teachers on 20.07.2006. 5. Mr. P.M. Negi, learned Deputy Advocate General has supported the decisions dated 07.11.2009 and 12.05.2010. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. Petitioner has been found suitable by the Himachal Pradesh Public Service Commission, which led to her appointment on 07.04.1992. Petitioner’s appointment was on regular basis and despite that she had been issued one month’s notice on 1st March, 1993. She initially worked as J.B.T. teacher and thereafter as Head Teacher on the basis of interim order passed by the learned Tribunal. Petitioner has obtained Teachers Certificate Higher from Karnatka Secondary Education Examination Board. The Karnatka Secondary Education Examination Board has been constituted under the Act. 8. It is apparent from the pleadings of the parties that the respondent-State had taken a decision not to recognize the degrees/certificates/diplomas issued by Karnatka Secondary Examination Board on 07.11.2009. The respondent-State was directed to have a re-look into the matter, however, the same decision was reiterated on 12.05.2010. The respondent-State has not taken into consideration at all the syllabus prescribed by Karnatka Secondary Education Examination Board and other Institutions recognized by the State of Himachal Pradesh. So far as the decision dated 07.11.2009 is concerned, it was neither speaking nor detailed. The decision dated 07.11.2009 reads thus: “I am directed to refer to your letter No. EDN-C- F(1)-2/2009 dated 7th November, 2009 on the subject cited above and to say that the matter has been examined in the Department of Personnel based on the views/facts conveyed by you and it has been decided not to recognize JBT Course from Karnatka Secondary Education Examination Board for the purpose of employment in Himachal Pradesh.” 9. Since the decision was neither speaking nor detailed, this Court had directed the Principal Secretary (Education) to have a re-look into the matter and thereafter, as noticed above, the order dated 12.05.2010 was issued. 10. Mr. Dilip Sharma, learned counsel for the petitioner, during the course of hearing, has drawn the attention of the Court to office memorandum dated 30th September, 1952 (Annexure P- 8), which reads thus: “The undersigned is directed to say that it has been decided, in consultation with the Union Public Service Commission, that in the case of degrees/diplomas awarded by Universities in India which are incorporated by an Act in India, no formal orders recognizing such degrees/diplomas need be issued by Government. Such degrees/diplomas should be recognized automatically, for the purpose of employment under the Central Government. 2. Similarly, no orders are required for the formal recognition of any certificate or diploma awarded by Boards of Secondary and Intermediate Education duly set up and recognized by the Central Government or the State Government. 3. If, however, there is any doubt whether a particular University is or is not incorporated by an Act of the Legislature, or the degree or diploma to which a specified degree or diploma should be regarded as equivalent, a reference should be made to the Ministry of Education for clarification. Doubts, if any, concerning Education Boards may be similarly clarified. 4. These orders have been issued in consultation with the Comptroller and Auditor General of India in their application to appointments under the Indian Audit and Accounts Department. 11. In the decision taken on 12.05.2010, there is complete mis-reading of office memorandum dated 30th December, 1952. It is apparent from paragraph No. 2 of the office memorandum dated 30th September, 1952 that no orders are required for the formal recognition of any certificate or diploma awarded by Boards of Secondary and Intermediate Education duly set up and recognized by the Central Government or the State Government. It shows lack of application of mind by the decision making authority. The other ground assigned in paragraph No. 4 of the decision dated 12.05.2010 is that in Himachal Pradesh, the entrance test is prescribed for filling up the post of J.B.T.. However, fact of the matter is that in Karnatka, there is no separate examination for entrance. The certificate awarded by a duly set-up Board cannot be declared as invalid. What was required to be seen by the decision making authority, was whether the certificate issued by the Karnatka Board was duly established under the Act or not. It was necessary for the decision making authority to compare at least syllabus prescribed by the Karnatka Secondary Education Board vis-à-vis Board of Himachal Pradesh and other Boards recognized by the State of Himachal Pradesh for J.B.T. courses. The other ground assigned by the decision making authority is that the candidates who passes J.B.T. courses from State of Himachal Pradesh are well aware about the local language, culture, curriculum and syllabus. This is also not a cogent reason to deny the recognition to a particular course. As per the norms, only the preference is given by the State to the candidates knowing the local culture, language etc.. The petitioner belongs to the State of Himachal Pradesh. She has passed her matriculation examination from the State of Himachal Pradesh and was well conversant with the local language and culture etc. of the State of Himachal Pradesh. It is true that it is for the State or the Institution concerned to grant equivalence etc. to degrees/diplomas/ certificates for the purpose of employment, however, it is equally true that the decision should not be arbitrary or unreasonable. In this case, the decision not to treat the certificate obtained by the petitioner from Karnatka Secondary Education Board, is arbitrary, as discussed hereinabove. The certificate awarded to the petitioner is by the Board duly set up under the State Act. 12. Their Lordships of the Hon’ble Supreme Court in Dr. B.L. Asawa Versus State of Rajasthan and others, AIR 1982 Supreme Court, 933 have held that a Post-graduate Medical Degree granted by a University duly established by statute in India and which has also been recognized by the Indian Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country. Their Lordships have held as under: “11. The University of Bihar at Muzaffarpur is one duly established by statute and it is fully competent to conduct examinations and award degrees. The Degree of Doctor of Medicine (Forensic Medicine) M. D. (Forensic Medicine) of the University of Bihar is included in the Schedule to the Indian Medical Council Act, 1956 as a degree fully recognised by the Indian Medical Council which is the paramount professional body set up by statute with authority to recognise the medical qualifications granted by any University or Medical Institution in India. A Post- graduate Medical Degree granted by a University duly established by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country. In the absence of any express provision to the contrary, such a degree does not require to be specifically recognised by other Universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to any post in such a state. The Division Bench of the High Court was, in our opinion. manifestly in error in thinking that since the post- graduate degree possessed by the appellant was not one obtained from the University of Rajasthan, it could not be treated as a valid qualification for the purpose of recruitment in question in the absence of any specific order by the University of Rajasthan recognising the said degree or declaring it as an equivalent qualification. It is common ground before us that the University of Rajasthan does not conduct post-graduate examinations in the subject of Forensic Medicine and it does not award the degree of M. D. (Forensic Medicine). In order that there. should be scope for declaration of 'equivalence' of a qualification obtained from another body, there can be declaration -of equivalence only as between a qualification obtained from a body different from the one awarded by the concerned University. When the University of Rajasthan does not conduct any examination for the award of the degree of M. D. (Forensic Medicine), there cannot be any question of declaration of 'equivalence' in respect, of such a degree awarded by any University. Unfortunately, the State Public Service Commission as well as the Division Bench of the High Court failed to notice this crucial aspect. We may also point out that the declaration of 'equivalence' referred to in S. 23A of the Rajasthan University Act as well as in clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances can only be in respect of qualifications other than basic or Post-graduate degrees awarded by other statutory Indian Universities in the concerned subjects. In the case of a Post-graduate degree in the concerned subject awarded by a statutory Indian University, no recognition or declaration of equivalence by any other University is called for, This is all, the more so in the case of a medical degree basic as well as Post- graduate that is awarded by a statutory Indian University and which has been specifically recognised by the Indian Medical Council. 13. In the instant case, besides the authoritative law laid down by their Lordships of the Hon’ble Supreme Court, the office memorandum has been issued by the State Government, as noticed above, on 30th September, 1952 (Annexure P-8), whereby no separate orders are required for the formal recognition of any certificate or diploma awarded by Boards of Secondary and Intermediate Education duly set up and recognized by the Central Government or the State Government. The notification dated 30th September, 1952 (Annexure P-8) has not been superseded/rescinded till date. 14. The matter is required to be considered from another angle. In case the duly awarded degrees/certificates/diplomas are not equated/treated as equivalent by a particular State, it would lead to balkanization. It would also be against the federal structure of the Constitution, which is the basic feature of the Constitution. The degrees/diplomas/certificates issued by a duly recognized Institutions set up by the Central Act or State Act are to be treated valid for the purpose of education/employment. 15. Mr. P.M. Negi, learned Deputy Advocate General has also drawn the attention of the Court to letter dated 16th January, 1985. A bare perusal of this letter suggests that no decision has ever been taken by the State to de-recognize or not to treat the degrees/diplomas/certificates awarded by the Karnatka Secondary Education Board as valid. The names of the Institutes, whose J.B.T. courses have been de-recognized by the State, have been specifically mentioned therein. The name of Karnatka Secondary Education Board has not been mentioned therein. 16. Petitioner has not concealed any material facts at the time when she had applied for the post in question. She had supplied all the documents, as required, pursuant to which she has been appointed on 7th April, 1992. She was appointed on regular basis and her services could not be terminated, only by issuing one month’s notice on 1st March, 1993. When the notice was issued to the petitioner on 1st March, 1993, no decision has been taken by the State either to recognize or not the certificates obtained by the petitioner. The decision was taken by the respondent-Board only on 07.11.2009 followed by decision dated 12.05.2010. The rights which had accrued to the petitioner on the basis of the certificate obtained by her in 1988 cannot be destroyed by applying the two decisions retrospectively. Clause-7 of the appointment letter of the petitioner is like “Henry-VIII Clause”, as discussed by their Lordships of the Hon’ble Supreme Court in Central Inland Water Transport Corporation Limited and another Versus Brojo Nath Ganguly and another, (1986) 3 Supreme Court Cases, 156. Their Lordships have held as under: “76. Under which head would an unconscionable bargain fall? If it falls under the head of undue influence, it would be voidable but if it falls under the head of being opposed to public policy, it would be void. No case of the type before us appears to have fallen for decision under the law of contracts before any court in India nor has any case on all fours of a Court in any other country been pointed out to us. The word "unconscionable" is defined in the Shorter Oxford English Dictionary, Third Edition, Volume II, page 2288, when used with reference to actions. etc. as "showing no regard for conscience; irreconcilable with what is right or reasonable". An unconscionable bargain would, therefore, be one which is irreconcilable with what is right or reasonable. 93. The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non-suited. The case of A. Schroeder Music Publishing Co. Ltd. v. Macaulay (1974 1 WLR 1308), however, establishes that where a contract is vitiated as being contrary to public policy, the party adversely affected by it can sue to have it declared void. The case may be different where the purpose of the contract is illegal or immoral. In Kedar Nath Motani v. Prahlad Rai (1960) 1 SCR 861 : (AIR 1960 SC 213) reversing the High Court and restoring the decree passed by the trial court declaring the appellants' title to the lands in suit and directing the respondents who were the appellants' benamidars to restore possession, this Court, after discussing the English and Indian law on the subject, said (at page 873) (of SCR) : (at Pp. 218-219 of AIR) : "The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by Williston and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff's conduct, and he should not be allowed to circumvent the illegality by resorting to some subterfuge or by misstating the facts. It however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the. plea of the defendant should not prevail." The types of contracts to which the principle formulated by us above applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the court. They are opposed to public policy and require to be adjudged void. 112. In the result, both these Appeals fail and are dismissed but the order passed by the Calcutta High Court is modified by substituting for the declaration given by it a declaration that clause (i) of Rule 9 of the "Service, Discipline and Appeal Rules 1979" of the Central Inland Water Transport Corporation Limited is void under S. 23 of the Contract Act, 1872, as being opposed to public policy and is also ultra vires Art. 14 of the Constitution to the extent that it confers upon the Corporation the right to terminate the employment of a permanent employee by giving him three months notice in writing or by paying him the equivalent of three months basic pay and dearness allowance in lieu of such notice.” 17. Respondents knew about the qualification obtained by the petitioner when she submitted her application for consideration for the post of J.B.T. Petitioner had been working for the last 18 years as J.B.T. teacher and her services cannot be terminated on the basis of the decision dated 07.11.2009 and 12.05.2010, which according to the Court are not valid. Whether to recognize a particular degree/certificate/diploma will fall in the realm of policy decision. However, the policy decision has to be taken in conformity with Articles 14 and 16 of the Constitution of India. The decision is required to be taken after taking into consideration all the relevant material available on record. 18. Their Lordships of the Hon’ble Supreme Court in Kumari Shrilekha Vidyarathi and others versus State of U.P. and others (1991) 1 SCC 212 have held that Article 14 applies also to matters of governmental policy and if the policy or any action of the Government, even on contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. Their Lordships have held as under: “It can no longer be doubted at this point of time that Art. 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would beunconstitutional. (See Ramana Dayaram, Shetty v. The International Airport Authority of India (1979) 3 SCR 1014: (AIR 1979 SC 1628) and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir (1980) 3 SCR 1338: (AIR 1980 SC 1992)). In Col. A. S. Sangwan v. Union of India, 1980 (Supp) SCC 559: (AIR 1981 SC 1545), while the discretion to change the policy in exercise of the executive power, when not trammeled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Art. 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Art. 14 and the requirement of every State action qualifying for its validity on this touch-stone, irrespective of the field of activity of the State, has long been settled. Later decisions of this Court have reinforced the foundation of this tenet and it would be sufficient to refer only to two recent decisions of this Court for this purpose. In Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay (1989) 3 SCC 293 : (AIR 1989 SC 1642), the matter was re-examined in relation to an instrumentality of the State for applicability of Art. 14 to all its actions. Referring to the earlier decisions of this Court and examining the argument for applicability of Art. 14, even in contractual matters, Sabyasachi Mukharji, J. (as the learned Chief Justice then was) ' speaking for himself and Kania, J., reiterated that every action of the State or an instrumentality of the State must be informed by reason......... actions uninformed by reason may be questioned as arbitrary in proceedings under Art. 226 or Art. 32 of the Constitution. Ranganathan, J. did not express any opinion on this point but agreed with the conclusion of the other learned Judges on the facts of the case. It is obvious that the conclusion on the facts of the case could not be reached by Ranganathan, J. without examining themand this could be done only on the basis that it was permissible to make the judicial review. Thus, Ranganathan, J. also applied that principle without