Rajasthan High Court - Jaipur
Nemi Chand Singh vs State Education Department Ors on 6 February, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 15332/2016
Nemi Chand Singh S/o Shri Narayan Singh, By Caste- Jat, G 1,
Anandvihar, Kothi Road, Civil Lines, Jhalawar
----Petitioner
Versus
1. State Of Rajasthan Through Its Additional Chief Secretary,
Department Of Technical Education Government of
Rajasthan, Secretariat, Jaipur
2. Government Engineering College Jhalawar Through Its
Registrar, Sunel Road, Gram Chandlai, Tehsil-
Jhalarapatan, District Jhalawar
3. Dr. Mithilesh Kumar, Principal, Government Engineering
College, Sunel Road, Gram Chandlai, Tehsil- Jhalarapatan,
District Jhalawar
----Respondents
For Petitioner(s) : Mr. R.N. Mathur Senior Advocate assisted by Mr. Punit Singhvi, Adv.
For Respondent(s) : Mr. C.L. Saini, AAG
Mr. Tanveer Ahmed, Adv.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Order
Reserved on 17/01/2019
Pronounced on 06/02/2019
1. By way of this writ petition, petitioner has assailed
termination order dated 20/10/2016 with prayer to quash the same and reinstate him on the post of Reader (Associate Professor), Computer Science. He has further prayed for imposing exemplary costs on the respondents for causing harassment to the petitioner since July, 2014.
(2 of 17) [CW-15332/2016]
2. Brief facts, which cull out from the pleadings, are that the petitioner had applied for the post of Reader in terms of an advertisement issued by the respondents wherein the qualifications and pay-scale for the post were mentioned as per norms of All India Council for Technical Education (for short, 'AICTE'). The petitioner had applied and the selection committee recommended of his selection and he was placed at no.2 in the selection panel. The person, who was placed at no.1 in the selection panel, had been selected elsewhere and did not join and therefore, the post was offered to the petitioner and he joined on the said post after the approval from the Government on 11/06/2008 as Associate Professor. Vide order dated 12/08/2010, he as confirmed on the post w.e.f. 11/06/2010.
3. The qualifications possessed by the petitioner for appointment on the post of Associate Professor became a subject matter of enquiry by a committee formed for the said purpose by the Principal on the basis of a complaint filed by one Vikas Kulshreshtha on 15/07/2014.
4. The petitioner challenged the said constitution of committee before this Court by filing SB Civil Writ Petition No.10205/2014 impleading Vikas Kulshreshtha and Sharad Maheshwari as party alleging malafides. While initially an interim order was passed by the Court, on 15/07/2015 the writ petition was dismissed and interim order was vacated with observations that "It is however directed that in the course of an inquiry against the petitioner with regard to his appointment as Associate Professor, the petitioner shall be heard and allowed due opportunity to defend his case. It is further directed that such inquiry against the petitioner be conducted by the Principal Secretary, Technical Education or his (3 of 17) [CW-15332/2016] nominee with a rank not below that of Special Secretary, Government of Rajasthan and be completed within three months from the receipt of a certified copy of this order. The petitioner would be under an obligation to cooperate in the inquiry and non- corporation will entail ex-parte proceedings. Further in the case of allegation of omission/commission by the petitioner in the course of discharge of duties subsequent to his appointment as Associate Professor, the respondent-College shall be free to resort only to an inquiry under CCA Rules 1958."
5. Thereafter, an enquiry was conducted by the Additional Chief Secretary.
6. The petitioner submits that he is having qualification of M.Sc. (Computer Science) from MD University, Rohtak and was further awarded Post Graduation in Master of Computer Application (MCA) (Distance Education Mode) in July, 2004 from M.D. University Rohtak through lateral entry by qualifying last two semesters after the M.Sc. (Computer Science). On the basis of M.Sc. (Computer Science), he became eligible for taking admission to the third semester of M.Tech. (Computer Science) course offered by Janardhan Rai Nagar Rajasthan Vidyapeeth (Deemed) University, Udaipur through its lateral scheme of admission. He completed his Masters in Technology through Distance Education Mode in the year 2005. One time Ex-Post-Facto approval was granted by the committee constituted by the University Grants Commission (UGC) for the students admitted under the Distance Education Mode by JRN Rajasthan Vidyapeeth, Udaipur in the courses from 01/06/2001 to 31/08/2005 vide letter dated 03/07/2006. The Distance Education Programme, thus, was approved by the UGC, AICTE and Distance Education Council Joint Committee vide its (4 of 17) [CW-15332/2016] letter dated 13/11/2007 and the letter of approval was conveyed by the DEC on 29/08/2007.
7. The Additional Chief Secretary, after looking into the qualifications of the petitioner and the documents placed by the College Authorities, submitted his report on 08/09/2016 and gave a finding that the selection process and the procedure adopted does not have any ambiguity. In his report, he has mentioned about there being another complaint by one Kapil Sharma, Mandal BJP, Jhalawar wherein apart from several allegations against the petitioner, it has also been mentioned that the petitioner was having ideology against the BJP and would, therefore, cause an atmosphere of indiscipline and chaos. There was also another complaint by one Giriraj Kumar Patidar, who is also stated to be a member of the political party. The Additional Chief Secretary (Technical Education), after noting the report of the earlier Committee which was not accepted by the High Court, has proceeded to give his concluding remarks and held that the selection was duly approved by the Hon'ble Minister, Technical Education and the Principal Secretary, Technical Education Department as far as MCA, M.Tech. is concerned and since one time Ex-Post-Facto approval has been granted, the same was not questionable. As far as experience is concerned, the view of the Additional Chief Secretary was that the petitioner did not possess the experience of five years as required and had teaching experience from 01/02/2004 to 12/02/2008 i.e. 4 years and 10 days while the experience gained as System Analyst could not be equated with natural experience or teaching experience as a Lecturer but ultimately, it was his opinion that the Government Engineering College, Jhalawar is an autonomous institution and (5 of 17) [CW-15332/2016] the Board of Governors which is the appointing authority over the staff should enquire independently into the required experience as well as required qualifications before taking any punitive action against him. Thereafter, termination order was passed vide order dated 20/10/2016 holding that the petitioner does not have the minimum qualifications prescribed for teaching post in technical education and the degree of M.Tech. in Computer Science was not recognized and approved by the AICTE and further the petitioner did not possess the required minimum experience for teaching post in technical education.
8. The petitioner has made following submissions:-
(a) That he never concealed his educational qualifications from the Selection Committee;
(b) That the Additional Chief Secretary found the selection process to be fair and the qualifications were found to be proper;
(c) That no enquiry was conducted by the College independently regarding educational qualifications of the petitioner after the report submitted by the Additional Chief Secretary as directed by this Court.
(d) That after the termination order has been passed, the Supreme Court in the case of Orissa Lift Irrigation Corporation Ltd.
Vs. Rabi Sankar Patro: 2018(1) SCC 468, directed the AICTE to conduct examinations for the students who did their education by Distance Education Mode between 2001 and 2005. Further, it has been stated that the petitioner was not required to have B.Sc. (Computer Science) and the interpretation of the qualifications was wrongly made with a malafide intention to oust the petitioner.
(e) It is further submitted that the petitioner possessed the requisite five years' experience. As per requirement, a candidate (6 of 17) [CW-15332/2016] was eligible if he possessed five years' experience in teaching/industry/research at the level of Lecturer or equivalent. The petitioner was having 4 years and 10 months teaching experience as a Lecturer and an industrial experience of 5 years and three months as a System Analyst with the Government Institute. The Selection Committee considered his experience and found him eligible and thus, his submission is that once an expert body in its wisdom found both the experiences shown by the petitioner and selected him for the said post and the said procedure of selection was found to be just and proper, the experience gained as System Analyst could not be ignored. A System Analyst also performs teaching work in the Government Institute apart from performing the industrial work. It is further submitted that a clarification was sought from AICTE regarding his experience by submitting a representation and the AICTE did not object to the selection conducted by the Selection Committee upholding that it is for the Selection Committee to take a decision with regard to the experience and the AICTE will not comment on its decision. Thus, the College Authorities could not have challenged the decision of the Selection Committee and the action was suffered from malice in law as well as on facts.
(f) Additionally, the petitioner also submits that the selection process and appointment of the petitioner was challenged at the behest of the political persons who were not head of the petitioner's ideology after a period of 7 years of selection and confirmation. There was no concealment or fraud or mis- representation by the petitioner and no show cause notice was served upon the petitioner before taking decision of terminating his services by the Board of Governors. It is also submitted that (7 of 17) [CW-15332/2016] no action or notice was ever proposed against the Selection Committee which selected the petitioner.
9. In support of his submissions, learned counsel for the petitioner has relied upon the judgment in the case of Orissa Lift Irrigation Corporation Limited Vs. Rabi Sankar Patro and others:
(2018)1 SCC 468; Buddhi Nath Chaudhary and ors. Vs. Abahi Kumar and others: (2001) 3 SCC 328; Bholanath Mukherjee & ors. Vs. R.K. Mission V. Sentuary College & ors.: (Civil Appeal No.2457 of 2006), decided by the Apex Court on 18/04/2011;
G.N. Nayak Vs. Goa University and ors.: (2002) 2 SCC 712 and Basavaiah Vs. H.L. Ramesh and ors.: (2010) 8 SCC 372.
10. Learned counsel appearing for respondent no.2 has submitted his written submissions and his contention is that the selection was to be conducted as per the AICTE norms prevailing at the time of issuance of the advertisement and as per the said norms, following qualifications were required:-
Assistant Professor Ph.D degree with the first class at Bachelor's Qualification & or Master's level in the appropriate branch Experience for of Engineering/Technology with 2 years candidates from experience in Teaching/ Industry/ Research teaching at the level of Lecturer or equivalent.
OR First class at Master's level in the appropriate branch of Engineering/ Technology with 5 years experience in teaching / Industry/ Research at the level of lecturer or equivalent. Such candidate will be required to obtain Ph.D degree within a period of 7 years from the date of appointment as Assistant Professor. In the case of Universities/ University departments and the institutions offering PG programmes/ Research, Ph.D is a must. For Candidate from industry, Professional experience in R & D and patents would be (8 of 17) [CW-15332/2016] desirable requirement failing which the increments will be stopped until Ph.D is earned.
Qualification & Candidates from Industry/Profession with Experience for First Class Bachelor's degree in the Candidates from appropriate branch of Engineering/ Industry & Technology or First Class Master's Degree in Profession the appropriate branch of Engineering/ Technology.
AND Professional work which is significant and can be recognized as equivalent to Ph.D degree and with 2 years experience at a position equivalent to lecturer level would also be eligible.
11. It is stated on behalf of respondent no.2 that the qualifications of the petitioner was B.Sc., M.BA. M.CA and M. Tech.. Thus, for the post of Associate Professor in Computer Science in terms of Note No.2, he did not possess the basic qualification of B.Sc. with First Class Degree (Bachelors' Degree) alongwith First Class Master Degree in Computer Science Engineering.
12. Further, it is submitted on behalf of respondent no.2 that the petitioner was falling short of required teaching experience of five years and the teaching at 'Rajasthan Swayat Shashan Mahavidhalaya, Jaipur was only for a period of 4 years and 10 days. It is submitted that the experience as System Analyst with the Rajasthan Institute of Local Self Government, Jaipur cannot be treated as teaching experience/ experience with Industry/ experience of Research. The qualifications acquired through Distance Education Mode are not recognized by the AICTE and are not valid qualifications. Thus, as there was a specific requirement under Note No.2 of AICTE norms, the petitioner cannot be said to (9 of 17) [CW-15332/2016] be duly qualified. Learned counsel in the written submissions has referred to the words 'in lieu of' to mean 'in place of'. Since the petitioner did not possess B.Tech./BE qualification and First Class in both the levels is necessary, the petitioner could not be said to possess the minimum qualification. In written submissions, learned counsel has also proceeded to submit that the Selection Committee which had given marks to the various candidates had conducted a faulty exercise and learned counsel has proceeded even to state that the members of the Scrutiny Committee were not from the discipline of Computer Science and Engineering as all the members were holding the post of Lecturer only. It is his submission that the unqualified person could not have been appointed by the Selection Committee. Learned counsel has also relied on the earlier Committee report to submit that the Committee had found the petitioner to be unqualified to hold the post. It is submitted that the petitioner was holding the post of Registrar and then the post of Principal of the College and there was no occasion for him to take action against himself. He also relies on the report o the Additional Chief Secretary with regard to the observations that the experience as System Analyst cannot be equated with industrial experience or teaching experience as a Lecturer. It is submitted that the guidelines have been framed for industrial experience vide notification dated 04/01/2016 which lays down how the industrial experience shall be counted and submits that System Analyst is a promotional post and the qualification required was not possessed by the petitioner of the Analyst-cum-Programmer and therefore, the experience gained by him there in could not be taken into consideration. Learned counsel relies on the judgments rendered by the Apex Court in the (10 of 17) [CW-15332/2016] case of Sheshrao Jangluji Bagde Vs. Bhaiyya: 1991 AIR 76 and Ganapath Singh and ors. Vs. Gulbarga University Rep. By its Registrar and ors.: (2014) 3 SCC 767.
13. Learned Additional Advocate General has also appeared and he reiterates the submissions as made by learned counsel for the respondent no.2 but has not filed any separate reply.
14. On the basis of the aforesaid arguments made at bar and in the written submissions, this Court finds that the singular issue which needs to be adjudicated is whether the petitioner possesses the requisite qualifications for the post of Reader/Associate Professor in Computer Science as per the AICTE norms and the experience required in terms of the AICTE norms ?
15. The supplementary question which would arise for adjudication would be whether the order of removal dated 20/10/2006 is illegal and unjustified ?
16. Though the petitioner has alleged of frivolous complaints having been made with regard to his qualifications, by certain interested persons, but this Court is of the view that once the authorities are having a doubt whether by way of complaint or by way of any other method regarding validity of qualifications of their employee, it would be most appropriate for the said authorizes to verify the said qualifications. Such action of re- verification, in the opinion of this Court, cannot be said to be unjustified or illegal. Such decision to enquire into the qualifications cannot be set aside on the ground that the same are actuated by malice as it would be always in the interest of the administration that the qualifications possessed by a person ought to be in accordance with the norms and if he has obtained employment wrongfully, the same requires to be checked.
(11 of 17) [CW-15332/2016]
17. Thus viewed, the question, therefore before this Court, would be only with regard to the qualifications possessed by the petitioner. As per the AICTE norms, the qualifications required are in the alternative (i) Ph.D. degree with first class at Bachelor's or Master's level in the appropriate branch of Engineering/ Technology with 2 years experience in Teaching/Industry/Research at the level of Lecturer or equivalent or alternatively, (ii) First Class at Mater's level in the appropriate branch of Engineering/ Technology with 5 years experience in teaching/Industry/ Research at the level of lecturer or equivalent. Such candidates will be required to obtain Ph.D. degree within a period of 7 years from the date of appointment. In the Note 2 appended to the aforesaid qualifications, it has been mentioned that for the discipline of Computer Science Engineering/Technology, in lieu of the "First Class degree at Bachelor's and/or Master level in the appropriate branch", "a first class Master's Degree in Computer Science Engineering/Technology together with a First Class Bachelor's Degree in any area of Engineering Technology" will be acceptable.
18. The aforesaid Note 2 has been understood in the light of two different alternative qualifications. A close look would reveal that the qualification mentioned in Note 2 is in place of the qualification mentioned in the (i) alternative where first class Computer at Bachelor's or Master's level is mentioned. Such a qualification is not mentioned in the (ii) alternative qualification.
19. Admittedly, the petitioner was not appointed on the basis of the qualification mentioned at (i), referred to above but was appointed on the basis of the qualification as mentioned at (ii), referred to above. In the qualification mentioned at (ii), as (12 of 17) [CW-15332/2016] referred to above, the word "Bachelor's level degree" is missing. Thus, the basis of holding the petitioner to be not qualified for not having first class Bachelor's degree in any area of Engineering/ Technology, is wholly a misconception and this Court holds that the petitioner could not be disqualified on that count.
20. The next question is with regard to authenticity of the qualification obtained by the petitioner. In the case of Orissa Lift Irrigation Corporation Ltd. Vs. Rabi Sankar Patro (supra), the qualification held by the petitioner in that case was subject matter of examination and the Apex Court has directed as under:-
"58. The AICTE is directed to devise within one month from the date of this judgment modalities to conduct appropriate test/tests both in written examination as well as in practicals for the concerned students admitted during the academic sessions 2001- 2005 covering all the concerned subjects. It is entirely left to the discretion of AICTE to come out with such modalities as it may think appropriate and the tests in that behalf shall be conducted in the National Institutes of Technology in respective States wherever the students are located. The choice may be given to the students to appear at the examination which ideally should be conducted during May-June, 2018 or on such dates as AICTE may determine. Not more than two chances be given to the concerned students and if they do not pass the test/tests their degrees shall stand recalled and cancelled. If a particular student does not wish to appear in the test/tests, the entire money deposited by such student towards tuition and other charges shall be refunded to that student by the concerned Deemed to be University within a month of the exercise of such option. The students be given time till 15 th of January, 2018 to exercise such option. The entire expenditure for conducting the test/tests in respect of students who wish to undergo test/tests shall be recovered from the concerned Deemed to be Universities by 31.03.2018. If they clear the test/tests within the stipulated time, all the advantages or benefits shall be restored to the concerned candidates. We make it clear at the cost of repetition that if the concerned candidates do not clear the test/tests within (13 of 17) [CW-15332/2016] the time stipulated or choose not to appear at the test/tests, their degrees in Engineering through distance education shall stand recalled and cancelled. It goes without saying that any promotion or advancement in career on the basis of such degree shall also stand withdrawn, however any monetary benefits or advantages in that behalf shall not be recovered from them."
21. As has come on record, the petitioner has appeared in the examination and has successfully qualified the examination. Certificate For Validation of Degree (PG-Engineering) has been issued by the UGC which is required to be quoted reads as under:-
" AICTE-UGC Special Examination CERTIFICATE FOR VALIDATION OF DEGREE (PG- Engineering) (As per Hon'ble Supreme Court decision dated 03.11.2017 in CA Nos. 17869-17870/2017 arising out of Special Leave Petition © Nos. 19807-19808/2012) It is certified that Nemi Chand Singh Son/Daughter of Narayan Singh appeared in AICTE-UGC special theory and Practical examination, Roll No. 480229 conducted during June 10 to 12, 2018 for validation of his/her Computer Science & Engineering/ Computer Science/ Computer Engineering degree awarded by JRN Rajasthan Vidyapeeth, Rajasthan (Enrolment No. De- II/2003/52482).
He/She has successfully qualified the examination and the degree stands validated.
(Prof. A.P. Mittal) (Prof. Rajnish Jain)
Member Secretary, AICTE Secretary, UGC"
22. In view of the observations of the Apex Court that "all the advantages and benefits shall be restored to the candidate concerned", the qualification on the basis of which the petitioner was appointed, would be treated to be restored from the day he passed the examination and thus he will have to be treated as duly qualified. The decision of the respondents holding the petitioner to be unqualified, is held to be illegal and unjustified.
(14 of 17) [CW-15332/2016]
23. The question regarding experience needs to be examined.
24. As per (ii) alternative qualification, as referred to above, on the post of Lecturer or equivalent is required to be considered.
The selecting body found the petitioner to have 4 years and 1 month experience in the teaching field and 5 years and 3 months experience in the industrial field as is apparent from the selection sheet of the Selection Committee. The report prepared by the Additional Chief Secretary, however, states that the experience gained as a System Analyst by the petitioner cannot be equated with industrial experience or teaching as a Lecturer as per his view and is thus is short of required experience.
25. The contention of counsel for the petitioner is that when the petitioner asked the AICTE regarding clarification about the mandatory experience, the AICTE has informed that it is within the purview of the Selection Committee constituted for the purpose to take a decision vide their letter dated 05/06/2017 and therefore, the question has been left to be decided by the Selection Committee. This Court is thus of the view that whether a person possesses experience or not in a particular field and whether the said experience is to be counted for the purpose of treating the same as a teaching/industrial/research, neither this Court nor an officer of the Government can substitute its opinion to that of the Selection Committee. Once a Selection Committee has been formed and faith has been reposed in the said Selection Committee for selecting the best experienced candidate, the question whether the experience gained as a System Analyst should be counted as industrial experience or not counted at all, should be left best for the said Selection Committee to decide. It is noticed that the Additional Chief Secretary, while submitting his (15 of 17) [CW-15332/2016] report, has observed that the Government Engineering College and its appointing authority has to enquire independently into the required experience as well as the required qualifications before taking any punitive action.
26. This Court finds that there is no independent enquiry conducted. Accordingly, the experience, which had already been examined at the stage selection by the Selection Committee and thereafter by the Appointing Authority at the time of approval of appointment, would not be a subject matter of re-examination.
27. In the case of Buddhi Nath Chaudhary and ors. Vs. Abahi Kumar and others (supra), where the appointments were challenged by candidates who had already been selected and had already put in several years of service and the question regarding their qualification or experience was raised after several years, the Apex Court held as under:-
"4. We fail to understand as to how the matter of selection and appointment to a post could have been entrusted to the Transport Commissioner when the Commission had been specifically entrusted with such a job and such Commission, which is an autonomous authority having a constitutional status, has selected the candidates whose appointments were in challenge. If the selection of these candidates was improper the same should have been set aside with appropriate directions to redo the process of selection orat best, the High Court could have directed the Government, which is the appointing authority, to take appropriate steps in the matter. However, in the facts and circumstances of this case, we need not dilate on this aspect nor do we need to examine various elaborate contentions addressed by either side. Suffice to say that all the selected candidates, who are in employment, except one, possess necessary qualification and in regard to that one excepted candidate, it cannot be disputed that he possesses equivalent qualification. Thus the dispute narrows down to one aspect, that is, the selected candidates may not possess necessary experience (16 of 17) [CW-15332/2016] which is now required to be examined by the Transport Commissioner.
5. The selected candidates, who have been appointed, are now in employment as Motor Vehicle Inspectors for over a decade. Now that they have worked in such posts for along time, necessarily they would have acquired there quisite experience. Lack of experience, if any,at the time of recruitment is made good now. Therefore, the new exercise ordered by the High Court will only lead to anomalous results. Since we are disposing of these matters on equitable consideration, the learned counsel for the contesting respondents submitted that their cases for appointment should also be considered. It is not clear whether there is any vacancy for the post of Motor Vehicle Inspectors. If that is so, unless any one or more of the selected candidates are displaced, the cases of the contesting respondents can not be considered. We think that such adjustment is not feasible for practical reasons. We have extended equitable considerations to such selected candidates who have worked in the post for along period, but the contesting respondents do not come in that class. The effect of our conclusion is that appointments made long back pursuant to as election need not be disturbed. Such a view can be derived from several decisions of this Court including the decisions in RamSarup vs. State of Haryana &Ors.
MANU/SC/0357/1978 : (1978)IILLJ409SCDistrict Collector&Chairman, VizianagaramSocial Welfare Residential School Society, Vizianagaram&Anr. vs. M. Tripura Sundari Devi MANU/SC/0478/1990 : (1990)IILLJ153SC ;and H.C.Puttaswamy &Ors. vs. The Hon'ble Chief Justice of Karnataka HighCourt, Bangalore &Ors. MANU/SC/0062/1991 :
AIR1991SC295 . Therefore, we must let the matters lie where they are."
28. In the present case, this Court finds that the petitioner was appointed as a Reader on 11/06/2008 and had been confirmed on the said post on 11/06/2010 and had already put in more than eight years of service on the day when the order holding him not to possess required minimum experience was passed by the respondents on 20/10/2016. Thus, 8 years' experience was (17 of 17) [CW-15332/2016] already gained as a teaching experience apart from the earlier experience which was counted by the Selection Committee.
29. In view of the aforesaid findings arrived at by this Court, the order impugned dated 20/10/2016 is held to be illegal and unjustified and the same is accordingly quashed with directions to the respondents to reinstate the petitioner on the post which he was holding with all consequential benefits and continuity of service and benefits thereto. Taking into consideration the facts, costs of Rs.50,000/- is imposed to be payable by the respondent no.2. The compliance of this order shall be made by the respondents within two months henceforth.
(SANJEEV PRAKASH SHARMA),J Raghu Powered by TCPDF (www.tcpdf.org)