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Item No.41/ C-3 OA No. 2098/2023

CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH, NEW DELHI

O.A. No. 2098/2023

M.A. No.2464/2023
M.A. No.2465/2023

Reserved on : 16.10.2023
Pronounced on : 01.11.2023

Hon’ble Mr. Tarun Shridhar, Member (A)

Hon’ble Mrs. Pratima K. Gupta, Member (J)

1. Bhairvi Kumari,
D/o Shri Vijay Kapoor,
R/o N1/15D, 10-9-8V,
Gangotri Vihar, Nagwa,
Lanka, Varanasi
(aged about 26 years)

2. Shravan Kumar,
S/o Sh. Ramprit Choudhary
R/o A-101, C/o Seema Kumari,
Freedom Fighters Colony,
Neb Sarai, Saket,
New Delhi-110068
(aged about 29 years)

3. Manpreet Singh,
S/o Sh. Balvinder Singh,
R/o [Link].517, Palia Road,
Nighasan, District-Kheri,
U.P. Pincode-262903
(aged about 30 years)

4. Sanjay Kumar,
S/o Sh. Mahesh Yadav,
R/o Vill-Sahorbaghat, P.O. Bargawon,
P.S.-Kusheswar Asthan,
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Item No.41/ C-3 OA No. 2098/2023

District-Darbhanga, Bihar,
Pincode-848213
(aged about 25 years)

5. Neha Chaudhary,
D/o Sh. Rishipal Singh,
R/o 82, Dharam Enclave,
Chandpur Road, Bulandshahar,
Pincode-203001
(aged about 26 years)

6. Pooja Priyadarshini,
D/o Sh. Mithlesh Kumar Jha,
R/o Vill-Pachii Machhaita,
P.O.-Kuson Nadiami,
PS-Sakatpur, District-Darbhanga,
Pimcpde-847405
(aged about 29 years)
...Applicants
(By Advocate : Shri Ajesh Luthra)

Versus
1. Kendriya Vidyalya Sangathan,
Through Commissioner,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016.
2. Ministry of Education,
Through its Secretary, 302-C,
Shastri Bhawan, New Delhi-110001.
3. Joint Commissioner (Administration),
Through Commissioner,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016.
…Respondents
(By Advocates: Shri R.K. Jain )
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Item No.41/ C-3 OA No. 2098/2023

ORDER

By Hon’ble Mrs. Pratima K. Gupta, Member (J):-

Aggrieved by an order dated 30.06.2023 (Annexure-

A/1Colly), the applicants ventilate their grievances by

way of the instant OA seeking the following relief(s) :-

“(a) quash and set aside the impugned

orders dated 30.06.2023 placed at Annexure
A/1 (Colly) and
(b) direct the respondents to consider and
appoint the applicants to the post of Primary
Teacher (Music)
(c) accord all consequential benefits
(d) award costs of the proceedings
(e) Any other relief which this Hon‟ble
Tribunal deems fit and proper in favour of the
applicants.”

2. Briefly narrating the history and background of the

instant OA, learned counsel for the applicants submits

that:

2.1 The respondents issued the recruitment notice for

the vacancies of Primary Teacher (Music) on 02.12.2022.

The applicants being eligible presented their candidature

and were subjected to a computer based test.

Thereafter, they participated in the interview on the date

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Item No.41/ C-3 OA No. 2098/2023

fixed. However, they were not allowed to participate in

the interview for want of essential educational

qualification.

2.2. Aggrieved by the same, the applicants preferred OA

No.1682/2023 wherein short notice for consideration of

interim relief was issued on 31.05.2023. The said OA

was disposed of by this Tribunal on 06.06.2023, with a

direction to the respondents to decide the pending

representation of the applicants in a time bound

manner. The operative portion of the order dated

06.06.2023 reads as under:-

“5. In view of the aforesaid, with the consent

of the learned counsels for the parties and
without going into the merits of the case, the
present O.A. is disposed of at this very stage
with liberty to the remaining applicants to
prefer comprehensive representations within
3 days from today before the respondents for
redressal of their grievances and if such
representations are received within the time
stipulated herein, the competent authority
amongst the respondents is directed to
consider the same in accordance with the
relevant rules and instructions on the
subject and to dispose of the same by
passing reasoned and speaking order(s) as
expeditiously as possible and preferably
within 3 weeks of receipt of such
representation.
6. The O.A. stands disposed of in the
aforesaid terms. Associated [Link] also stand
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Item No.41/ C-3 OA No. 2098/2023

disposed of, accordingly. However, in the

facts and circumstances, there shall be no
order as to costs.”

2.3. In compliance of the aforesaid order dated

06.06.2023, the respondents have passed the impugned

order dated 30.06.2023. Aggrieved by the same the

applicants have preferred the instant OA.

2.4. Learned counsel for the applicants draws attention

to the vacancy notification, wherein the essential

qualifications required for the post of Music Teacher

have been set forth. The same reads as under:-

Post Qualification (s)

PRIMARY Essential :
TEACHER i) Senior Secondary School
(MUSIC) Certificate with 50% marks
or Intermediate with 50%
marks or its equivalent and
Bachelor Degree in Music
or equivalent from a
recognized University.
ii) Competence to teach
through English/Hindi
medium.

Desirable Knowledge of
Computer Applications.

2.5. He submits that the aforesaid qualifications are

strictly in accordance with the notified Recruitment

Rules and there could be absolutely no dilution of the

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Item No.41/ C-3 OA No. 2098/2023

same as far as the essential requirement of Senior

Secondary School Certificate with 50% marks or

intermediate or its equivalent is concerned. He submits

that there is no dispute that the applicants meet this

essential qualification. On the issue of the higher

qualification, necessarily subsuming a lower

qualification, learned counsel for the applicants has

drawn support from a judgment passed by a Coordinate

Bench of this Tribunal on 01.12.2022 in OA No.

1741/2022, wherein unambiguous observation has been

made that higher qualification cannot be allowed to act

as a disqualification and should instantly be treated as

possessing essential qualification while making

recruitment for the posts. The applicants have passed

Senior Secondary with 50% marks. However, the

bachelor degree in Music or equivalent from a recognized

University is in question. The applicants have a degree

from Sangeet Prabhakar from Prayag Sangeet Samiti,

Allahabad, which, according to the respondents is not a

recognized degree, to be specific, by the UGC. He further

submits that the same issue came up for consideration

before the Hon‟ble Apex Court in Civil Appeal

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Item No.41/ C-3 OA No. 2098/2023

No.6098/1997 State of Bihar & Others Vs. Bihar

Rajya M.S.E.S.K.K.M. & Others decided on 12.10.2004

(page 150 of the OA), wherein the issue was with respect

to retrenchment of teachers who had acquired same

degree from the said Institute and on directions of the

Hon‟ble Apex Court, one Member Committee under the

chairmanship of Hon‟ble Justice S.C. Agrawal was

constituted. The Committee submitted its report on

14.12.2003 (page 147-148). This report was in toto

accepted by the Hon‟ble Apex Court. The conclusion of

the Hon‟ble Apex Court is reproduced hereinbelow :-

“Conclusions :

1. The judgment of the High Court to the

extent of the interpretation placed by it on
the provisions of section 4(I)(14) and
section 35 with the directions issued in
paragraphs 24 to 26 therein, is hereby
confirmed for the reasons recorded by us
above.

2. The report of the commission of enquiry

of Hon. Justice S.C. Agrawal [retired], is
accepted and all objections filed against
the said report are rejected.

3. The members of the staff in various

affiliated colleges identified and named in
list no. (i) being appointees against the
sanctioned posts shall be absorbed and
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Item No.41/ C-3 OA No. 2098/2023

formal order to that effect shall be issued

by the universities concerned.

4. The universities shall take a decision

under section 4(I) (14) of the Act in the
matter of absorption of appointees named
in list no. (ii) of the Report of the
Commission, being appointees against
posts for which recommendations were
sent by the universities for which
recommendations were sent by the
universities to the State up to the cut-off
date in accordance with the decision of the
State Government conveyed in its letter
dated 19.8.1986 followed by letters dated
25.08.1986 and 12.06.1987.

In considering the question of absorption

of appointees named in list no. (ii) of the
report of the Enquiry Commission, the
universities concerned shall rely on the
contents of the report of the enquiry
commission and the present judgment of
this Court.

5. The appointees mentioned in list no.

(iii), being the appointees against posts for
which recommendations were sent by the
universities to the State Government after
the cut-off date or those working against
posts for which no recommendations were
sent for approval of the State Government,
have no right of being considered for
absorption - whatever maybe the fortuitous
circumstances or otherwise in the matter
of not sending recommendations for
sanction in their cases. The negative report
of the enquiry commission with regard to
list no. (iii) is accepted and the universities
are directed to exclude all such appointees
named in list no. (iii) from consideration for
absorption.
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Item No.41/ C-3 OA No. 2098/2023

6. A large number of objections to the

Report of the Enquiry Commission filed
before us by associations of employees and
individuals pertain to the alleged lack of
prescribed qualifications for the posts on
which they are working. Al1 those
objectors have not been recommended for
absorption in the report of the
Enquiry Commission. Decision in
individual cases, with due
regard to the qualification of each
employee and corresponding
statute applicable at the relevant time
prescribing qualifications, if any, for the
teaching and non-teaching posts, shall be
taken by the universities based on the
findings in the report of Justice
Agrawal Commission and in the light. of
the legal position explained above.

The universities concerned shall now

complete the process of absorption of the
staff of the affiliated collages (teaching and
non-teaching) in the manner and to the
extent stated above in our
judgment within a period of four months
from the date of receipt /production of the
copy of this order.

The arduous work of scrutinizing large

number of files, hearing large number of
individual employees and their
associations as also concerned authorities
and preparing and submitting a detailed
report to facilitate this Court in deciding
these cases, was completed by Mr.
Justice S. C. Agrawal (retired] as one –
member Enquiry Commission within a
reasonable period. Before parting with this
case, we thankfully acknowledge the
valuable services of the Commission.
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Item No.41/ C-3 OA No. 2098/2023

In the result, the appeal, the connected

special leave petition and contempt
petitions, all are dismissed. The
applications for impleadment as parties,
appi1catons seeking interventions and
other applications raising objections to the
report of the Enquiry Commission
and seeking directions, all stand rejected.

In the circumstances, we leave the parties

to bear their own costs incurred in this
Court.”

2.6 He further submits that from the aforesaid, it is

clear that a degree of Sangeet Prabhakar and Diploma in

Sangeet Visharad were to be treated equivalent of

Graduation in Music.

3. Pursuant to notice, the respondents have filed

counter reply opposing the OA. Learned counsel for the

respondents has drawn our attention to the judgment of

Hon‟ble High Court of Patna in CWJC No.4634/2011 in

Ms. Alka Kamlapuri Vs. UGC & Ors., wherein the

Hon‟ble High Court, while taking cognizance of the

findings of Justice S.C. Agrawal Committee has

categorically given the following finding :-

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Item No.41/ C-3 OA No. 2098/2023

“If the UGC has categorically

communicated to the petitioner that
Sangit Praveen degree of Prayag Sangit
Samiti, Allahabad is not equivalent to the
Post Graduate degree of any recognized
Indian University, where is the occasion
for this Court to allow the petitioner to sit
for NET or any other examinations to be
conducted in this regard. Recognition of
the institution from where such degrees
are obtained is pre-requisite under the
UGC Act. If UGC has not conferred
recognition, petitioner is free to obtain
degrees from where she wants. UGC has
no obligation to honour it.

Writ is dismissed.”

4. Strongly contesting the argument on the judgment

of a Coordinate Bench of this Tribunal in OA

No.1741/2022 put forth by the learned counsel for the

applicants, learned counsel for the respondents submits

that the said judgment dealt with a degree in

Engineering, which is higher than a Diploma and in the

same hierarchy of degrees. In the present case, it is the

very essential qualification possessed by the applicants

which has been questioned and which is not in

accordance with Recruitment Rules, hence, the judgment

would not be applicable in this case. He further submits

that along with the qualification, there is an essential

requirement of Degree in Music or equivalent from a

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Item No.41/ C-3 OA No. 2098/2023

Recognized University. He submits that the degree

possessed by the applicants is certainly not a Bachelor‟s

Degree in Music as it is called 'Sangeet Prabhakar',

which is not equivalent to a Bachelor‟s Degree. He

further argues that if equivalence is to be established,

the same is to be done by the employer on the basis of

professional advice of subject experts. It has been

invariably held several times in different

pronouncements that Courts and Tribunals should

consciously desist from interfering in the matter, which

is strictly in the domain of the Courts. Whether a

particular degree is equivalent to another one is a subject

for concerned academic experts to determine. He submits

that documents relied upon by the applicants and

argued by learned counsel especially with respect to the

documents pertaining to recognition by CBSE, would not

help in establishing the bonafide of Sangeet Prabhakar

from Prayag Sangeet Samiti (Allahabad) as what is

required is recognition and/or affiliation by the

University Grants Commission (UGC) and accordingly,

besides the question of equivalence of the degree, the

recognition of the Institute, i.e., Prayag Sangeet Samiti

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Item No.41/ C-3 OA No. 2098/2023

also needs to be established and in the instant case,

there is nothing on record to establish that this institute

is a recognized one. Accordingly, the applicants possess

neither the required degree nor its equivalent and what

they possess in the name of the degree is from an

institute, which is not recognized. He argues that the

report of the Commission set up by the Hon'ble Apex

Court, which held that 'Sangeet Prabhakar' is equivalent

to a Bachelor degree in Music was made under the

specific circumstances of a case of retrenchment of a

large number of Teachers in the State of Bihar and the

said recommendation is to be appreciated in a specific

situation. He points out that the observations of the said

commission with respect to recognition of Prayag Sangeet

Samiti (Allahabad) is context specific and cannot be

made applicable in the instant case. He further argues

that the Master‟s Degree, being relied upon by the

applicants to substantiate that since they possess the

higher qualification, the essential qualification of which

is only Bachelor would not come to their rescue because

a higher education has to necessarily entail an

appropriate lower degree in the hierarchy. In the instant

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Item No.41/ C-3 OA No. 2098/2023

case, once the essential qualification as notified in the

Recruitment Rules is not acceptable, the higher

qualification could not be considered. Learned counsel

for the respondents has also argued that even though he

would not give recognition to the Post Graduate Degree of

the applicants, it is apparent that few of the applicants

possess qualification only in a specific discipline of Music

and not the whole discipline as such. He also argues

that in a decision at the highest level, i.e., is the Board of

Governors, it has been decided that pursuant to revision

in the Recruitment Rules, the qualification of possessing

degree from „Sangeet Prabhakar‟ shall not be considered

to be a valid qualification in terms of Recruitment Rules.

Learned counsel for the respondents has argued that

since neither the qualification is equivalent nor the

institute is recognized, the claim of the applicants is

untenable on both the counts.

5. In rejoinder, learned counsel for the applicants

draws our attention to the vacancy notifications issued

by the respondents after the amendment to the

Recruitment Rules and drawing attention to seniority list

of PRT (Music) submits that few persons therein were

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Item No.41/ C-3 OA No. 2098/2023

recruited and appointed subsequent to these

advertisements despite the fact that they have

qualification of 'Sangeet Prabhakar' from Prayag Sangeet

Samiti (Allahabad). Therefore, the present action of the

respondents in cancelling the candidature of the

applicants on the ground of their qualification is

inconsistent with their earlier decisions, contrary to the

pleadings in the counter reply and is also grossly

discriminatory. He further argues that the respondents

have made incorrect averments in paras 4.16 and 4.17 of

their counter reply. In these paras, they have stated that

after the amendment to the Recruitment Rules w.e.f.

01.06.2012, no selection has been made on the basis of

the qualification of 'Sangeet Prabhakar' from Prayag

Sangeet Samiti (Allahabad).

6. We have heard the arguments put forth by the

learned counsel for the parties at great length and also

carefully examined the documents on record specifically

the ones which the learned counsel have drawn attention

to.
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Item No.41/ C-3 OA No. 2098/2023

7. The applicants, during the interregnum, have done

Master in Music from Delhi University/M.P. University.

The Delhi University has recognized degree of „Sangeet

Prabhakar as a degree in Graduation, by allowing them

to pursue their Masters. The CBSE has also recognized

this degree of „Sangeet Prabhakar‟ as one of the eligible

qualifications for the teachers to teach music in their

affiliated schools. We are conscious of the fact that it is

the domain of the Executive/Employer to decide the

equivalency of the required qualifications. The judgment

of Hon‟ble Patna High Court in CWJC No.4634/2011,

cited by the learned counsel for the respondents does not

come to their rescue as we are bound by the aforesaid

decision of the Hon‟ble Apex Court in Civil Appeal

No.6098/1997 and we may not be guided by judgment of

Hon‟ble High Court of Patna. We are of the considered

opinion that the applicants meet the essential

qualification as explained by the Honble Apex Court, the

same being recognized by the Universities equivalent for

higher qualification. Possessing higher qualification

cannot be treated as a disqualification and that too when

the applicants are not only eligible but they also possess
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Item No.41/ C-3 OA No. 2098/2023

a higher qualification, unless or until there is a bar on

possessing a higher qualification. In our considered

opinion, possessing higher qualification can certainly be

stated to presuppose the acquisition of the lower

qualifications prescribed for the post. Accordingly, the

degree possessed by the applicants i.e. „Sangeet

Prabhakar‟ can well be treated equivalent to bachelor‟s

degree.

8. In view of the foregoing reasons and observations,

the OA is allowed. The impugned order dated

30.06.2023 is quashed and set aside. The respondents

are directed to consider and appoint the applicants to the

post of Primary Teacher (Music), if otherwise eligible.

They shall also be entitled to all the consequential

benefits flowing from this order only on notional basis.

The exercise as ordained above shall be completed by the

respondents within a period of eight weeks from the date

of receipt of a certified copy of this order.

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Item No.41/ C-3 OA No. 2098/2023

9. Pending MAs, if any, shall stand disposed of.

There shall be no order as to costs.

(Pratima K Gupta) (Tarun Shridhar)

Member (J) Member (A)

/rk/