Madhya Pradesh High Court
Vivek Kumar Jaiswal vs University Grant Commission on 8 March, 2018
HIGH COURT OF MADHYA PRADESH
W.P.No. 2372 / 2017
[Vivek Kumar Jaiswal and others Vs. University Grants Commission and another]
Jabalpur, Dated : 08.03.2018.
Shri R.N. Singh, Senior Advocate, with Shri Hitendra Singh, Advocate
for the petitioners.
Smt. Nirmala Nayak, Advocate for respondent No.1/UGC.
Smt. Shobha Menon, Senior Advocate, with Shri Rahul Choubey, Advocate for respondent No.2/University.
The petitioners, 39 in number, have invoked the writ jurisdiction of this Court claiming a writ of mandamus, to treat the petitioners as having been confirmed on the respective posts of Assistant Professors and thus to extend all benefits arising thereof or in the alternative to direct the respondent/University to issue orders confirming the services of the petitioners on the post of Assistant Professors in the concerned teaching Departments of the University.
2- The said prayer is sought on the basis of the following facts. An advertisement was issued on 30.10.2010 called 'Rolling/Open' advertisement to fill up the posts of Professors, Associate Professors and Assistant Professors in the nine schools and the broad areas mentioned therein. In terms of the advertisement, a total of 179 posts were advertised, out of which 82 were posts of Assistant Professors. It is an admitted position that the petitioners were appointed on or about 16th September, 2013 as Assistant Professors. The petitioners claim that since the maximum period of probation is 1 year in terms of the Ordinance applicable to the teaching faculty of the University, which can be extended by another 1 year, therefore, their services are liable to be confirmed.
3- Relevant extract from the Ordinance reads as under:-
"3. Period of Probation and Confirmation:
The minimum period of probation shall be one year extendable by a maximum period of one more year in case of unsatisfactory performance.
Provided that the Executive Council for the reasons recorded, may waive the condition of probation.2
Provided further that the condition of probation shall not apply in case of teachers appointed by the Executive Council under the Statute 19(1).
The confirmation at the end of one year shall be automatic, unless extended for another year by a specific order, before expiry of the first year.
Probation and confirmation rules shall be as applicable only at the initial stage of recruitment, issued from time to time, by Central Government.
All other Central Government rules on probation and confirmation shall be applicable mutatis mutandis.
4. Confirmation:
It shall be the duty of the Registrar to place before the Executive Council the case of Confirmation of a teacher on probation, not later than forty days before the end of the period of probation. The Executive Council may then either confirm the teacher or decide not to confirm him, or extend the period of probation so as not to exceed twenty-four months in all.
In case the Executive Council decides not to confirm the teacher, whether before the end of twenty-four months' period of his/her probation, or before the end of the extended period of probation, as the case may be, he shall be informed in writing to that effect, not later than thirty days before the expiration of that period. Provided that the decision not to confirm a teacher shall require a two- third majority of the members of the Executive Council present and voting."
4- The petitioners are said to have submitted representation on 11.1.2017 seeking confirmation, but no decision on such representation was communicated. It is thereafter the petitioners invoked the writ jurisdiction of this Court. This Court hearing the petition on 16.2.2017, passed an interim order that no coercive action shall be taken by the respondents against the present petitioners, as an argument was raised by learned counsel for the University that a detailed inquiry is going on and that some of the petitioners have been wrongly appointed and even a CBI inquiry is contemplated and that there may be many persons who were appointed in violation of law.3
5- Thereafter, the University filed its return interalia pointing out that as against 82 posts of Assistant Professors advertised, 157 Assistant Professors have been appointed. In some departments, the candidates who did not apply were also directly allowed to participate in the interview and appointed. Some of the candidates who were found ineligible by the Scrutiny Committee were also issued call letters for participating in the interview and some of them were even appointed.
6- The University has pointed out the following irregularities in the return filed:-
"6. Scrutiny of the available records shows that the following irregularities have crept in the process of selection of the aforesaid 157 Assistant Professors:
i) Department-wise distribution of reserved category posts, which is the standard practice, was neither mentioned in the original advertisement nor even in the corrigendum issued afterwards.
ii) University appointed some persons on the post of Assistant Professors in its various departments, where posts of Assistant Professors were even not advertised.
iii) The university has made excess appointments beyond the number of posts sanctioned and advertised.
iv) There has been non-compliance of reservation roster, maintained by the university and the posts which were earmarked for a particular category were not filled in that manner, instead thereof, candidates of other category were appointed.
v) While recommending the candidates for the appointment to the post of Assistant Professor, no score was awarded as per UGC Regulations 2010 (50% for academic and research records, 30% for domain knowledge and 20% for interview out of 100) and as such no merit list was drawn by the Selection Committees.
vi) Furthermore, as per Govt. of India norms Selection Committees were not held separately for selection of the candidates or reserved categories.
vii) In some of the departments, the candidates who did not apply were also directly allowed to participate in the interview and even they were appointed.
viii) Some of the candidates who were found ineligible by the Scrutiny Committee were also issued call letters for participating in the interview and some of them were even appointed."4
7- It is also pointed out that issue of confirmation of the Assistant Professors, including the petitioners, were placed before the Executive Council in its 20th Meeting held on 7.12.2016, whereby the Executive Council deliberated on the report and resolved to seek legal opinion in the matter and that action to be taken on the Committee's report is pending for its consideration.
8- It has also been pointed by the University that the assertion of petitioners that by virtue of Clause (3) and (4) of Ordinance 14, petitioners are deemed to be confirmed on the post of Assistant Professors sans merit, inasmuch as, minimum period of one year and maximum period of two years on probation would only be counted as per Ordinance 14, if petitioners were inducted in service after following due process of law. But the selection of petitioners, as also, their appointment orders were contrary to law and also violative of Article 14 and 16 of the Constitution of India, then, benefit of deemed confirmation is not attracted. The appointment of the Petitioners do not confer them any legal right to hold the post of Assistant Professors and the same is non-est in law. Such appointment cannot be counted for any purposes, much less, deemed confirmation. The facts and circumstances of the case in hand cannot be ignored by this Court.
9- It is further submitted that the basic principle of law emanating from Article 14 and 16 of the Constitution of India that every citizen should have equality of opportunity in matters of public employment after a proper competition amongst qualified persons. Any action of the University deviating from this sacrosanct principle would be violative of constitutional provisions contained in Article 14 and 16. It is thus sought to contend from the committee's report that some appointment have been made against the post of Assistant Professors which were not even advertised. Therefore Clause (3) and (4) of Ordinance relating to deemed confirmation are not attracted.
19- Learned counsel for the respondent submits that it is well established that the appointments cannot exceed the number of posts advertised and the appointments made in excess of the posts advertised are invalid and de-hors the constitutional scheme of equality in public appointment. Such appointments do not confer any legal status on the excess appointees. Further, 5 any appointment made in contravention to reservation roster would also not confer any right in favour of such appointees, to hold the said post. In the backdrop of finding of facts recorded in the committee's report, petitioners are not entitled to the relief, sought in the present petition. 11- It is expedient to state, that the then Vice Chancellor Shri N.S. Gajbhiyea alongwith others is being criminally prosecuted by the CBI, principally, for the reasons, that various irregularities have been committed while appointing person on the post of Assistant Professor pursuant to rolling advertisement dated 30.10.2010.
12- The argument of the learned counsel for the petitioners is that the petitioners having been appointed by the University are deemed to be confirmed at the end of one year, unless extended for another year by a specific order, before expiry of the first year. Therefore, the petitioners have a legal right to seek a mandamus in terms of the Ordinance. 13- We do not find any merit in the present writ petition. The entire selection process is said to be tainted, in as much as against 82 posts of Assistant Professors, 157 appointments have been made. Some of the appointments have been made even without application and on the basis of interview. Some appointments have been made even though the candidature was rejected by the Scrutiny Committee.
14- In these circumstances, we find that the University must be given fair opportunity to inquire as to which of the petitioner has been appointed in a manner not justified in law. As per the return filed, investigations have been initiated against the then Vice Chancellor. The illegalities in the process of appointment have to be investigated. The same could not proceed because of an interim order passed by this Court that no coercive steps shall be taken against the petitioners. The petitioners had invoked the jurisdiction of this Court to pre-empt the inquiry into the manner of their appointment so that they can continue on the post even if their appointment was not legal, proper and in accordance with the provisions of law.
15- If the petitioners are legally appointed after following due process of law, only then provisions of Ordinance 14 would be applicable, but unless and until, the University is permitted to examine the legality and validity of 6 the appointments. The petitioners cannot claim any mandamus. If the appointments are proper, consequences are automatic. 16- Since the matter remained pending before this Court for long time, therefore, we direct the University to conclude the inquiry in the process of appointments preferably within a period of two months. 17- In view thereof, we do not find any merit in the present petition. The same stands dismissed.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
Digitally signed CHIEF JUSTICE JUDGE
by ANIL KUMAR
SHIVARAMAN
Date: 2018.03.12
02:04:11 -07'00'
Aks/-