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CASE NO.: Appeal (civil)  1970 of 2007

PETITIONER: BIHAR PUBLIC SERVICE COMMISSION & ORS

RESPONDENT: KAMINI & ORS

DATE OF JUDGMENT: 16/04/2007

BENCH: C.K. THAKKER & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 1970 of 2007 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 14469 OF 2003

C.K. THAKKER, J.

Leave granted. This appeal is filed against the judgment rendered  by a Division Bench of the High Court of Judicature at  Patna on May 13, 2003 in Letters Patent Appeal No. 381  of 2003. By the said judgment, the Division Bench  allowed the appeal filed by the respondent herein-original  petitioner and set aside the judgment of the learned  Single Judge, dated April 1, 2003 in CWJC No. 12618 of  2002. Necessary facts leading to the filing of present  appeal by the Bihar Public Service Commission  (’Commission’ for short) are that the first respondent   Miss Kamini, passed her B.Sc. (Hons.) in the year 1989  in Chemistry with Zoology and Botany in First Class from  Tilka Manghi Bhagalpur University in the State of Bihar.  Her principal/main subject in B.Sc. Degree was  Chemistry, alongwith Zoology and Botany as  subsidiary/optional subjects. An advertisement was  issued on December 21, 1999 by the Commission inviting  applications from eligible candidates for appointment to  the post of District Fisheries Officer-cum-Chief Executive  Officer in the pay scale of Rs.6500-10500/- in the Bihar  Fisheries Service Class-II. It was stated therein that the  candidate must have qualifications of B.Sc. Zoology with  a two years Diploma in Fisheries Science from Central  Institute of Fisheries Education, Mumbai or a Graduate  Degree in Fisheries Science (B.F.S.C.) from a recognized  University or M.Sc. (Inland Fisheries Administration &  Management) with Zoology from the Central Institute of  Fisheries Education, Mumbai. Though the first  respondent was not eligible as she did not possess the  requisite qualifications of B.Sc.-Zoology, inadvertently, a  letter was issued by the Commission on October 17,  2002 calling upon her to appear before the Interview  Board on November 5/6, 2002. On closure scrutiny of  the mark-sheet, however, it was found that she was not  having Hons. Degree in Zoology and was not eligible for  the post. On 5th November, 2002, therefore, when she  appeared for the interview, she was informed that she  was not possessing requisite educational qualifications

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and her candidature had been rejected. She made a  representation on November 6, 2002 to the Chairman of  the Commission to reconsider the decision of cancellation  of her candidature. Since there were some cases of this  nature, an Expert Committee was constituted by the  Commission to consider a question whether a student  can be called a Graduate in Zoology subject if he/she    has cleared the Degree Examination with Zoology as a  subsidiary/optional subject and not the principal  subject. The Committee submitted its Report on  November 24, 2002. As per the said Report, a student  will be considered a Graduate in the subject if he/she  has obtained the Degree in that subject at the Graduate  level. The first respondent, as per the said report, was  found ineligible. Her cancellation was, therefore, held  proper. The first respondent was not satisfied with the  Report of the Expert Committee and challenged the said  decision by filing a writ petition in the High Court of  Judicature at Patna. The learned single Judge dismissed  the petition but the Letters Patent Appeal was allowed by  the High Court. The Commission has challenged the said  decision of the Division Bench. The learned counsel for the appellant submitted  that the Division Bench of the High Court was wholly  wrong in allowing the appeal and in setting aside the  order passed by the learned Single Judge and in ignoring  the Report submitted by the Expert Committee. He also  submitted that even otherwise, the action of the  Commission could not be said to be illegal or contrary to  law. When the requisite educational qualification was   B.Sc. Zoology, such person must have passed B.Sc. with  Zoology as principal/main subject and not as a  subsidiary or optional subject. Admittedly, the first  respondent had passed B.Sc. with Chemistry as principal  subject and Zoology as optional/subsidiary subject. She,  therefore, could not be held qualified and the action of  the Commission was in consonance with law and was  legal and proper. It was also submitted that after the  representation was received from the first respondent,  the Commission constituted an Expert Committee for  considering the grievance of the first respondent and  even the Expert Committee opined that in its opinion i.e.  in the opinion of the Committee, a student would be  called Graduate in the subject if he/she has Honours in  that subject at the Graduate level. If the subject is  subsidiary (or side subject), he/she could not be called a  Graduate in that subject. It was because a Honours  student at the Graduate level studies eight papers in that  subject whereas he/she studies only two papers in  subsidiary subject. In accordance with the Report, the  action was taken which was proper. The counsel also  submitted that the learned Single Judge was wholly right  in upholding the contention of the University that the  first respondent could not be said to be B.Sc. Honours in  Zoology and dismissed the petition. The Division Bench  was in error in setting aside the said order which  deserves interference. The learned counsel for the first respondent, on the  other hand, supported the order passed by the Division  Bench. He submitted that the first respondent was  eligible and possessed requisite educational  qualifications. It was because of her eligibility that she  applied for the post of District Fisheries Officer. Even the  Commission was satisfied about her qualifications and

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was asked to appear for interview. The counsel also  submitted that the Division Bench was right in observing  that the first respondent was granted admission by the  Central Institute of Fisheries Education, Mumbai. Had  the first respondent not possessed a Batchelor of Science  Degree with Zoology, the institute would not have given  her admission. It was, therefore, clear that the first  respondent was treated as B.Sc. with Zoology, she  applied to Central Institute of Fisheries Education,  Mumbai, she was admitted in the Institute and also  cleared the course. It was also asserted in the counter  affidavit filed in this Court by the first respondent  (original petitioner) that two similarly situated persons,  namely, i) Jai Prakash, and (ii) Shailendra Kumar had  been appointed in the year 1993 though they had similar  qualifications. It was, therefore, submitted that the  Division Bench was right in issuing necessary directions  and the appeal deserves to be dismissed. Having heard learned counsel for the parties, in our  opinion, the appeal deserves to be allowed. The  advertisement is explicitly clear and states that the  candidate must be Honours in B.Sc. Zoology. It is not in  dispute that first respondent has obtained B.Sc. Degree  with First Class but her main subject was Chemistry of  eight papers of 800 marks and in addition to Chemistry,  she had two papers of Zoology and Botany. In pursuance  of the advertisement, which was clear, the first  respondent was not eligible for the appointment to the  post of District Fisheries Officer. In spite of that, she  applied for the said post. True it is that initially a letter  was issued by the Commission on October 17, 2002  calling upon her to appear before the Commission for  interview. It was, however, a mistake on the part of the  Commission. As soon as the appellant-Commission  realised that the first respondent was not having  requisite qualifications for the post and was not eligible,  her candidature was rejected. When a representation was  made by the first respondent that cancellation of her  candidature was not proper and that the decision should  be reconsidered by the Commission, the Commission  thought it fit to look into her grievance and an Expert  Committee was appointed. The Expert Committee  considered the question and submitted a report on  November 24, 2002, inter alia, stating that in its  ’considered opinion’, a student would be called a  Graduate in the subject if he/she has Honours in the  subject at the Graduate level, meaning thereby that it  must be the principal subject. In our opinion, such a  decision could not be said to be contrary to law. Again, it is well settled that in the field of education,  a Court of Law cannot act as an expert. Normally,  therefore, whether or not a student/candidate possesses  requisite qualifications should better be left to  educational institutions [vide University of Mysore v.  Govinda Rao, (1964) 4 SCR 576 : AIR 1965 SC 591]. This  is particularly so when it is supported by an Expert  Committee. The Expert Committee considered the matter  and observed that a person can be said to be Honours in  the subject if at the Graduate level, he/she studies such  subject as the principal subject having eight papers and  not a subsidiary, optional or side subject having two  papers. Such a decision, in our judgment, cannot be  termed arbitrary or otherwise objectionable. The learned  Single Judge, in our opinion, was, therefore, right in  dismissing the petition relying upon the Report of the

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Committee and in upholding the objection of the  Commission. The Division Bench was in error in ignoring  the well considered report of the Expert Committee and  in setting aside the decision of the learned Single Judge.  The Division Bench, while allowing the appeal, observed  that the ’litmus test’ was the admission granted to the  first respondent by the Central Institute of Fisheries  Education, Mumbai. According to the Division Bench, if  the first respondent did not possess Bachelor of Science  Degree with Zoology, the Institute would not have  admitted her to the said course. The Division Bench  observed that not only the first respondent was admitted  to the said course, she had passed it with "flying  colours". In our opinion, the Division Bench was not right  in applying ’litmus test’ of admission of the first  respondent by Central Institute of Fisheries Education,  Mumbai. The controversy before the Court was whether  the first respondent was eligible for the post of District  Fisheries Officer, Class II. The correct test, therefore, was  not admission by Mumbai Institution. If the requirement  was of Honours in B.Sc. with Zoology and if the first  respondent had cleared B.Sc. Honours with Chemistry, it  could not be said that she was eligible to the post having  requisite educational qualifications. By not treating her  eligible, therefore, the Commission had not committed  any illegality. With regard to two instances cited by the first  respondent in her counter affidavit before this Court, it is  sufficient to state that the Letters Patent Appeal was not  allowed by the Division Bench of the High Court on that  ground. Even otherwise, the learned counsel for the  appellant-Commission is right in submitting that the  cases related to remote past in 1993. He further stated  that the advertisement was issued in 1999, several other  candidates who had not obtained Degree of B.Sc.  (Honours) with Zoology as principal subject had applied  and all of them have been treated ineligible and were not  called for interview. In our opinion, the submission of the learned  counsel for the Commission is well founded and must be  accepted. Therefore, even if in 1993, some ineligible  candidates were wrongly treated as eligible, the first  respondent cannot insist that she also must be treated  eligible though she is ineligible. In our considered  opinion, such an action cannot give rise to equality  clause enshrined by Article 14 of the Constitution. It is  well settled and needs no authority that misconstruction  of a provision of law in one case does not give rise to a  similar misconstruction in other cases on the basis of  doctrine of equality. An illegality cannot be allowed to be  perpetuated under the so-called ’equality doctrine’. That  is not the sweep of Article 14. Even that contention,  therefore, has not impressed us. For the foregoing reasons, the appeal deserves to be  allowed and is accordingly allowed. The order passed by  the Division Bench of the High Court is set aside and the  order passed by the learned Single Judge is restored and  the petition filed by the first respondent-original  petitioner stands dismissed, however, with no order as to  costs.