Gujarat High Court
Prof. A.N. Karia And Ors. vs M.S. University And Ors. on 13 February, 1991
Equivalent citations: (1991)2GLR881
JUDGMENT S.D. Shah, J.
1. Petitioners invoke extraordinary jurisdiction challenge the selection and consequent appointment of respondent No. 3 to the post of Registrar, M.S. University, Baroda.
2. Petitioner No. 1 who was educationally qualified for the post of Registrar had to his credit rich experience to be called for and to be considered for the post of Registrar and his grievance is that he excluded from consideration by the respondents Nos. 1 & 2 which has resulted into denial of equality of opportunity in the matter of appointment as guaranteed by Articles 14 & 16 of the Constitution of India. It is an undisputed fact that the petitioner was not even called and considered for the post of Registrar. Petitioner Nos. 3 & 4 approach this Court on the ground that they were prevented from applying for the post of Registrar inasmuch as the qualification required for the post was a good Post-graduate degree which they did not possess. They were not informed that this educational qualification was relaxable and according to them had they known that such a qualification would be relaxed would have applied for the said post of Registrar. This resulted into their exclusion from the consideration inasmuch as they did not apply for the said post. While respondent No. 3 was also educationally not qualified was considered and selected by relaxing the requirement of educational qualification and thus they allege discrimination on the ground of their exclusion from the zone of consideration.
3. Petitioner No. 2 is simply an elected senator of M.S. University and not a candidate for the post, however, he is interested, according to him, in the better administration of the University and he is, more or less, in the position of petitioner in a public interest litigation.
4. Before I proceed to deal with the rival submissions of the parties, it would be necessary to state the brief facts and the history of earlier litigation where the appointment of the respondent No. 3 was the subjectmatter of challenge.
5. It appears that the post of Registrar in M.S. University at Baroda fell vacant. The said post of Registrar was duly advertised in December, 1983 for which interviews were held in January, 1984. That was the first attempt of the University to appoint a suitable candidate for the post of Registrar. A Selection Committee consisting of very eminent personalities in the field of education did not find a single candidate suitable for the post.
6. The M.S. University, thereafter, made a second attempt by publishing advertisement dated 27th April, 1984. By the said advertisement applications were invited for the post of Registrar and the advertisement further stated that prescribed application form along with details of qualifications and experience can be obtained from the office of the University on payment of Rs. 2/- in the form of I.P.O. It may be noted that the advertisement simply advertises the post of University Registrar and invites applications from suitable candidates. Details of qualification and experience are to be gathered from the office of the University and the advertisement ex facie does not exclude anyone from applying because a person will come to know about the requirements of qualifications and or experience only if he secures the application form and gathers requirements of qualification and experience etc.
7. It is not a matter of dispute that the educational qualification prescribed for the said post of University Registrar is "a good post-graduate degree". The requirement of experience that is expected of a candidate is as under:
Adequate experience in a responsible administrative position in a University or in the department of education and ability to supervise works concerned with Examination, Meetings of University Bodies and Accounts;
Secretarial proficiency and administrative ability of high order, and high skill in drafting in English:
Teaching experience in a College or a University will be an advantage.
8. The controversy in the present case centres around the requirement of "a good post-graduate degree". The respondent No. 3 does not possess that qualification, submits the petitioners, and therefore, he was not qualified or eligible for being appointed to the post of University Registrar. The respondent No. 3, on the other hand, submits that he is educationally qualified for being appointed to the post of University Registrar, and in the alternative, he submits that the prescription of educational qualification is not by any statutory rules, but by the executive order of the Syndicate and the Syndicate has lawfully decided to relax the same in his case, and therefore, also his appointment cannot be challenged. He further submits that his appointment to the post of University Registrar was the subject-matter of challenge in Spl. C.A. No. 3016 of 1984 filed by one Dr. (Mrs.) Pratima D. Desai before this Court. The said petition was dismissed by the High Court on 12th July, 1984 and the learned single Judge of this Court (Coram: Justice R.C. Mankad) had held that the appointment of respondent No. 3 was legal and valid and it was not arbitrary and that the Syndicate was competent to relax the qualification. He further submitted that thereafter Letters Patent Appeal was preferred and the Division Bench of this Court (Coram: B.K. Mehta & R.J. Shah, JJ.) dismissed the said appeal and confirmed the order passed by the learned single Judge upholding the appointment of respondent No. 3 to the post of University Registrar, and further holding that the Syndicate was competent to relax the qualification. He, therefore, submits that the present petition filed by the petitioners is either barred by delay or laches and/or the point at issue is one which is covered by the decision of this Court, and therefore, this petition should be dismissed.
9. Before I proceed to deal with the submissions made by Mr. Yatin Oza, learned Advocate for petitioners I would like to deal with the objection raised by respondent No. 3 to the maintainability of the petition and secondly to deal with the submission of respondent No. 3 that he was even otherwise educationally qualified for being appointed to the post of University Registrar.
10. Mrs. Ketty Mehta, learned Advocate for respondent No. 3, submits that the respondent No. 3 was appointed as University Registrar by order, dated 15th June, 1984 on probation for a period of 2 years. His appointment was the subject-matter of challenge in Spl. C.A. No. 3016 of 1984 filed by Dr. (Mrs.) Pratima D. Desai. The challenge to his appointment was on the ground that the respondent No. 3 possessed educational qualification of B. Com. and B.L. and he did not possess a good post-graduate degree. He was, therefore, not qualified for being appointed to the post of University Registrar. It was the case of the qualified inasmuch as she was possessing degree of Master of Science and Ph. D. It was her case that since the respondent No. 3 did not possess the educational qualification he could not have been selected for the post and relaxation of the said qualification by the Syndicate, in case of respondent No. 3, was arbitrary. This very challenge that the respondent No. 3 did not possess requisite educational qualification and that relaxation of educational qualification in the case of respondent No. 3 was not legal and valid was raised before this Court and the same was negatived first by the learned single Judge and then by Division Bench of this Court. Mrs. Ketty Mehta, therefore, submits that there should be finality to an order of the Court and once decided by this Court that the appointment of the respondent No. 3 was not vitiated in law, second petition by the second set of petitioners was not maintainable or at least the principle of finality should apply so as not to call for any interference with the appointment of the respondent No. 3.
11. Mr. Y.N. Oza, learned Advocate for petitioners, and Mr. S.N. Shelat, learned Advocate for the University pointed out to me that the question and challenge raised in this petition to the appointment of the respondent No. 3 was in fact not raised in the earlier petition. In the earlier petition the petitioner, Dr. (Mrs.) Pratima D. Desai, who was possessing educational qualification was called by the Selection Committee and was rejected by the Selection Committee. She could not have therefore made any grievance of her exclusion from the zone of consideration or violation of her right of equality in the matter of appointment inasmuch as she was considered for the post of University Registrar. It was only on that ground the Court did not pronounce upon the legality and validity of the action of the Syndicate in relaxing the requirement of educational qualification. In this connection, Mr. Yatin Oza invites my attention to the decision of learned single Judge (Coram: R.C. Mankad, J.). The learned single judge has observed as under:
The question, however which is raised before me is that the University could not have relaxed the qualification and even if it wanted to do so, it should have re-advertised the post. Now, so far as the petitioner is concerned, she has been interviewed by the Committee. Therefore, so far as the petitioner is concerned, she has not suffered any injury on account of relaxation of qualifications. It is true that she has not been selected, but that has nothing to do with the relaxation of the qualification. I am, therefore, unable to see as to how the petitioner can make a grievance about the relaxation of qualification. The Syndicate, admittedly is the authority which had prescribed the qualifications, and therefore, it was open to this authority to relax the qualification. Since the petitioner is not in any way affected by the relaxation made by the Syndicate, it is not necessary for me to enter into the question whether the Syndicate of the University could have relaxed the qualifications after advertising the post and whether it was necessary for it to re-advertise the post as contended by the petitioner.
12. Mr. Yatin Oza also invites my attention to the decision of the Division Bench (Coram: B.K. Mehta and R.J. Shah, JJ.) in Letters Patent Appeal No. 307 of 1984 which is as under:
The further question whether it has resulted in discrimination is also not capable of being pressed successfully. As a matter of fact, the petitioner was called and considered individually as well as in comparison with respondent No. 3. There would have been some justification in the grievance of the petitioner if she had not been called for interview and decision had been taken by the University appointing respondent No. 3 after relaxing the qualification. It cannot be said that the petitioner is moving this Court by way of public interest litigation.
13. From the aforesaid observations it becomes clear that, in fact, the Court did not enquire into and did not decide the question about the validity of the relaxation of educational qualification and it also did not decide the question as to whether there was violation of Articles 14 & 16 of the Constitution of India by subsequent relaxation of educational qualification without notifying the same in the advertisement resulting into exclusion of that class of candidates from consideration who were not possessing requisite educational qualification. It is undoubtedly true that the question was in fact not decided by the learned single Judge as well as by the Division Bench of this Court in view of the fact that the petitioner in that case was called for interview and she was rejected by the Selection Committee. The Court, in fact, found that the petitioner of that case at least could not make any grievance about relaxation of qualification because she was thereby not excluded from the zone of consideration. I am, therefore, of the opinion that the question and the challenge to the appointment of respondent No. 3 to the post of University Registrar which is raised in this petition was, in fact, not adjudicated upon and finally decided either by the learned single Judge or by the Division Bench of this Court. Even otherwise, bar of finality of judgment cannot operate since the present petitioners were not party to the said proceedings. The present petitioners Nos. 1, 3 and 4 are challenging the appointment of respondent No. 3 on the ground of their exclusion from the zone of consideration. According to petitioners, their right of being considered for the post of University Registrar is denied to them, and thereby, equality of opportunity in the matter of public employment is denied resulting into violation of Articles 14 & 16 of the Constitution of india. Mr. Yatin Oza is right in submitting that any decision reached by this Court in the earlier proceedings cannot bind the present petitioners, and more so, when on the question raised by the present petitioners in the petition, the Division Bench of this Court as well as learned single Judge have not given any answer because it was not necessary for them to decide the said question. I, therefore, overrule the objection of the respondent No. 3 to the maintainability of the present petition either on the ground of delay or on the ground of finality of the order. In fact, during the pendency of the petition filed by Dr. (Mrs.) Pratima Desai an order of stay against the appointment of respondent No. 3 was granted. Thereafter, the learned single Judge permitted the University to make appointment of respondent No. 3 subject to the decision in appeal. The respondent No. 3, accordingly, came to be appointed to the post of University Registrar by order, dated 16th June, 1984 and this petition is filed by the petitioners on 24th August, 1984. It may be noted that the Letters Patent Appeal came to be dismissed on 2nd August, 1984 and prior thereto the present petition was also filed. It could not, therefore, be said that there was any delay much less inordinate delay on the part of the petitioners so as to disentitle them to move this Court.
14. Mrs. Ketty Mehta, learned Advocate for respondent No. 3, has made an additional submission. She submits that the University has proceeded on the assumption that the respondent No. 3 did not possess educational qualification while, in fact, according to her, the respondent No. 3 does possess educational qualification, and therefore, question of relaxation thereof does not arise. She submits that in the present case the educational qualifications are prescribed by the Syndicate by executive decision and not by any statutory rules. She invites my attention to the requirements of educational qualification with respect to the post of Vice-Principal, Head of Department/Reader/Lecturers in Technical subjects, and thereby, she wants to submit that the Syndicate was conscious of the distinction between the Master's Degree and the Postgraduate Degree. She submits that the Post-graduate Degree is one which is obtained after obtaining first graduate degree. Since it is obtained after graduate degree it is called Post-graduate degree. She, therefore, submits that the degree of Bachelor of Law (LL.B.) obtained by the respondent No. 3 is a Post-graduate degree inasmuch as it was obtained by the respondent No. 3 after obtaining first graduate degree of Bachelor of Commerce (B.Com.). She submits that the Master's degree is a higher degree in the same discipline after Bachelor's degree. In the educational qualification prescribed for the post of University Registrar the requirement is that of a 'good Post-graduate degree'. Based in the above assumption, she submits that the respondent No. 3 did possess a good Post-graduate degree, namely, degree of LL.B., and therefore, the respondent No. 3 was educationally qualified for being called for and selected for the post of University Registrar.
15. Though attractive the submission may appear, it cannot be accepted. The matter is no longer res integra. It is directly covered by the decision of the Supreme Court in the case of Juthika Bhattacharya v. State of M.P. . The Court was faced with exactly identical submission where the appellant who held qualification of B.A. B.T. submitted before the Court that she should be treated as one holding Post-graduate degree. While dealing with said submission the Supreme Court has observed as under:
As regards the second limb of the argument that since the appellant holds the qualification B.A.B.T. she ought to be considered as holding a "post-graduate degree" regard must again be had to the context in which the particular expression occurs and the purpose of the precription. It is not inconceivable that the expression "post-graduate degree" may in a broad and general sense mean in a given context any degree obtained after graduation and which a graduate alone can obtain. But that is not sense in which the memorandum uses the particular expression. By "postgraduate degree" is meant a Master's degree like the M.A. or M.Sc. and not a Bachelor's degree like B.T. In other words, the expression connotes the successful completion of a course of studies at a higher level in any speciality after the acquisition of a basic qualification, at the graduate level. The B.T. course of studies we are informed is open only to graduates and in a dictionary manner of speaking, the degree of "Bachelor of Teaching" may be said to be a post-graduate degree in the sense that the degree is obtained "after" graduation. That is the sense in which the word "post is used in expression like" "post-nuptial", "post-prandial" "postoperative", "post-mortem" and "post" means simply "after". The emphasise is being on the happening of an event after a certain point of time. But the expression "postgraduate degree" has acquired in the educational world a special significance, a technical content. A Bachelor's degree like the B.T. or the LL.B. is not considered to be a post-graduate degree even those degrees can be taken only after graduation. In the refinded and elegant world of education it is the holder of a Master's degree like the M.Ed, or the LL.M. who earns recognition as the holder of a post-graduate degree. That is the sense in which the expression is used in the memorandum.
I, therefore, do not agree with Mrs. Ketty Mehta that the respondent No. 3 was educationally qualified to hold the post of University Registrar.
16. Now, I shall deal with the submission made by Mr. Oza learned Advocate for petitioners. He submits that admittedly the petitioner No. 1 was educationally qualified for being considered for the post of University Registrar inasmuch as he possesses two post-graduate degrees, namely M.A. & LL.M. Admittedly the petitioner No. 1 was not even called for interview or selection by the Selection Committee. He was, thus, totally excluded from the zone of consideration resulting into negation of right of consideration at least, in the matter of public employment which resulted into violation of fundamental right guaranteed under Articles 14 & 16 of the Constitution. He submits that only reason put forth by the respondents Nos. 1 & 2, namely the University in its reply affidavit is that the petitioner No. 1 did not possess requisite experience. He did not possess adequate experience in responsible administrative position in the University or in the department of education and ability to supervise the work concerned with examination, meeting of the University bodies and Accounts. In the affidavit-in-reply filed by the then Vice-Chancellor of the University, Mr. B.C. Parekh, the reasons for not considering the petitioner No. 1 are as under:
I say that the petitioner No. 1 did not have any experience in responsible administrative position in a University or in the department of Education and ability to supervise the work concerned with the examinations, meetings of the University Bodies, and accounts. Any person who is to be appointed to the post of Registrar of this university must have this experience. Without this experience a person can never be considered for this post. The petitioner No. 1 is the Principal of Law College at Godhra and as a Principal of Law College, it is difficult to imagine as to how he could fulfill the qualification prescribed about experience. He has not supervised the works concerned with examinations, meetings of University Bodies and accounts nor was he holding any responsible administrative position in a University or in the Dept. of Education. I was, therefore, of the opinion that it was not necessary to send him for consideration before the Selection Committee. I say that I bona fide believed that the petitioner No. 1 would not fall within the qualifications prescribed and that the question of relaxation in his favour would not arise at all.
It becomes clear from the said stand of the University that the petitioner No. 1 was not even called for interview by the Selection Committee. He did not possess requisite educational qualification. However, according to the then Vice-Chancellor, who happened to be the member of Selection Committee, the petitioner No. 1 did not possess requisite experience. Therefore, he on his own did not send his papers for consideration before the Selection Committee. According to him he bona fide believed that the petitioner No. 1 would not fall within the qualification prescribed. In fact, the entire Selection Committee never had an opportunity of judging the suitability of petitioner No. 1 for the post. Petitioner No. 1 in affidavit-in-rejoinder has pointed out another fact. One Shri C.V. Ramaswamy and one Shri G.J. Trivedi who were educationally qualified for being considered for the post of University Registrar, and who did not possess any experience in the University in the Dept. of Education were called for interview. In fact, the experience of Shri Ramaswamy and Trivedi is not different from the experience of petitioner No. 1. The reasons for excluding the petitioner No. 1 from consideration are not clear and obscure. In fact, the Selection Committee has never had opportunity to scrutinise and assess the petitioner No. 1. He was denied entry to interview hall by the then Vice-Chancellor on his own decision that the petitioner's experience cannot be said to be sufficient to qualify him for being considered. Mr. Yatin Oza is, therefore on a stronger footing when he submits that the petitioner No. 1 who was at least better qualified educationally than the respondent No. 3 was arbitrarily and capriciously kept out of consideration and that has resulted into denying equal opportunity in the matter of public employment. No justifiable reason is shown by the respondent Nos. 1 & 2 as to why the petitioner No. 1 was not called for interview by the Selection Committee. If it is on genuine ground that the petitioner No. 1 is not possessing requisite experience, then one fails to understand as to why Mr. Ramaswamy and Mr. Trivedi were called for interview despite the fact they also possess the same experience or identical experience to that of the petitioner No. 1. The exclusiion of petitioner No. 1, who was educationally qualified, from the consideration for the post of University Registrar is then a serious infirmity in the process of selection, more so, because the Selection Committee has no opportunity to even assess the suitability of the petitioner No. 1. If there is power to relax the educational qualification in the Syndicate, there is equal power to relax the requirement of experience in the Syndicate, The then Vice-Chancellor, Mr. Parekh, could not have at his sweet will and whim deprived the petitioner No. 1 of at least a right of consideration by the Selection Committee. However, I should, not be understood to have held that the petitioner No. 1 does not possess requisite experience. I held that the exclusion of petitioner No. 1 from the zone of consideration is arbitrary, discriminatory and violative of Articles 14 & 16 of the Constitution of India so as to render the entire process of selection null and void in law.
17. As regards petitioners Nos. 3 & 4, Mr. Oza submits that the advertisement dated 27th April, 1984 nowhere stated that there will be relaxation of educational qualification in case the qualified candidate was not available. Had the candidates been informed about the possibility of relaxation by the Syndicate, or had they been informed that the qualifications are relaxable by the Syndicate, the petitioners Nos. 3 & 4 who were not possessing requisite educational qualification could have competed by applying for the post. Failure to mention in the advertisement that the educational qualifications were relaxable and subsequent relaxation of educational qualification by the Syndicate in case of respondent No. 3 was violative of the right of petitioners Nos. 3 & 4 of being considered equally for the post of University Registrar. Petitioners Nos. 3 & 4 who were possessing educational qualification comparable to that of respondent No. 3 could have applied for the post and could have competed with respondent No. 3. In his submission, when the Sydicate decided to relax the educational qualification it ought to have decided to re-advertise the post with specific information to the candidates that the educational qualifications were relaxable. It was not competent for the Syndicate to relax the educational qualifications without power, and that has resulted into violation of rights of equality of the petitioners Nos. 3 & 4. In this connection, Mr. Yatin Oza invites my attention to the recent decision of Supreme Court in the case of The Dist. Collector & Chairman, Vizianagaram (Social Welfere Resident School Society) Vizianagaram and Anr. v. M. Tripura Sundari Devi reported in 1990 (2) Judgments Today 165 (SC). In the case before the Supreme Court it was concerned with the selection of respondent No. 3 to the post of Gr. I & II teacher. The qualification prescribed in the advertisement for the post was a second class degree in M.A. The respondent before the Supreme Court possessed IIIrd Class in M.A. However, the order of appointment was issued in her favour by mistake, but the order stated that her appointment was subject to production of original certificates. When she produced her original certificates, it was found that she was not educationally qualified for being appointed for the post of Gr. I & II teacher, and therefore, she was not allowed to join the service. The respondent, thereafter, approached the Andhra Pradesh Administrative Tribunal and the Tribunal decided in her favour. Being aggrieved by the judgment and order of the Tribunal the management went in appeal to the Supreme Court and the Supreme Court has observed as under:
It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice.
18. It, therefore, becomes clear that if an advertisement mentions particular qualification or if an advertisement refers to the prescribed qualification either by statutory or by executive fiat and appointment is made in disregard of such prescribed qualification by relaxing such qualification in favour of a candidate, entire class of persons holding inferior qualification is precluded from applying and thereby excluded from the zone of consideration. In fact, Court should not be a party to perpetuation of such fraudulent practice.
19. In this case, especially, when in the first attempt the University has failed to get eligible candidate, it could have very well stated in the advertisement that the qualifications were relaxable by the Syndicate which would have enabled the persons with inferior qualification or lesser experience to apply or and compete for the post. Unfortunately, the University did not do so. The then Vice-Chancellor of the University at his sweet will did not call the petitioner No. 1 for interview on his own decision that the petitioner No. 1 was not possessing requisite qualification. As regards respondent No. 3 despite the fact that he was not possessing the educational qualification he was called for interview and the then Vice-Chancellor has following explanation to give in his affidavit-in-reply for calling the respondent No. 3.
I say that the Respondent No. 3 was called because he had the qualifications in Law which was considered a desirable qualification. Respondent No. 3 had also the administrative experience of the Bombay University, which this University could look upon. I was of the opinion that he should be considered by the Selection Committee, looking to his experience and the qualifications possessed by him.
One fails to understand as to how the respondent No. 3 could be said to have possessed the requisite educational qualification. It is not understood as to under that power the then Vice-Chancellor decided to call the respondent No. 3 for interview despite the fact that he was not possessing the prescribed educational qualification and not to call the petititioner No. 1 despite the fact that he was possessing requisite educational qualification. The Selection Committee, therefore, had no opportunity of considering the eligible candidate like petitioner No. 1 for the post of University Registrars nor could it compare between the candidates like respondent No. 3 (who did not possess prescribed educational qualification) and the petitioners Nos. 3 & 4 who were equally situated inasmuch as all of them were not possessing prescribed educational qualification.
20. The Selection Committee, therefore, interviewed the candidates who were sent to it by the then Vice-Chancellor and it recommended the case of respondent No. 3 for relaxation of educational qualification, and thereafter, for his appointment for the post of University Registrar. The Syndicate, by its resolution, relaxed the educational qualification. The resultant effect is that the Selection Committee did not consider the persons like petitioner No. 1 who possessing prescribed educational qualification and it considered respondent No. 3 for the post of University Registrar by relaxing the requirement of educational qualification. It never thought that if educational qualification was relaxed other persons could compete for the post and they have at least right of being considered for the post. This resulted into excluding persons like petitioners Nos. 3 and 4 from the zone of consideration. They never applied for the post because they were not possessing requisite educational qualification. They were never informed that the educational qualification was relaxable or was likely to be relaxed. Therefore, they were kept out of consideration. It was not open for the University to relax the educational qualification subsequently without re-advertising the post and advertising the fact that the eductional qualifications were relaxable. The entire class of persons holding inferior qualification was thus excluded from consideration and that has resulted into negation of equality of opportunity in the matter of public employment to the petitioners Nos. 3 & 4 also. To the similar effect is the judgment of Supreme Court in the case of Miss Shainda Hasan v. State of U.P. and Ors. .
21. On the conclusions reached by me the appointment of respondent No. 3 shall have to be voided. The University shall have to be directed to re-advertise the post of University Registrar and to select the candidate in accordance with law. The question that is required to be answered is as to how the equities could be balanced. Mrs. K.A. Mehta for respondent No. 3 submits that the respondent No. 3 has left his permanent job of more than 22 years with the Bombay University and has accepted this appointment. His work has been found to be satisfactory by the M.S. University. After six years of his service at the M.S. University, if the respondent No. 3 is to be sent home, he would be rendered jobless and that would result into untold hardships and miseries not to him alone but to the members of his family. She, therefore, submits that direction identical to one which was granted by the Supreme Court in the case of Miss Shainda Hasan v. State of U. P. and Ors. (supra) should be given. In the said case before the Supreme Court the appellant worked on the post of Principal for over a period of 16 years and the Court therefore found that it was unjust to make her leave the post at that stage. Court, therefore, directed the University to re-consider the matter sympathetically and thereafter the University agreed with the Court that it was not just to ask the appellant to leave the job after 16 years service. Even in the case of Dist. Collector, Vizianagaram (supra) the Supreme Court permitted the respondent to continue on the post since the Court felt that it was unjust to deprive her of the post at that stage, though I must state that in that case the respondent before the Supreme Court subsequently acquired educational qualification, namely degree of M.A. with second class and qualified herself to be appointed to the said post.
22. However, in the facts of this case I shall have to keep in mind following factors:
(i) Respondent No. 3 was one of the 24 Assistant Registrar serving in Bombay University, and he was a permanent employee having service tenure of about 22 years. He was in search of some better prospects and wanted higher post.
(ii) When the respondent No. 3 applied for the post of University Registrar, he knew that he did not possess prescribed educational qualification.
(iii) Even after this selection for the post of University Registrar before he could assume charge of the post, he knew that there was serious challenge to his selection and appointment to the post of University Registrar on the ground that he did not possess requisite educational qualification. He, in fact, contested the earlier proceedings, and because of the order of stay granted by this Court, he was not permitted to resume duties. He, therefore, knew that when he accepted and resumed the post of University Registrar there was substantial challenge to his selection and appointment. He, in fact, resumed the office with specific understanding that his appointment was subject to the result of L.P.A.
(iv) Respondent No. 3 was, thus, ready and willing to take risk of leaving his permanent job and to accept the new assignment obviously subject to the result of L.P.A. Respondent No. 3 thus, accepted the post of University Registrar with clear understanding that there was substantial challenge to his selection and appointment and with understanding that in case his selection and appointment was set aside by the Court he would be losing the job.
(v) Even when the respondent No. 3 was to be confirmed on the post of University Registrar on completion of probation, Civil Application was filed in this Court and it was averred that his confirmation shall be subject to the result of petition. It is, therefore, clear that the respondent No. 3 accepted the appointment with full knowledge of the fact that there was substantial challenge to his appointment and that his appointment may be set aside if the petitioners succeed in the petition.
(vi) It is statede at the Bar and not disputed by respondent No. 3 that since last one year he is put under suspension pending departmental enquiry and till date he is under suspension. This fact individually is not decisive, but it is stated only for the purpose of bringing out the fact that respondent No. 3 is at present not actually discharging his duties as the University Registrar.
23. In the case of Miss Shainda Hasan v. State of U.P. and Ors. the appellant had continued on the post of Principal for over a period of 16 years. It was a very long period. The Court, therefore, left the matter to be decided by the University. In the case of Dist. Collector and Chairman, Vizianagaram v. Tripura Sundari Devi (supra) the respondent subsequently acquired educational qualification, and therefore, the Supreme Court permitted the respondent to continue on the post. That is not the position in the present petition. In view of the observation of the Supreme Court in the case of District Collector & Chairman v. Tripura Sundari Devi (supra) reproduced hereinabove. I am of the opinion that when an advertisement mentions a particular qualification and appointment is made in disregard to such qualification, it is not a matter only between the University and the appointee. All those persons who possess prescribed educational qualification and those who had similar educational qualifications to that of the appointee are, in fact, aggrieved by such appointment. Such an appointment of a person with inferior qualification is a fraud on public and as observed by the Supreme Court, the Court should not be a party to the perpetuation of fraudulent practice.
24. In view of these strong observations of the Supreme Court, I have no option but to declare that the appointment of respondent No. 3 to the post of University Registrar is bad, illegal and violative of Articles 14 and 16 of the Constitution of India. Consequent upon the said declaration, the respondent No. 1-M.S. University, hereinabove, is required to be directed to re-advertise the post of University Registrar along with relaxation clause, if it so decides, so as to permit the present respondent No. 3 to compete with other eligible candidates. The respondent No. 1-M.S. University is directed to undertake such exercise by 15th June, 1991 and till then the respondent No. 3 shall be permitted to continue as University Registrar.
25. Rule is made absolute subject to aforesaid direction with no order as to costs.