Jammu & Kashmir High Court - Srinagar Bench
Parvaze Ahmad Wani vs Vice Chancellor on 12 October, 2021
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No. 2681/2019
Along with connected CMs
Reserved On: 11th of October, 2021
Pronounced On: 12th of October, 2021
Parvaze Ahmad Wani
... Petitioner(s)
Through:
Mr M. A. Wani, Advocate with
Mr Z. A. Wani, Advocate.
Versus
Vice Chancellor, SKUAST & Ors.
... Respondent(s)
Through: -
Mr M. Y. Bhat, Senior Advocate with Mr R. A. Bhat, Advocate for R-1 & 2; and Mr B. A. Zargar, Advocate for R-3.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
(JUDGMENT)
01. By medium of the instant Petition, the Petitioner has assailed the validity of Order bearing No. 615 (Est) of 2019 dated 22nd of July, 2019 issued by the Respondent No.2, insofar as it pertains to the selection and appointment of Respondent No.3, namely, Zahoor Ahmad Baba S/o Ghulam Hassan Baba R/o Sheerpora, Pattan, Baramulla, as Associate Professor/ Senior Scientist, Microbiology pursuant to advertisement notice No. 1 of 2018 dated 2nd of May, 2018. The Petitioner is also seeking a direction in the name of the Respondents 1 and 2, thereby commanding them to appoint the Petitioner as Page 2 of 10 WP (C) No. 2681 of 2019 Along with connected CMs Associate Professor in the discipline of Microbiology strictly as per his qualification and merit with all consequential benefits.
02. The material facts leading to the filing of the Petition on hand, as come to the fore from the Petition of the Petitioner, are that the Respondent No.2 issued advertisement notice No. 01 of 2018 dated 2 nd of May, 2018 inviting applications for various posts, including one post of Associate Professor in the faculty of Microbiology. The Petitioner, being eligible, claims to have submitted his application form along with all required certificates/ testimonials in tune with the advertisement notification before the concerned authority. After culmination of the selection process, the Respondents 1 and 2, vide Order No. 589 (Est) of 2019 dated 15th of July, 2019, is stated to have appointed one Dr. Mehraj-ud-Din Shah as Associate Professor in Microbiology, however, since, the said Dr. Mehraj-ud-Din Shah was also appointed as Associate Professor in Plant Pathology in terms of Order No. 569 (Est) of 2019 dated 15th of July, 2019, as such, the Petitioner approached the Respondent No.2 for cancellation of the order of the said Doctor as Associate Professor in Microbiology. Accordingly, the Respondent No.2 issued Order No. 315 (Est.) of 2019 dated 22nd of July, 2019, whereby, while cancelling the appointment of the said Dr. Mejraj-ud-Din Shah as Associate Professor, Microbiology, the Respondent No.2 appointed Respondent No.3 as Associate Professor/ Senior Scientist, Microbiology on the ground of him figuring at S. No. 01 in the Waiting List in the order of merit prepared by the Selection Committee in its recommendations duly approved by the Board of Page 3 of 10 WP (C) No. 2681 of 2019 Along with connected CMs Management at its 67th meeting held on July 15th, 2019. It is this Order 22nd of July, 20198 that has been challenged by the Petitioner herein this Petition.
03. Mr M. A. Wani, the learned Counsel for the Petitioner, submitted that the selection and appointment of the Respondent No.3 has been made by the Respondent University in gross violation of the mandate of advertisement notice as well as the rules governing the subject inasmuch as the Respondent No.3 is not eligible for the post in question. While elaborating the submission, the learned Counsel submitted that the Respondent No.3 is not having the requisite experience of more than 10 years as prescribed in the advertisement notice, thereby making him ineligible for the post of Associate Professor, Microbiology. It is contended that the certificate issued by the Head of the Department of Social Sciences of the Respondent University, on which reliance has been placed qua the experience of the Respondent No.3, cannot be taken into consideration when the Respondent No.3 was not working in the Department of Microbiology and was instead working in some other subject.
It is further pleaded that the Respondent University cannot also take recourse to the note appended to the advertisement notification providing for candidates having post-Graduate qualification in other subject/ discipline when the eligible candidate is already available from the relevant subject of Microbiology.
04. Objections stand filed on behalf of the Respondents. Page 4 of 10 WP (C) No. 2681 of 2019
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05. Respondents 1 and 2, in their Objections, have, while resisting the Petition of the Petitioner, stated that all the candidates who had applied for the post of Associate Professor-cum-Senior Scientist, Microbiology were declared eligible on the basis of meeting the eligibility requirement and, accordingly, invited for interview before the Selection Committee through e- communication jointly addressed to all the eligible candidates. It is contended that the said e-communication addressed to all the candidates was self- explanatory to the extent of declaring all the candidates eligible for the post of Associate Professor/ Senior Scientist (Microbiology) pursuant to Advertisement Notice No. 01 of 2018. It is argued that the Petitioner, who claims himself as the lone eligible candidate for the said post, at this stage, denies the fact that other candidates, whose names appeared in the e- communication call letter addressed to the Petitioner too, were also invited for interview based on their eligibility for the post. It is further submitted by the Respondents that the Petitioner having acted upon the said communication and appeared in the interview cannot, now, after being unsuccessful in the selection process, turn around and challenge the eligibility of the private Respondent. It is, in these circumstances, urged that mere possession of the requisite qualification for any post does not automatically confer any right to the candidate for appointment on the said post and that the selection of the concerned candidate to the post in question was purely based on merit and recommendations of the Selection Committee constituted for the purpose. Page 5 of 10 WP (C) No. 2681 of 2019
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06. The Respondent No.3 has also filed his Objections to the Petition of the Petitioner, stating therein that he is having 11 years teaching/ research/ extension experience in the field of Microbiology. It is submitted that the Respondent No.3 has the requisite experience working in the discipline of Microbiology and that the certificate of experience was issued in this behalf by the Director, Research vide letter No. AU/DR/7530 dated 2nd of February, 2019. It is pleaded that although teaching of M.Sc/Ph. D Microbiology programme was started in the year 2016, but the Research and extension work has been going on in the University since its establishment and the Respondent No.3 has been actively involved in Microbiology related research/ extension activities throughout. It is contended that the note appended to the advertisement notification is as per procedure and that the said procedure/ notification has not been challenged by the Petitioner when the advertisement notice was issued by the Respondent University and he participated in the selection process without any demur. The Respondent No.3 has proceeded to state that the Selection Committee, taking into consideration his merit and experience in the field of Microbiology, found him eligible and suitable for the post of Associate Professor in Microbiology. It is also submitted that the experience certificate in favour of the Respondent No.4 has been issued by Director, Research who is the overall guardian of the research in the University and is qualified enough to issue the experience certificate.
07. Heard learned Counsel for the parties, perused the pleadings on record and considered the matter.
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08. When this Petition came up for consideration before the Court on 5th of February, 2020, the Court, while issuing notice to the other side, directed that the selection and appointment of the private Respondent, i.e., Respondent No.3 herein, shall remain subject to outcome of the Writ Petition.
09. The main ground projected by the Petitioner qua the selection and appointment of the Respondent No.3 as Associate Professor/ Senior Scientist, Microbiology pursuant to advertisement notice dated 2 nd of May, 2018 is that the Respondent No.3 was not ineligible as he did not have the Post-Graduate degree in the relevant subject of Microbiology. Besides, the Petitioner has also contended that the Respondent No.3 did not have the requisite working experience. The Respondent-University as well as the Respondent No.3 have contended that the note provided in the advertisement notification concerned clearly provided for candidates holding post-graduate qualification in other subject/ discipline to be eligible as well.
10. It is vehemently argued by the learned Counsel for the Respondent-University as well as the learned Counsel representing the Respondent No.3/ selectee, and rightly so, that the Petitioner having participated in the selection process knowing fully well all the terms and conditions of the advertisement notice, including the note appended thereto providing for candidates having Post-Graduate qualification in other subject/ discipline, that were to govern the selection process cannot be permitted to turn around and assail the selection process after he fails to make the grade. Page 7 of 10 WP (C) No. 2681 of 2019
Along with connected CMs The right and proper course for the Petitioner, in the present case, was to question the note in case he had reason to believe that the said note was in conflict with the mandate of rules governing the field and get the selection process deferred till his claim was dealt with. However, once the Petitioner participated in the selection process and volunteered to be governed by the selection criteria notified by the respondent University, he cannot be heard complaining about the selection only after he failed to make the grade, more specifically the note provided in the advertisement notice. The Petition, on the said ground alone, is liable to be dismissed.
11. Law on the aforesaid issue is no more res-integra. The Hon'ble Supreme Court, in case titled 'Union of India v. N. Chandrasekharan: (1998) 3 SCC 675', while deciding the case involving the similar issue, in Paragraph No.13, has observed as under:
"We have considered the rival submissions in the light of the facts presented before us. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before Departmental Promotion Committee. Therefore, they cannot turn around and contend later that when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report."
12. Again, in case titled 'Amlan Jyoti Borooah v. State of Assam:
(2009) 3 SCC 227', the Apex Court of the country, while deciding a case pertaining to selection against the post of Sub Inspector by direct recruitment, observed that a candidate who had subjected himself to a particular selection process could not question it later on after being declared as unsuccessful on Page 8 of 10 WP (C) No. 2681 of 2019 Along with connected CMs the prayer of Estoppel, acquiescence and waiver. It is, thus clear that the law on the issue is well settled to the point that the candidates who had participated in the selection process knowing fully the procedure laid down were not entitled to question the same.
13. As regards the other issue of experience/ merit, the Respondent- University has clearly contended that the Respondent No.3 has the requisite experience as provided in the advertisement notice inasmuch as he was imparting instructions to the Under-Graduate and Post-Graduate students in the discipline of Microbiology prior to his appointment as Associate Professor-cum-Senior Scientist. It is also evident from the pleadings on record that the Respondent No.3 has also served as a guide to a number of students both at Masters and Ph. D level, besides having State and National Funding Agencies (DST/DBT/UGC GoI) external projects handled by him as Principal Investigator (PI) and Co-Principal Investigator (Co PI), coupled with more than 30 publications in reputed National and International Journals. That apart, the Respondent-University, in their Objections to the Supplementary Affidavit filed by the Petitioner, in order to lend clarity to the entire issue of merit and qualification of the Petitioner and Respondent No.3, have given the comparative merit and qualification of both the competing candidates, which is reproduced hereunder:
S. No. Respondent No. 3 Petitioner
1. Qualified National Eligibility Test in Soil Qualified NET in Microbiology Science-Soil Chemistry/ Fertility/ (Agriculture Science) Microbiology Page 9 of 10 WP (C) No. 2681 of 2019 Along with connected CMs
2. Studied Microbiology Course during Ph. D No Microbiology subject studied Degree with 84.10% marks during Ph. D Degree (without course work)
3. Developed 16 novel beneficial bacterial No microbial development and fundal products for use in crop improvements and solid waste management
4. Executed 13 externally funded projects on Only 3 projects (as per details Microbiology from state and National with applicable form) Funding agencies like UGC, Department of Science and Technology, New Delhi and Department of Biotechnology, New Delhi etc.
5. Registered gene sequences of some elite No microbial strain registered microbial strain with National Centre for Biotechnology Information.
6. Creation and maintenance of broad Nil spectrum germplasm of beneficial microorganisms in SKUAST-K
7. Guided and co-guided 11 M.Sc and Ph. D 7 students for Microbiology
8. Involved in 17 in house (University 2 Research Projects)
9. Total points obtained as per Academic 1106.35 Performance Index Score card= 4581
10. Undergone 7 Special training courses in 1 Microbiology fields
11. Ph.D thesis title "Response of Strawberry to Microbiology (Agriculture the Application of Microbial Inoculants" Sciences) Academics
1. Marks obtained in Ph. D = 84.10% Marks obtained in Ph. D = NA (without Course work)
2. Marks Obtained in M. Sc. = 89.10 % Marks Obtained in M. Sc. = 67.06 %
3. Marks obtained in B. Sc. = 65.74% Marks obtained in B. Sc = 56.64% On a simple analysis of the aforesaid comparative statement, it becomes axiomatic beyond any shadow of doubt that the Respondent No.3 was not only eligible for the aforesaid post of Associate Professor, Page 10 of 10 WP (C) No. 2681 of 2019 Along with connected CMs Microbiology in tune with the advertisement notice dated 2nd of May, 2018 on the basis of his qualification and experience, but also was more meritorious than the Petitioner, hence his selection and appointment on the aforesaid post, as made in terms of the Order impugned, cannot be said to be erroneous.
14. For the foregoing reasons, I do not find any merit in the Petition of the Petitioner which, accordingly, is hereby dismissed. Interim direction(s), if any subsisting as on date; including the one passed on 5th of February, 2020, shall stand vacated.
15. Pending application(s), if any, shall stand disposed of accordingly.
(Ali Mohammad Magrey) Judge SRINAGAR October 12th, 2021 "TAHIR"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2021.10.12 14:40
I attest to the accuracy and
integrity of this document