Jammu & Kashmir High Court - Srinagar Bench
Afsana Rashid vs University Of Kashmir & Ors. on 6 June, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No. 7
Regular list
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPA No. 49/2017
MP No. 01/2017 Date of Order: 6th June 2017
Afsana Rashid
Vs.
University of Kashmir & Ors.
Coram:
Hon'ble Mr. Justice Badar Durrez Ahmed, Chief Justice
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For appellant(s): Mr. Syed Faisal Qadiri, Adv.
For respondent(s): Mr. T. H. Khawaja, Adv.
i/ Whether to be reported in
Press/Media? Yes/No
ii/ Whether to be reported in
Digest/Journal? Yes/No
Badar Durrez Ahmed, CJ (Oral)
1. This appeal is directed against the order dated 21.04.2017 passed by a learned Single Judge of this Court in SWP No. 746/2014. The said writ petition was dismissed by the learned Single Judge by virtue of the impugned order.
2. The case pertains to the appointment to the post of Assistant Professor, Department of Media Education, Research Centre in the University of Kashmir, Srinagar. This case has had a long history and, therefore, the narration of the facts in the proper sequence would be necessary.
3. An advertisement was taken out for the said post on 19.02.2010. One of the conditions was that NET shall be a compulsory requirement for those with Post Graduate Degrees, LPA No. 49/2017 Page 1 of 10 but in respect of the candidates who belong to the J&K State and are not NET qualified, SET would be a compulsory requirement even if the candidates had M.Phil Degrees. However, a relaxation was made to the extent that candidates without NET or SET, but having a Ph.D. qualification in the subject concerned would be eligible to apply.
4. Before we proceed further, we must point out that the candidate who was selected namely Mr. Faheen was admittedly ineligible as he did not have NET or SET nor he did have a Ph.D. Degree. Consequent upon the advertisement, the Selection Committee received the applications and thereafter the Selection Committee met on 17.10.2011. The Assessment Sheet of the Selection Committee based on the UGC 100 points criteria was prepared in a tabulated form which is reproduced hereunder:-
UNIVERSITY OF KASHMIR, SRINAGAR Assessment Sheet of the Selection Committee Based on UGC 100 Points Criteria Post: Assistant Professor; MERC. Date of Selection Committee Meetings: 17.10.2011 S. No Name of Candidate Academic Assessment of Domain Interview Total out of Rank Record and Knowledge and Teaching Performance 100 Marks Research Skills (MM:20) Performances (MM:30) (MM: 50)
1. Mr. Shahnaz Bashir 16.18 24 16 56.18 II
2. Ms. Ruheela Hassan 12.80 17 12 41.80 VII
3. Ms. Manisa Qadir 13.45 17 12 42.45 VI
4. Ms. Shams Imran 09.75 13 10 32.75 VIII
5. Ms. Afshana Rashid 16.30 18 13 47.33 IV
6. Dr. Zubair Khurshid 14.0 16 13 43.0 V
7. Mr. Asif Khan 20.95 21 14 55.95 III
8. Mr. Faheen 16.85 26 18 60.85 I
5. From the above Assessment Sheet, it is evident that Mr. Faheen who was otherwise ineligible had been given the rank No. LPA No. 49/2017 Page 2 of 10 I, the appellant (Ms. Afsana Rashid) was given rank No. IV. We may also point out that Mr. Shahnaz Bashir was given rank No. II and Mr. Asif Khan was given rank No. III.
6. The recommendation made by the Selection Committee was for the appointment of Mr. Faheen as Assistant Professor in the Department of Media Education and Research Centre on the available post advertised. The recommendation, however, recorded that his appointment order shall be issued only after seeking the approval of the UGC by relaxing the condition of Ph.D/NET in his favour in view of his alleged excellent performance, specialized expertise in Electronic Media and his very long teaching experience. The recommendation also included a waiting list of two persons namely Mr. Shahnaz Bashir and Mr. Asif Khan. It is pertinent to note that the appellant who was placed at serial No. IV did not find place in the waiting list which was restricted to two.
7. Thereafter, certain candidates had approached the Chancellor regarding the eligibility and selection of Mr. Faheen for the said post of Assistant Professor. By a letter dated 25.05.2012, the Additional Secretary to Hon'ble the Governor (The Chancellor of the University) informed that the Chancellor had observed that the candidate recommended for the post should meet the minimum eligibility criteria for the post and also advised that the Vice Chancellor should consider (a) inviting the selection process afresh or (b) approve the next candidate in waiting, if any, LPA No. 49/2017 Page 3 of 10 recommended by the Selection Committee for the post. It was also communicated that allowing Mr. Faheen to appear in the interview without his meeting the eligibility criteria was to be treated as void ab-initio.
8. In the light of the direction given by the Chancellor, the University initiated the process of issuing the appointment order in favour of the candidate who figured at serial No. 1 in the waiting list (Mr. Shahnaz Bashir). However, as the University was about to issue the appointment order in favour of the said candidate, a stay order was passed by this Court in a writ petition filed by Mr. Faheen (SWP No. 1199/2012) on 07.06.2012. The order observed that the recommendation in favour of Mr. Faheen had been addressed to the UGC and that the same was pending consideration. During this time, the said communication dated 25.05.2012 had been issued which, according to the learned Single Judge hearing that writ petition, negated the very purpose of the recommendation. Consequently, the learned Single Judge kept the operation of the communication dated 25.05.2012 in abeyance. It is the stand of the respondents that because of the orders passed by this Court in SWP No. 1199/2012, the university could not issue the appointment order in favour of the candidate who figured at serial No. 1 in the waiting list.
9. Thereafter, the University received a communication dated 18.10.2012 from the UGC indicating clearly that there was no LPA No. 49/2017 Page 4 of 10 provision for relaxation for the eligibility criteria of NET/SET/Ph.D for the said post.
10. By an order dated 12.12.2013, a learned Single Judge of this Court dismissed Mr. Faheen's writ petition being SWP No. 1199/2012 in the following manner:-
"....7. In view of the fact that the University Grants Commission, which is the competent authority in this regard, have turned down the request of the University to grant relaxation in the essential qualification prescribed for the post of Assistant Professor, MERC, University of Kashmir, in favour of the petitioner, this petition has lost its sheet anchor, inasmuch as the petition was founded on the plea that the petitioner's case has been recommended for grant of relaxation. Consequently, no exception can be taken to the decision of the Chancellor, His Excellency the Governor, State of Jammu and Kashmir contained in the impugned communication no. GS-424(G)Apl/11-12/1825 dated 25.05.2012 addressed to the Vice Chancellor, University of Kashmir.
8. This petition is, accordingly, dismissed together with the connected CMPs. Interim direction, if any subsisting, shall stand vacated."
11. It is noteworthy that the learned Single Judge, while dismissing the writ petition, had clearly stated that no exception could be taken in respect of the Chancellor's decision contained in the communication dated 25.05.2012. In other words, the Court had given its imprimatur to the said decision taken by the Chancellor which was communicated through the letter dated 25.05.2012.
12. The appellant had also filed a writ petition being SWP No. 2416/2013 essentially requiring the respondents to take the selection process to its logical conclusion. However, the writ petition was disposed of by an order dated 12.12.2013 by LPA No. 49/2017 Page 5 of 10 observing that since the writ petition being SWP No. 1199/2012 stood dismissed, the University was free to proceed in the matter for concluding the process of selection and therefore the writ petition filed by the present appellant was treated as having been rendered infructuous. It was also indicated clearly that the petitioner's case would be governed by the judgment dated 12.12.2013 passed in SWP No. 1199/2012. We may also reiterate at this stage that the decision in SWP No. 1199/2012 had approved the decision of the Chancellor which was communicated through the letter dated 25.05.2012.
13. Instead of completing the selection process, the University brought out an advertisement being Advertisement Notice No. 01/2014 for the very same post. Being aggrieved by this, the appellant filed a representation before the University. The said representation was disposed of on 13.03.2014 by simply stating that since the name of the appellant did not figure even in the waiting list, her claim was not maintainable.
14. The case of the appellant is that since Mr. Faheen who was placed at rank No. I was ineligible and his selection was void ab- initio, Mr. Shahnaz Bashir ought to have been the selected candidate and, as a result, since the two were to be kept in the waiting list, the appellant would have figured at serial No. 2 in the waiting list. Therefore, the appellant's case was clearly deserving of consideration and could not have been thrown out as being not maintainable. However, since the respondents had rejected the LPA No. 49/2017 Page 6 of 10 representation of the present appellant, she filed another writ petition being SWP No. 746/2014 which came to be dismissed by the impugned order dated 21.04.2017. In that writ petition, the appellant had sought the quashing of the communication dated 13.03.2014 whereby her representation had been rejected by the respondents. She also sought the quashing of the Advertisement Notice No. 01/2014 in respect of the said post. A direction was also sought for quashing the selection process which had been initiated pursuant to the Advertisement Notice No. 01/2010 dated 19.02.2010. She, of-course, also sought the consequent appointment against the said post.
15. It seems that the learned Single Judge was impressed by the arguments of the respondents that the tenure of the initial Advertisement Notice No. 01/2010 had lapsed and that they had initiated the process of fresh selection for the said post and in that backdrop, the learned Single Judge was of the view that the petitioner's claim had become infructuous.
16. We are afraid that we are not agreement with this. It is evident from the sequence of events that Mr. Faheen who was ineligible had been given undue consideration by the University. In fact, even a letter seeking relaxation of the eligibility conditions had been sent to the UGC. The letter was sent in the year 2012 and they were awaiting the response from the UGC right up to 18.10.2012. It is strange that the University in the present proceedings has taken a plea that the tenure of the advertisement LPA No. 49/2017 Page 7 of 10 of 2010, had lapsed, particularly when it was actively pursuing the case of Mr. Faheen, even beyond the period of two years, this plea was not brought to the fore. In any event, according to us, Clause 3.4. of Chapter 3 of the University Statute which indicates that if the posts of teachers and non-teaching academic positions are not filled within two years from the date of the advertisement, the same shall be re-advertised is merely directory and not mandatory.
17. In any event, in the present case, the circumstances clearly indicate that the fault was on the part of the University and they cannot take advantage of their own wrong. Furthermore, there were at least two stay orders in the proceedings in two separate writ petitions before this court and that cannot operate to the disadvantage of the appellant. We may also note that the Chancellor had given two options to the Vice Chancellor as indicated in the communication dated 25.05.2012. The two options were:- (a) The Vice Chancellor could consider inviting the selection process afresh or (b) approve the next candidate in waiting, if any, recommended by the Selection Committee for the post.
18. It is evident from the communication dated 13.03.2014 whereby the appellant's representation had been rejected that the University took the second option and not the first. In other words, the University took the option of approving the next candidate in the waiting and the University had also initiated the process of issuing the appointment order in favour of the candidate figuring LPA No. 49/2017 Page 8 of 10 at Serial No. 1 in the waiting list. However, as per the University itself, it was prevented from doing so because of an order of stay passed in Mr. Faheen's writ petition where the communication dated 25.05.2012 was directed to be kept in abeyance. That writ petition was dismissed on 12.12.2013. It is thereafter, that the representation was filed by the present appellant and consequent upon the rejection thereof, the writ petition being SWP No. 2416/2013 had been filed by the present appellant. In these circumstances, particularly when the University itself opted for continuing the selection process by approving the next candidate in waiting, it cannot now fall back on an option which had been discarded as far back as in 2012.
19. In these circumstances, we are of the view that since Mr. Faheen was ineligible, he could not have even been called for the interview and, therefore, his candidature would have to be regarded as non-existent. If that be the case, it is Mr. Shahnaz Bashir who ought to be offered the appointment and as a consequence of this, the appellant would fall in place at serial No. 2 in the waiting list. The selection process, therefore, be continued and completed in this manner by first offering the post to Mr. Shahnaz Bashir and, in case it is not accepted by Mr. Shahnaz Bashir, the same be offered to the first candidate in the waiting list, that is, Asif Khan and, in case Asif Khan does not accept, then it be offered to the present appellant.
LPA No. 49/2017 Page 9 of 10
20. The impugned order is set-aside. The communication dated 13.03.2014 as also Advertisement Notice No. 01/2014 are also quashed.
21. With the above-said directions, the appeal is accordingly allowed.
(Sanjeev Kumar) (Badar Durrez Ahmed)
Judge Chief Justice
Srinagar
6th June 2017
Altaf.
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