Madhya Pradesh High Court
M.P.S.Yadav vs Union Of India on 11 December, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 7483 of 2012
M.P.S.YADAV
Versus
UNION OF INDIA
Appearance:
Shri Manoj Pratap Singh Yadav - Advocate for the petitioner.
Shri Shyam Kishor Singh Jadon - Advocate for the respondent.
Ms Dimpal Vyash - Advocate appeared for respondent/Int.
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Reserved on 19/11/2024
Delivered on 11/12/2024
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ORDER
1. The present petition under Article 226 of the Constitution of India is not directed against any particular order, but has been preferred against the advertisement dated 31.01.2012, whereby applications have been called for appointment on the post of Assistant Proffessors in Indian Institute of Tourism and Travel Managemnt (IITTM).
2. The aforesaid advertisement has been challenged by the petitioner on the ground of change in the qualifications to 2 eliminate the candidature of the petitioner and other similarly situated candidates, though the respondent had offered All India Council of Technical Education (AICTE) approved Post Gradutate Diploma in Management (PGDM) Programme and, therefore, was bound to follow their norms for selection and though it had claimed that it had followed the norms of the University Grants Commission, however, neither the norms as laid down by AICTE were followed nor the norms of UGC which they had claimed to be following, was followed. Further, the changes in the qualifications made by the respondents were also not approved by the concerned authorities. Thus, due to the arbitrary decision of the respondents, the candidature of the petitioner and alike had been frustrated.
3. The short facts of the case are that on 31.01.2012 the respondents issued an advertisement for filling up 19 post of Assistant Proffessors and in the said advertisement essential qualifications mentioned were to be as per the UGC guidelines and as per the UGC regulations on minimum qualifications for teachers in the faculties of Agriculture and Veterinary Science, the norms/regulations of Indian Council of Agricultural Research, for Medicine, Dentistry, Nursing and AYUSH, the norms/regulations of Ministry of Health and Family Welfare, Government of India, for Faculty of Education, the norms/regulations formulated in consultations with National Council of Teacher Education; for Engineering and Technology, Pharmacy and 3 Management/Business Administration, the norms/regulations formulated in consultations with All India Council for Technical Education; and the qualifications in the filed of rehabilitation and special education at Degree, PG Diploma and Masters level, the norms/regulations formulated in consultations with Rehabilitation Council of India, shall apply and as per the UGC regulation 4.4.5, the qualifications for the post of Assistant Proffessors should be (I) First Class masters degree in Business Management/Administration/ in a relevant management related discipline or first class in two years full time PGDM declared equivalent by AIU/accredited by the AICTE/UGC; or first class gradute and professionally qualified Charted Accountant/Cost and Works Accountant/Company Secretary of the concerned statutory bodies.
4. It is also desirable that (a) Teaching, research, industrial and/or professional experience in a reputed organization; (b) Papers presented at Conferences and/or published in refered journals would be in addition and as per the gazzette notification part III Section Part-4 of AICTE dated 05.03.2010, norms for faculty position in Management were "First class or equivalent in Masters Degree in Business Administration or equivalent and 2 years relevant experience was desirable. However, the respondent is a Tourism Education Institute and tourism programmes, in some cases offered in the faculties/departments of social science in some universities and colleges and in those cases UGC 4 recommends certain qualifications (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. However, 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 the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/Institutions and the degrees thereof awarded are MTA, MTM, MTHM etc. However, the Programmes leading to MΤΑ, ΜΤΜ, ΜTHM, etc are not covered by AICTE and the respondent/IITTM is not a university and its programmes are governed solely by AICTE norms. In contrast to the aforesaid, the respondent on 31.01.2012 published the advertisement asking for following qualifications for the post of Assistant Professor: (I) First Class Masters Degree in Business Management / Administration (in Tourism & Travel management) or first class in two year full time PGDM declared equivalent by AIU/ accredited 5 by the AICTE/ UGC (in Tourism and Travel Management)." (II)
(i) Teaching research, industrial and /or professional experience in reputed tourism organization; (ii) papers presented at conferences and/or published in referred journals on tourism as desired qualifications, though the pertinent part of the qualification should have been First Class masters Degree in Business Management/Administration/ in a relevant management related discipline or first class in two years full time PGDM declared equivalent by AIU/accredited by the AICTE/UGC, but it was arbitrarily changed and the qualification as mentioned above were fixed. The respondent being an autonomous institution of Ministry of Tourism, Government of India is required to adopt recruitment rules in line with directions of statutory bodies like UGC and AICTE and though in response to an RTI it was informed that they had followed the UGC norms from the educational qualifications as mentioned in the advertisement, it was clear that there was a deviation from the norms which were prescribed under the UGC guidelines for the post of Assistant Professor in Management and Social Science. The aforesaid changed qualifications as advertised by the respondents were not as per UGC norms and also were not in confirmity with the mandate by the Board of Governors and they were not even sanctioned by the relevant authority i.e. Board of Governors/Institution. Thus, alleging the advertised qualifications to be without santion and arbitrary to the disadvantage of the 6 petitioner and other similarly placed candidates, the present petition has been filed.
5. Petitioner who is present in person had argued that the advertisement issued by respondent no.1 up to the extent of restricting the qualification only up to Tourism and Travel Management is illegal, arbitrary and is liable to be set aside. It was further submitted that the respondents while issuing advertisement has ignored the guidelines issued by the UGC whereas they are bound to follow the UGC guidelines and as per UGC regulations, the educational qualifications for Assistant Professor has been fixed as First Class masters degree in Business Management/Administration/ in a relevant management related discipline or first class in two years full time PGDM declared equivalent by AIU/accredited by the AICTE/UGC and further the institute may demonstrate interest in the candidates with competence in tourism; however, they cannot restrict the candidature of applicants who fulfil the eligibility as per UGC norms, therefore, the advertisement issued the respondents is liable to be set aside.
6. It was further argued that the qualifications as advertised by the respondents are not approved by the necessary authority enshrined in the constitution of the institute as framed by the Board of Governors and, therefore, is liable to be set aside. It was further argued that essential qualifications as mentioned in the advertisement are also not as per the AICTE whose norms must be 7 followed by the respondent No.2 while offering AICTE approved PGDM programmes, therefore, the advertisement is liable to be set aside. On the basis of the aforesaid arguments it was submitted that the advertisement annexure P/1 dated 31.01.2012 be quashed upto the extent that it is not in consonance with the UGC norms for essential qualifications for the post of Assistant Professors.
7. Per contra, counsel for the respondent No.2 had raised a preliminary objection that the petitioner has no locus to maintain the present petition as there was no disclosure by the petitioner as to how he is affected and what are his qualifications and since the petition is absolutely silent in this regard, the petition on the ground of locus alone deserves to be dismissed.
8. It was further argued that the petitioner is challenging the advertisement issued in the year 2012 and since much water has flown thereupon even for academic purpose no relevancy has left in adjudicating the controversy, therefore, on this count also the petition deserves to be dismissed.
9. Learned counsel on merits has further argued that the degree which is essential for the purpose of Assistant Professor so far as present respondent No.2 is concerned, is with regard to subject of tourism and travel management and any degree in any other discipline is irrelevant since those are not the subject which would be or were taught in the said institute, thus the contention of the petition with regard to challenging the adverstisment has no foundation. With regard to the contention of the petitioner that 8 respondent No.2 is a tourism education institute and tourism programme in some cases is offered in the faculty/department of social science in some universities and colleges, thus, could not be fixed as the educational qualifications were students of other fields of management would also be eligible is absolutely irrelevant because the qualification as specified by UGC and adopted by the respondent institute is specific and clear and as such the petitioner could not have a say over the prescription of those qualifications.
10. It was further submitted that rules and regulations which has been followed by respondent No.2 has been duly approved by the Board of Governors and since the UGC guidelines which has been relied upon by the petitioner itself makes a prescription with regard to a candidate must be having first class degree in the business management/administration in relevant management descipline, thus, fixing educational criteria which the petitioner does not fulfill cannot entail the entire advertisement negatory. It was further contended that so far as the contention of the petitioner with regard to advertised qualifications that they are without sanction and arbitrary to the disadvantage of the petitioner as well as other similarly placed candidates is absolutely false as qualifications prescribed by the UGC has been mentioned in the advertisement and as in the advertisement the mention of having first class masters degree in relevant management discipline which the petitioner wants to skip for the 9 purpose of his own advantage, cannot be permitted and since there is no difference between the guidelines as laid down by the UGC and the educational qualifications mentioned in the advertisement, the contentions as raised by the petitioner has no force, thus, it was prayed that the present petition be dismissed.
11. A rejoinder has been filed in the matter and on the basis of the contents of the rejoinder the petitioner submitted that the respondent No.2 had arbitrarily changed the essential qualification for the post of Assistant Professor and the said change was unauthorised without the concurrence of the competent authority and as the Board of Governors is a competent authority to make any changes to the recruitment rules vide para 12.4 (3) and para 23 of the constitution of the institute and as no assessment what so ever of the specialisations required for various posts of Assistant Professor were made and ever placed before the competent authority, i.e. Board of Governors, for its concurrence and no proposal of requirement of change in essential qualifications was placed before the Board of Governors, the changes so made in the advertisement is per se illegal.
12. The petitioner further argued that he is also aggrieved by the fact that respondents have screened and interviewed candidates who were not eligible as per the essential qualifications advertised by the respondent No.2 themselves. Further petitioner has a locus to file the present petition as the alleged unauthorised change in qualification has put him to a 10 disadvantage by denying him concocted eligibility and though the petitioner has pointed out that anomaly and was brought to the notice of the respondents immediately after issuance of advertisement, but was not replied, therefore, the present petition was filed.
13. Petitioner further argued that the UGC guidelines prescribes that a candidate must possess first class degree in business management/administration/ in a relevant management related discipline which has been mis-quoted by the respondents to their advantage and had construed it to be first class masters degree in business management/administration/ in a relevant management descipline, which is not the correct interpretation rather it would be masters degree in business management or masters degree in business administration or masters degree in relevant management related discipline, thus, by mis-interpreting the candidates who were possessing the masters degree in business administration were ousted and only the candidates who have done their masters in tourism and travel were allowed to participate and as per the UGC guidelines the candidates who had completed their masters in tourism administration and masters of tourism management were required to have qualified National Eligibility Test (NET) or must have done PhD.
14. It was further argued by the petitioner that on 19.12.2011 the Ministry of Tourism has informed the respondent No.2/Institute that 19 posts of Assistant Professors have been 11 sanctioned and the said post of Assistant Professors and not Assisstant Professor of any particular specilisation and, thus, mentioning of the qualifications of a particular stream was total variation from the UGC guidelines which were not even approved by the Board of Governors, thus, the essential qualification for the post of Assistant Professor could not have been altered at the whims and fancies of the individual officers of respondent No.2/institute without concurrence of the Board of Governors, thus, the said advertisement deserves to be quashed and so far with the efflux of time no relevancy has been left for adjudicating the matter, it has been argued that this Court vide interim order dated 18.10.2012 had made the said adverstisement subject to final outcome of the present petition, therefore, this argument has no force.
15. Learned counsel for the respondent No.2 in response, on the other hand, while placing reliance in the matter of Jashbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed and Ors. reported in 1976(1) SCC 671, had contended that to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter.
1216. Further placing reliance in the matter of Ghulam Qadir vs Special Tribunal & Ors reported in 2002(1) SCC 33, it was argued that the existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article and it is only when a person approaching the Court can satisfy that the impugned action is likely to adversely affect his rights which is shown to be having source in some statutory provision, the petition filed by such person cannot be entertained and since the petitioner in the entire petition has not shown any cause or any injury to his individual legal rights, this petition is required to be thrown out on the ground of locus.
17. Lastly, while placing reliance in the matter of Surinder Singh vs Union Of India & Ors reported in 2007 (11) SCC 599, it was argued that it is a prerogative and authority of the employer to lay down suitable service conditions to the respective post and in the service jurisprudence the prescription of preferential qualification not only refers to numeric superiority, but is essentially related to better mental capacity, ability and maturity to shoulder the responsibilities, which are entrusted to the candidates after their selection to a particulare post, thus, from the contents of the advertisement, it could be seen that the qualifications are as per the UGC guidelines and being employer the institute can ask for masters degree in management, the Board of Governors has sanctioned in the complete rules and norms, the qualifications 13 which has been asked in the masters in relevant discipline which can be asked for suitability has to be decided by the employer and which is prerogative of the employer, thus the petition on the aforesaid grounds also deserves to be dismissed.
18. At this juncture, the petitioner had referred to one IA No.980/2020, which is an application under Section 195 r/w Section 340 of Cr.P.C., wherein it has been alleged that the affidavits filed in this matter on behalf of respondents are based on false claims and false affidavits and false information in the name of Union of India has been given by the said person. In the said application, it has been averred that one Kanti Prasad Gautam had filed an affidavit in W.P. No.4308/2016 in the capacity of Officer Incharge on behalf of all the respondents and had prayed for disposal of the writ petition and this was done by Mr. Kanti Prasad Gautam without any authority of law and this Court earlier had quashed the said affidavits and documents filed by Mr. Kanti Prasad Gautam in W.P. No.4308/2016 on the ground that he was not authorised to file such affidavit in the Court and was never instructed by the Union of India to do so and this Court had imposed penalty of Rs.10,000/- on Union of India itself. Making allegations against Mr. Kanti Prasad Gautam to be a fraud and to have worked under the one of the directors Mr. Sandeep Kulshrestha the so called Director of IITTM it is stated that he had again preferred a false affidavit without being authorised by Union of India which is to be strictly viewed and appropriate 14 directions be issued in that regard and also the application in support of which Mr. Kanti Prasad Gautam has submitted his affidavit should be quashed.
19. Heard the counsel for the parties and perused the record.
20. So far as the application IA No.980/2020 under Section 195 r/w Section 340 of Cr.P.C is concerned, this Court from the very letter which has been received under the RTI dated 07.11.2019 observes that as per clause 14.5 sub-point 13 of the Constitution of IITTM, the director can redelegate some of the powers to any of his subordinates, with the approval of the Board, thus, powers do exists with the director to delegate certain powers to the employee and whether Mr. Kanti Prasad Gautam was duly appointed employee of respondent No.2 or not, is not the subject matter of the present petition and also from the record it is seen that affidavits of Mr. Kanti Prasad Gautam are filed on behalf of respondent no.2/Institute only, thus, this aspect is not required to be gone into, but as the directors of respondent No.2 has power to delegate some of the powers to any of the subordinates it can not be said that the affidavit which has been filed by Mr. Kanti Prasad Gautam on behalf of respondent No.2 was false and without any authority. Thus, in that context IA No.980/2020 is hereby rejected.
21. Also from the decision rendered in W.P. No.4308/2016 it can not be gathered that Mr. Kanti Prasad Gautam was not having any authority to file an affidavit on behalf of respondent No.2 as in the said petition Mr. Kanti Prasad Gautam had also filed an 15 affidavits on behalf of Union of India for which he was not authorised, thus, the case herein is altogether different.
22. A ground has been raised by the counsel for the respondent no.2 that the petitioner has no locus to maintain the present petition as in the entire petition he has not mentioned as to what personal or individual rights of his got affected by issuance of the advertisement as it is a settled law that infringement of some legal right or prejudice to some legal interest inhering in the person alleging is necessary to give him locus-standi in the matter. The petitioner has even not mentioned his qualifications as to whether he falls under any of the educational qualifications as prescribed by the UGC nor he has placed before this Court any material to show that he was possessing any first class masters degree of management either in the business management or businsees administration. Thus, when the petitioner in nowhere has shown that how he is affected with the adverstisement, in the light of the judgment of the Apex Court in the matter of Jashbhai Motibhai Desai (supra) and Ghulam Qadir (supra), this Court finds that the petition on the ground of locus-standi deserves to be thrown out.
23. Relevant extracts of the aforesaid judgments are reproduced herein below. In the matter of Jashbhai Motibhai Desai (supra) the Apex Court has held as under:
"34. This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a 16 personal or individual right in the subject matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, in fringement of some legal right or prejudice to some legal interest in hearing in the petitioner is necessary to give him a locus standi in the matter (see The State of orissa v. Madan Gopal Rungta; AIR 1952 SC 12; Calcutta Gas Co. vs. The State of West Bengal; AIR 1962 SC 1044; Ram Umeshwari Suthoo v. Member, Board of Revenue, orissa (1967 (1) SCA 413; Gadda Vekateshwara Rao vs. Government of Andhra Pradesh; AIR 1976 SC 828; State of orissa v. Rajasaheb Chandanmall (1973 (3) SCC 739; Dr. Satyanarayana Sinha v. S. Lal & Co.(1973 (2) SCC 696)]"
In the matter of Ghulam Qadir (supra) this Court has held as under:
"38. There is no dispute regarding the legal proposition that the rights under Article 226of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid Article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone 17 a sea-change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dis-lodging the claim of a litigant merely on hyper-technical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his having not the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi."
24. So far as the mentioning of the qualifications in the adverstisement is concerned, the Apex Court in the matter of Surinder Singh (supra) has held that fixing of qualification is sole prerogative of an employer. It is the prerogative and authority of an employer to lay down suitable service conditions to the respective posts and in service jurisprudence the prescription of preferential qualification not only refers to numeric superiority, but is essentially related to better mental capacity, ability and maturity to shoulder the responsibilities, which are entrusted to the candidates after their selection to a particular post. The basic object of prescribing a minimum qualification is to put a cut off lever for a particular job in accordance with the minimum competency required for the performance of that job and the object of prescribing the preferential qualificationis to select the 18 best amongst the better candidates who possesss more competence than the others and mentioning of the preferential qualifications can be considered to be more effective and efficient and also it can be clear assumption that a candidate possessing the same is best suited for a post in question.
25. The aforesaid analogy has also been laid down in the matter of M.P. Bijli Meter Readers Karmchari Sangh and Ors. vs. State of Advisory Contract Labour Board and Ors reported in 2016 (3) MPLJ 426.
26. Relevant extract of the judgment of the Apex Court referred in Surinder Singh (supra) is quoted herein below:
"These Guidelines/Norms/Instructions clearly stipulate that if the candidates, who have passed Matriculation examination, are available for selection to the posts of EDDA, the selection should be made by the Selection Committee on the basis of the marks obtained by the candidates in preferential qualification (i.e. Matriculation) and in the absence of Matriculate candidates, the selection has to be made on the basis of essential qualification, viz. 8th standard. It appears that the CAT as well as the High Court, both have lost sight of the object and 19 import of the Guidelines/Norms/Instructions dated 21.07.1998 laid down by a Competent Authority. The CAT is not competent to lay down criteria for the selection and appointment to the post of EDDA. It is the prerogative and authority of the employer to lay down suitable service conditions to the respective posts. In our view, in service jurisprudence the prescription of preferential qualification not only refers to numeric superiority but is essentially related to better mental capacity, ability and maturity to shoulder the responsibilities, which are entrusted to the candidates after their selection to a particular post. All the more, it is important for efficient and effective administration.
The basic object of prescribing a minimum qualification is to put a cut off level for a particular job in accordance with the minimum competency required for the performance of that job. The object of prescribing preferential qualification is to select the best amongst the better 20 candidates who possess more competence than the others. Sub-clause (iv) of Clause 2 puts a limit with respect to preferential qualification by way of a clear stipulation that no preference should be given to the qualification above Matriculation. Hence, the preferential qualification was considered to be more effective and efficient and also it was a clear assumption that a candidate possessing the same is best suited for the post in question."
27. Thus, on the aforesaid ground this Court finds that there is no sum and substance in the present petition, accordingly it is hereby dismissed.
(Milind Ramesh Phadke)
Judge
chandni/ 11/12/2024
CHANDNI
NARWARIYA
2024.12.12
16:50:58
+05'30'