Gujarat High Court
Shah vs Principal on 29 September, 2011
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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SCA/1843/2011 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1843 of 2011
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SHAH
JYOTI SURESHKUMAR - Petitioner(s)
Versus
PRINCIPAL
& 4 - Respondent(s)
=========================================================
Appearance :
MR
DJ BHATT for
Petitioner(s) : 1,
MR DC DAVE for Respondent(s) : 1, 3,
NOTICE
SERVED for Respondent(s) : 2,
GOVERNMENT PLEADER for Respondent(s)
: 4 - 5.
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 29/09/2011
ORAL
ORDER
Heard learned Advocates for the parties.
This petition under Article 226 of the Constitution of India is filed by the petitioner with a prayer to quash and set aside the order dated 31.01.2011 passed by the Joint Director of Education (College), State of Gujarat and it is further prayed that respondent be directed to appoint the petitioner on the post of Assistant Lecturer (Accounts / Commerce) with respondent No.3 - Institute and meanwhile, operation of the impugned order be stayed.
Short facts of the petition are as under :-
That the petitioner possesses qualification of M.Com, M.Ed., M.Phil and according to her, she is fully qualified for the post advertised by the respondent on 29.12.2009 in a daily vernacular inviting applications from qualified female candidates. For the post in question, No Objection Certificate (NOC) was granted with a condition that if the candidate lacks in the qualification namely passing of NET / SLET examination and further that the candidate who has acquired his/her Doctorate after 31.12.2002, subject to such candidate passing the above examination in 5 years after taking into consideration performance of such candidate during the period of 5 years, a candidate would be placed in regular payscale of Rs.8000 - 13500. While granting the above permission on 14.10.2009, Office of the Commissioner (Higher Education) has also considered various Government Resolutions dated 29.04.1999 and 29.04.2000 alongwith earlier G.R. dated 14.03.1989 and 23.11.1976. Accordingly, selection procedure was undertaken by the respondent No.3 in which a Committee for selection was constituted consisting of eminent personalities and in the interview process, various candidates were invited and the petitioner was placed in the waiting list. Since the candidate who was selected on merit had expressed her unwillingness to join, the petitioner on the ground of the next best candidate available for the post was found eligible. Meanwhile by an order dated 31.01.2011, the authority cancelled the earlier NOC dated 14.10.2009 on the ground that as per the revised eligibility norms as per G.R. dated 16.06.2008, the No Objection Certificate given earlier was based on the eligibility norms inadvertently quoted in the body of the Certificate minimum educational qualification as was prescribed in earlier G.R. dated 29.04.1999 and 29.04.2000 and infact, as per norms prescribed by UGC in the year 1999 and 2000, a candidate should have passed the above Graduation degree with M.Phil / Ph.D. / NET / SLET.
The above order is the subject matter of challenge in this Writ Petition under Article 226 of the Constitution of India.
Mr. D.J. Bhatt, learned Advocate for the petitioner would contend that the petitioner has outstanding merit and has qualifications of M.Com, M.Ed. and M.Phil and was awarded gold medals. The post of lecturer advertised was reserved for a female and criteria was fixed and while inviting applications, a relaxation was given for passing NET / SLET within five years from the date of appointment and in the above circumstances, subsequent cancellation of NOC by the impugned order has resulted in to undue hardship to the petitioner who had resigned from the earlier service as a lecturer drawing a salary of Rs.19,260/= in August 2010. It is next contended that a candidate who was invited by the Selection Committee and placed on the top of the merit list with rank No.1 had expressed her unwillingness to be appointed and therefore, the petitioner having next best merit was eligible and ought to have been offered the job. According to learned Advocate for the petitioner, if there is a change of criteria later on and grant of earlier NOC is cancelled on the above reasons, the petitioner cannot be deprived of her right to be considered for the post of lecturer. That the selection of the petitioner for the post of lecturer will be governed by the existing criteria when the selection was undertaken and impugned order cancelling the earlier NOC is unreasonable, arbitrary and malafide exercise on part of the authority and it is also in violation of rules of natural justice and Articles 14 and 16 of the Constitution of India and therefore, relief as prayed for in this petition be granted.
Mr. Nirag Pathak learned Assistant Government Pleader for the respondent
- Commissioner of Higher Education relied on the affidavit-in-reply filed by respondent No.5 and submitted that by way of Government Resolution dated 16.06.2008 which was prevalent at the time of grant of earlier NOC on 14.10.2009, the University Grants Commission (UGC) had prescribed certain qualifications for being appointed to the post of Assistant Supervisor, which included good academic record with atleast 55% marks in Masters Degree and passing of NET conducted by UGC, CSIR or similar post created by UGC. Even though, a candidate possessing Ph.D. Degree in accordance with UGC, who was exempted from the requirement of minimum eligibility condition of NET / SLET, conditions were prescribed for those Ph.D.'s who have acquired such degree after 2002. According to learned Assistant Government Pleader, when it was noticed by the authority about misconduct committed earlier while granting NOC on 14.10.2009 in which requisite revised eligibility norms prevailing then were taken into consideration in proper perspective and decision to cancel the NOC cannot be said in any manner unreasonable and arbitrary or in any manner in breach of principles of natural justice.
It is further submitted by learned Assistant Government Pleader that the petitioner was infact not qualified and was in the waiting list and otherwise could not have claimed any right over the post and therefore,the petition is misconceived and deserves to be rejected.
Mr. D.C. Dave, learned Advocate for the respondent No.3 has also relied on the affidavit filed by the Principal of A.G. Teacher's College and submitted that the decision of the authority not to appoint the petitioner cannot be termed either as arbitrary or unreasonable or illegal inasmuch as even after constitution of seven members Selection Committee which also consisted of a representative of the Government / two representatives of the Vice Chancellor of Gujarat University and two experts in the concerned subject and when the interview were over, in the list of eligible candidates, three candidates were found eligible and considered suitable for the post; the name of the petitioner was at Serial No.2 in the overall merit of the candidates as above, since the candidate at Serial No.1 had expressed her unwillingness to accept the job, the petitioner was kept in waiting list having good academic record; at the same time, the petitioner had no qualifications as per norms prescribed by UGC and respondent College is a grant-in-aid institution, which is governed by administrative instructions and resolutions and rules framed by the Government - State of Gujarat and UGC from time to time. The decision of the authority cannot said to be illegal and the petition deserves to be rejected.
Having heard learned Advocates for the parties, on perusal of the record and including the impugned order passed by the authorities, I am unable to accept any of the submissions of the learned Advocate for the petitioner inasmuch as a candidate though selected has no indefeasible right to seek appointment and particularly in the facts of the case, the petitioner was listed at Serial No.2 in the merit list of successful candidates in the interview and only when the candidate at Serial No.1 in the list expressed her unwillingness the petitioner was considered to be eligible for the post. Besides, the norms of UGC prescribed for promotion to the post of Assistant Professor reads as under :-
"4.4.1.
Arts, Humanities, Sciences, Social Sciences, Commerce, Education, Languages, Law, Journalism and Mass Communication.
I. Good academic record as defined by the concerned university with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master's Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign university.
II.
Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET / SET.
III.
Notwithstanding anything contained in sub-clauses (i) and (ii) to this Clause 4.4.1, candidates, who are, or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009, shall be exempted from the requirement of he minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions.
iv.
NET/SLET/SET shall also not be required for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted."
Even if Government Resolution dated 16.06.2008 is perused, it is clear that the above resolution also prescribed minimum qualifications which is in consonance with the norms of UGC. In the above circumstances, the decision taken by the respondent authority to cancel earlier NOC cannot be said to be illegal. As a matter of consequence of the above decision, if the appointment is not conferred by the respondent management to the petitioner though found second best eligible candidate, but not holding requisite qualifications as per UGC norms, it cannot said to be in any manner unreasonable or arbitrary. It is trite that no opportunity of hearing in compliance with the principles of natural justice is to be given to a candidate in whose favour no legal right accrues and selection of such a candidate has no indefeasible right to be considered for appointment and denial of such an appointment is not to be subjected to writ jurisdiction under Article 226 of the Constitution of India, unless such denial is expressly illegal or malafide. That overall examination of facts and circumstances in this petition nowhere reveal any illegality in exercise of powers for any extraneous reasons or considerations or malafides and on the contrary, the higher authority of the department has ensured that a candidate who lacks eligibility is not offered the job by an educational institution, which is entitled to receive grant from the State Government.
In absence of any valid or justifiable ground, I am of the view that the petition lacks merit and accordingly, stands dismissed with no order as to costs. Notice discharged.
Sd/-
(Anant S. Dave, J.) Caroline Top