- (1.) The Judgment of the Court was as follows : These two writ petitions are being taken up for hearing together as identical questions of law and similar factual issues are involved in these two cases. Both the writ petitioners have obtained M. Phil in Women's Studies from the School of Women's Studies under the Jadavpur University. THEy have obtained graduate and postgraduate degrees in English from recognised Universities and desire to teach english at the graduate level as lecturers in colleges affiliated to different universities in West Bengal. Selection to such posts is done by way of a centralised selection process by the West Bengal College Service Commission, and the Commission makes recommendation in respect of selected candidates to respective colleges having vacancies duly approved by the State Government. Advertisement in respect of the posts which are subject of dispute in the present proceeding was made on 5 December, 2008, being Advertisement No. 03/2008. Both the petitioners had responded to such advertisement.
(2.) The qualification for the said post was specified in the said advertisement itself, and it was inter-alia stipulated :- "Eligibility : (Ref. G.O. No. : 756 Edn(CS) dt. 28.11.2008 read with G.O. No.: 627 Edn(CS) dt. 17.06.1999 of Govt. of W.B.(HED) and UGC notification. (1) For Degree Colleges: (i) Consistently good academic record with at least 55% marks (without any sort of grace or an equivalent grade in the master's degree preceded by 3 yrs Hons. Degree in the concerned subject with at least 2nd class marks. Relaxation of 5% from 55% of the marks is admissible to candidates (a) belonging to SC/ST/PH category and (b) qualified in the JRF examination conducted by the UGC/CSIR only prior to 1989. (ii) Qualifying of the Eligibility Test for JRF/Lectureship conducted by UGC/CSIR(NET) or UGC accredited State Eligibility Test (SET) earlier (SLET) conducted by WBCSC or possessing of Ph.D. or M. Phil degree in concerned subject. (iii) Good power of expression (speaking, reading & writing) in Bengali/ Nepali." The source or power of the State Government to lay down such qualification criteria has not been disclosed before this Court, but it was submitted that the State Government followed the criteria laid down by the University Grants Commission (UGC) in this regard. The power or authority of the State Government to lay down the qualification criteria is however not in dispute in these proceedings. The relevant qualification criteria of the UGC in this regard is contained in the UGC (Minimum Qualifications Required For The Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) (2nd Amendment), Regulation, 2006 issued on 14 June, 2006 which stipulated :- "NET shall remain compulsory requirement for appointment as Lecturer even for those with Post Graduate Degree. However, the candidates having Ph.D. Degree in the concerned subject are exempted from NET for PG level and UG level teaching. The candidates having M.Phil. Degree in the concerned subject are exempted from NET for UG level teaching only." This Regulation has subsequently undergone further modifications but in relation to the posts in question, this Regulation remains applicable. Neither of the two writ petitioners is NET or SLET qualified. They however had responded to the advertisement on the strength of their M.Phil degree. Runa Chakraborty, the writ petitioner in W.P. No. 342 of 2010 participated in the selection process and was initially recommended for Malda College under the zone of Gourbanga University. The writ petitioner in W.P. No. 471 of 2010, Ria Mukherjee was issued a call letter and went through the process of interview. In the provisional merit panel for lecturers in respect of English under the Calcutta University zone, her name appeared against serial No. 20. I shall refer to these to the writ petitioners in the later part of the judgment as R and R1 respectively. So far as R is concerned, it appears that the Commission had subsequently withdrawn their recommendation in substance by directing the Malda College authorities not to issue appointment letter to her. R1 was not allowed to participate in the process of counselling. The reason for such steps being taken by the Commission is that none of them had done her M.Phil in English. The view of the Commission is that the candidates seeking to bypass the entry test being NET or SLET on the strength of their M.Phil, will have to do M.Phil in the very same subject for which they apply for lectureship and Women's Studies in which they did their M.Phil is not the same as English. Their cases have been argued by Mr. Kamalesh Bhattacharya and Mr. Mohinoor Rahaman learned Counsel.
(3.) The case of R is that the Commission, once having recommended her name, has no power to recall or withdraw such recommendation as there is no allegation of any suppression in relation to her educational qualification. Indeed, both the petitioners had disclosed the fact that they had done their M.Phil in Women's Studies in their applications. In support of this argument, reliance has been placed on a decision of the Supreme Court in the case of Shri Krishnan v. THE Kurukshetra University, Kurukshetra, 1976 1 SCC 311. In this judgment it has been held :- "7. It appears from the averments made in the counter-affidavit that according to the procedure prevalent in the college the admission forms are forwarded by the Head of the Department in December preceding the year when the examination is held. In the instant case the admission form of the appellant must have been forwarded in December, 1971 where as the examination was to take place in April/ may, 1972. It is obvious that during this period of four to five months it was the duty of the university authorities to scrutinise the form in order to find out whether it was in order. Equally it was the duty of the Head of the Department of Law before submitting the form to the university to see that the form complied with all the requirements of law. If neither the Head of the Department nor the university authorities took care to scrutinse the admission form, then the question of the appellant committing a fraud did not arise. It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi, or suppressio veri. THE appellant never wrote to the university authorities that he had attended the prescribed number of lectures. THEre was ample time and opportunity for the university authorities to have found out the defect. In these circumstances, therefore, if the university authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I examination in April, 1972, then by force of the university statute the university had no power to withdraw the candidature of the appellant. A somewhat similar situation arose in Premji Bhai Ganesh Bhai Kshatriya v. Vice Chancellor, Ravishankar University, Raipur where a Division Bench of the High Court of Madhya Pradesh observed as follows : From the provisions of Ordinance Nos. 19 and 48 it is clear that the scrutiny as to the requisite attendance of the candidates is required to be made before the admission cards are issued. Once the admission cards are issued permitting the candidates to take their examination, there is no provision in Ordinance No. 19 or ordnance No. 48 which would enable the Vice-Chancellor to withdraw the permission. This discretion having been clearly exercised in favour of the petitioner by permitting him to appear at the examination, it was not open to the Vice-Chancellor to withdraw that permission subsequently and to withhold his result. We find ourselves In complete agreement with the reasons given by the Madhya Pradesh High Court and the view of law taken by the learned Judges. In these circumstances, therefore, once the appellant was allowed to appear at the examination in May, 1973, the respondent had no jurisdiction to cancel his candidature for that examination. This was not a case where on the undertaking given by a candidate for fulfillment of a specified condition a provisional admission was given by the university to appear at the examination which could be withdrawn at any moment on the non-fulfillment of the aforesaid condition. If this was the situation then the candidate himself have contracted out of the statute which was for his benefit and the statute therefore would not have stood in the way of the university authorities in cancelling the candidature of the appellant." It is asserted on behalf of the petitioners that in the advertisement, the requirement for the degree of M.Phil in the concerned subject does not mean the same or identical subject, but the said degree in an equivalent subject would fulfil the requirement. In this regard a resolution taken by the executive council of the Jadavpur University on 5 March, 2010 has been relied upon on behalf of the petitioners. This resolution stipulates :- " RESOLVED that the M.Phil degrees in the Arts Faculty viz., M.Phil degrees in Comparative Literature and Sanskrit and the literature subjects are equivalent to each other in depth, coverage and merit. RESOLVED and confirmed that M.Phil degree in Women's Studies be considered equivalent to those in Literature subjects in depth, coverage and merit. RESOL VED also that candidates with M. Phil degrees in "Comparative Literature" and "Women's Studies with literature specialization" are eligible to apply for any teaching posts in respective literature subjects.";