DR. SRIDIP CHATTERJEE versus DR. GOPA CHAKRABORTY & ORS. on 6 August 2019

1. Leave granted.

2. This appeal has been preferred against the impugned judgmentdated December 16, 2016, passed by the Division Bench of the HighCourt of Calcutta, by which the High Court has dismissed the appealpreferred by the appellant Dr. Sridip Chatterjee and confirmed thejudgment dated April 16, 2014, passed by the learned Single Judgewhereby appointment of the appellant to the post of Assistant Professorin Physical Education (Yoga Therapy) under the respondent Universitywas set aside.

3. The subject matter of challenge in this appeal is the selectionand subsequent appointment of appellant to the post of Assistant Professorin Physical Education (Yoga Therapy) of the Jadavpur University.

4. Brief facts, giving rise to the present appeal as emerging fromthe material on record, are that the respondent-University published anadvertisement on November 22, 2012 inviting applications from suitablecandidates for the post of Assistant Professor in Physical Education(Yoga Therapy).

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A5. The qualification prescribed in the advertisement for the saidpost is Masters in Yoga/Yoga Therapy or Masters in Physical Educationwith Post Graduate Diploma in Yoga/Yoga Therapy with at least 55%(or an equivalent grade in a point scale wherever grading system isfollowed). The appellant applied for the said post and appeared in theselection process with other candidates. The appellant appeared beforeBthe Selection Committee consisting of Dr. Arun Kumar Uppal, Prof.Rajesh Tripathi, Prof. Krishna Banerjee, Dr. Sudip Sunder Das, Prof.Sanat Kr. Naskar and Dr. A.N. Dey for an interview on March 26,2013. He was selected to the said post on March 28, 2013.

6. Respondent No. 1 submitted a representation before respondentCNo.3 challenging the eligibility of the appellant to participate in theselection process as according to respondent No.1, appellant did notfulfil the essential qualification for the said post. Subsequently, in replyto an application under the Right to Information Act, 2005, respondentNo. 1 came to know that the appellant had already been appointed to theDsaid post by a letter of appointment dated March 28, 2013.

7. Respondent No. 1, being aggrieved by the appointment ofappellant to the post of Assistant Professor in Physical Education (YogaTherapy), filed writ petition in the High Court of Calcutta. The learnedSingle Bench of the High Court set aside the appointment of the appellantEand held that the duty of the University is to form an EquivalenceCommittee, which must comprise experts and on the basis of the reportsgathered from the institute awarding a certain degree. The committeeof the University on its own should not have come to a conclusion thatthe qualification possessed by a candidate is equivalent or not. It wasfound that the University has not clarified that the appellant had theFrequisite qualification to be appointed for the said post as University wasrequired to come to a conclusion that Post Graduate Diploma in YogaEducation is equivalent to the Post Graduate Diploma in Yoga/YogaTherapy. It was held that eight candidates were considered by theSelection Committee but why the appellant was considered best even inthe teeth of the apparent incongruity in the educational qualificationGpossessed by him and laid down in the advertisement. The Universityshould have found that the Diploma in Yoga Education was equivalent toPost Graduate Diploma in Yoga/Yoga Therapy. In view of the said fact,the Court directed the University to take appropriate steps for a freshselection from amongst the candidates who had applied pursuant to theHadvertisement in accordance with law.

8. Aggrieved against the said judgment, the appellant availed theremedy of intra-court appeal. The learned Division Bench dismissed theappeal and held as under:

“Admittedly, the appellant did not possess Post Graduate Diplomain Yoga/Yoga Therapy with at least 55% marks which was one ofthe essential criteria for participating in the selection process forthe post of Assistant Professor in Physical Education (YogaTherapy). It was also not in dispute that according to the replydated April 12, 2013, there was no difference in between theDiploma in Yoga Education and Post Graduate Diploma in YogaEducation. But the requisite qualification required for the post inquestion, as mentioned in the advertisement, was Post GraduateDiploma in Yoga/Yoga Therapy, and not Post Graduate Diplomain Yoga Education. No material was brought on record to showthat the Diploma in Yoga Education was equivalent to PostGraduate Diploma in Yoga/Yoga Therapy. Therefore, there wasno error in the decision making process of the learned Single Judgein arriving at a conclusion that the above reply did not resolve thedispute.”

9. Still aggrieved, the appellant is in appeal before this Court.

10. The University has filed an affidavit dated May 01, 2019 beforethis Court wherein, a report of Equivalence Committee dated May 24,2016 has been produced. Such Equivalence Committee was constitutedin terms of the directions of the learned Single Bench. The Committeeobserved as under:

“1. Going by the contents of the course, the degree in M.Sc.(Human Consciousness and Yogic Sciences) and Master’s in Yoga/Yoga Therapy are equivalent.

2. Based on the following points the committee opines that P.G.Diploma in Yoga Therapy and Diploma in Yoga Education areequivalent:

(i) Qualifying examination for the said courses is any graduatedegree;

(ii) The papers taught in the said courses are almost are thesame with the only difference being that the P.G. Diplomain Yoga Therapy (of J.U.) has been under semester-system A

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Awhereas Diploma in Yoga Education (of KaivalyadhamaSMYM Samiti) has been under annual-system;

(iii) Contents of the papers taught in the said courses are almostthe same;

(iv) Some flexibilities in the curriculum frame work for NCTEBprograms are allowed by itself, including the said courses;

3. The committee also finds the degree/diploma in Yoga coursesof other applicants as equivalent to the essential qualificationsspecified in the advertisement A2/C/2/2012 dt. 22.11.2012.”

C11. Learned counsel for the appellant contends that appellant hasa Master Degree in Physical Education and Post Graduate Diploma inYoga Education. The requirement for appointment to the post is PostGraduate Diploma in Yoga or Yoga Therapy. The relevant conditionreads as under:

D“Master’s in Yoga/Yoga Therapy or Master’s in PhysicalEducation with Post Graduate Diploma in Yoga/Yoga Therapywith at least 55% marks (or an equivalent grade in a point scalewherever grading system is followed).”

12. Learned counsel for the appellant has filed the statement givenEby Principal and Joint Director of the Kaivalyadhama Shriman MadhavaYoga Mandir (S.M.Y.M.) Samiti vide Annexure S-11 and submitted thatthe qualification possessed by the appellant meets the requirement ofPost Graduate Diploma in Yoga or Yoga Therapy. It is contended thatdifferent institutes grant Diploma with different nomenclature. TheDiploma in Yoga Education is nothing but Diploma in Yoga, therefore,Fthe appellant satisfies the eligibility requirement. Though, the SelectionCommittee has not specifically recorded that the qualification possessedby the appellant is in terms of the conditions of advertisement but themembers of the Selection Committee were experts in the subject andonce the appellant was appointed, it necessarily means that they wereGsatisfied with the qualification possessed by the appellant as one satisfyingthe eligibility conditions advertised. It is further contended that in termsof the directions issued by the learned Single Bench, the University hasconstituted an Equivalence Committee and has found that the Diplomacertificate produced by the appellant satisfies the eligibility conditions,Htherefore, even if there were some procedural irregularities in not recording the eligibility of the appellant in the initial minutes of theSelection Committee, such irregularities stand cured when theEquivalence Committee considered the appellant eligible for appointment.It is also contended that the suitability of the candidate in terms of eligibilityconditions advertised is for the experts to consider and once expertshave found that the appellant possesses the required educationalqualification, the Court while exercising power of judicial review, couldnot take a different view that the qualification possessed by the appellantdoes not meet the qualification prescribed in the advertisement. Thereliance is placed upon judgment of this Court in B.C. Mylarappa v.Dr. R. Venkatasubbaiah & Ors.[1], wherein this Court held as under:

“26. Admittedly, there is nothing on record to show any mala fidesattributed against the members of the expert body of the University.The University Authorities had also before the High Court in theirobjections to the writ petition taken a stand that the appellant hadfully satisfied the requirement for appointment. In this view of thematter and in the absence of any mala fides either of the expertbody of the University or of the University Authorities and in viewof the discussions made hereinabove, it would be difficult to sustainthe orders of the High Court as the opinion expressed by theBoard and its recommendations cannot be said to be illegal, invalidand without jurisdiction.”

13. In Rajbir Singh Dalal (Dr.) v. Chaudhari Devi LalUniversity, Sirsa & Anr.[2], this Court held as under:

“29. It may be mentioned that on a clarification sought from UGCwhether a candidate who possesses a Masters degree in PublicAdministration is eligible for the post of Lecturer in PoliticalScience and vice versa, UGC wrote a letter dated 5-3-1992 to theRegistrar, M.D. University, Rohtak stating that the subjects ofPolitical Science and Public Administration are interchangeableand interrelated, and a candidate who possesses Masters degreein Public Administration is eligible as Lecturer in Political Scienceand vice versa. Thus, this is the view of UGC, which is an expertin academic matters, and the Court should not sit in appeal overthis opinion and take a contrary view.”

1 (2008) 14 SCC 306

2 (2008) 9 SCC 284

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1 (2008) 14 SCC 306

2 (2008) 9 SCC 284

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A14. On the other hand, learned counsel for the respondentscontended that it is not permissible for the Selection Committee to changethe selection criteria midway. Since the eligibility condition as per theadvertisement was Diploma in Yoga or Yoga Therapy, therefore, Diplomain Yoga Education could not be treated as a qualification in terms of theconditions of the advertisement. Reliance is placed upon judgment ofBthis Court in Prakash Chand Meena & Ors. v. State of Rajasthan &Ors.[3] wherein it was held that the Court could not go into the questionwhether a degree is equivalent or superior to the qualification prescribedin the advertisement.

C15. We have heard learned counsel for the parties and find thatthe judgment of the Division Bench of the High Court is not sustainablein law.

16. The condition of the advertisement was Diploma in Yoga orYoga Therapy. The appellant possesses Diploma in Yoga Education.DThe Court in exercise of power of judicial review could not come to aconclusion that the Diploma possessed by the appellant does not satisfythe eligibility conditions advertised. The Court has only looked to thebare nomenclature of Diploma possessed by the appellant. No doubt, inthe proceedings of the Selection Committee, it is not recorded that theDiploma possessed by the appellant is equivalent to the educationalEqualifications advertised but the Selection Committee was comprised ofexperts in the subjects and, therefore, even if it was not specificallymentioned, the decision could not have been interfered with only becausethe Court finds that Diploma in Yoga Education is not the same as Diplomain Yoga or Yoga Therapy.F

17. On the other hand, the judgments referred to by the learnedcounsel for the respondents are in respect of change of eligibility criteriamidway of the selection process. Such is not the fact in the presentcase. The qualification prescribed in the advertisement remains thesame i.e. Post Graduate Diploma in Yoga or Yoga Therapy. It is onlyGDiploma in Yoga Education which has been considered as equivalent toDiploma in Yoga or Yoga Therapy. Not only the Selection Committeehas found the appellant suitable but even the Equivalence Committee,constituted in terms of the directions of the learned Single Bench, alsofound the Diploma of the appellant as the one satisfying the requirementH3 (2015) 8 SCC 484

DR. SRIDIP CHATTERJEE v. DR. GOPA CHAKRABORTY[HEMANT GUPTA, J.]

of the advertisement. Therefore, once the Experts have taken a decisionthat the appellant meets the eligibility conditions of the advertisement,the Court could not have interfered with and set aside the appointmentof the appellant.

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18. Learned counsel for the respondents has referred to acurriculum of Kaivalyadhama to argue that the Post Graduate DiplomaBin Yoga Education and Post Graduate Diploma in Yoga/Yoga Therapyare different. We do not find that such curriculum can be relied upon bythe respondents to hold that the appellant is not eligible when the committeeof experts have found the appellant eligible.

19. Consequently, we allow the present appeal and set aside thejudgment passed by the High Court. The appellant shall be reinstated inservice forthwith with all consequential benefits, seniority and pay fixationbut will not be entitled to pay for the period he was out of service. Noorder as to costs.

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Divya Pandey

Appeal allowed.

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