Allahabad High Court
Dr. Geetam Singh Tomar vs State Of U.P. Thru Prin.Secy. Technical ... on 5 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 484
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 23 Case :- SERVICE SINGLE No. - 4841 of 2020 Petitioner :- Dr. Geetam Singh Tomar Respondent :- State Of U.P. Thru Prin.Secy. Technical Edu. Lucknow Counsel for Petitioner :- Sanjay Misra,Smt. Anju Raghavanshi Counsel for Respondent :- C.S.C. Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Sanjay Misra, learned counsel for the petitioner and Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents.
The case set-forth by learned counsel for the petitioner is that the advertisement to fill-up the post of Director, Rajkeeya Engineering College in the pay band of Rs.37400-67000 with grade pay Rs.10000/- (Level-14) has been advertised indicating the qualifications, which are as under:-
"QUALIFICATIONS:
B. Tech/ B.E. and M.Tech/ M.E., alongwith Ph.D. or equivalent in appropriate Discipline. Post Ph.D. publications and guiding Ph.D. students is highly desirable.
EXPERIENCE:
Minimum of 10 years experience in Teaching/ Research/Industry out of which at least 03 years shall be at the level of Professor or minimum of 13 years experience in Teaching and/ or Research and/ or Industry. In case of research experience, good academic record and books/ research paper publications/ IPR/ Patent record shall be required as deemed fit by the expert members of the Selection Committee. If the experience in Industry is considered, the same shall be at managerial level equivalent to Professor level with active participation record in devising/ designing, developing, planning, executing, analyzing, quality control, innovating, training, technical books/ research paper publication/ IPR/ patents, etc, as deemed fit by the expert members of the Selection Committee.
Flair for Management and leadership is essential."
Per Mr. Sanjay Misra, the exercise regarding selection in question has been completed and only appointment letters are to be issued.
Sri Misra, learned counsel for the petitioner has further submitted that the petitioner is possessing such qualification but the authority competent has decided to initiate the fresh process for filling up the post in question for three districts, namely, Mainpuri, Sonbhadra and Kannauj and the petitioner has applied for such post at Kannauj. Sri Misra has further submitted that all the selection process has already been completed but before issuing the appointment letter such decision to initiate fresh process for filling up the post has been taken without assigning any rhyme or reason.
This Court on the first date of admission dated 20.02.2020 has passed the following order:-
"Heard Shri Sanjay Misra, learned counsel for the petitioner and Dr. Uday Veer Singh, learned Addl. C.S.C. for the State-respondents.
The case set forth by the learned counsel for the petitioner is that the advertisement for filling up the post of Director Rajkiya Engineering Colleges for three districts namely, Mainpuri, Sonbhadra and Kannauj has been issued, but all of a sudden, without indicating any reason the opposite party no.1 has issued a letter on 12.02.2020 on website that the Authority has decided to initiate fresh process for filling up those vacancies.
Since it is not clear as to why fresh process shall be initiated and as to what happened about the process which has already been initiated, therefore instructions would be required.
List/put up on 27.02.2020 as fresh in the additional cause list to enable the learned Addl. C.S.C. to seek complete instructions in the matter.
Any fresh development takes place in the meantime shall be subject to the order of this Court."
In compliance of the aforesaid order, learned Additional Chief Standing Counsel has produced the instructions along with the relevant correspondences and the letters, which are taken on record.
As per the aforesaid instructions, the advertisement is itself providing that the qualification and experience for the post shall be as per A.I.C.T.E. regulations notified on 05.03.2010 (as amended from time to time by A.I.C.T.E.) and the qualification has been amended in the month of July, 2019, therefore, the qualification, as amended, should have been prescribed.
Annexure No.10 of the writ petition is the notification dated 01.03.2019 of All India Council for Technical Education, whereby the Regulation 2019 has been promulgated in the name of "AICTE REGULATIONS ON PAY SCALES, SERVICE CONDITIONS AND MINIMUM QUALIFICATIONS FOR THE APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF SUCH AS LIBRARY, PHYSICAL EDUCATION AND TRAINING & PLACEMENT PERSONNEL IN TECHNICAL INSTITUTIONS AND MEASURES FOR THE MAINTENANCE OF STANDARDS IN TECHNICAL EDUCATION- (DEGREE) REGULATION, 2019". The Regulation 7.5 of the Regulations, 2019 prescribes qualification, which reads as under:-
"7.5 Incumbent faculty Members with previous qualifications Existing incumbents recruited as a Faculty with the basic minimum qualifications such as M.Sc. (Mathematics), M.Sc. (Biotechnology), M.Sc. (Electronics), M.Sc. (Computer Science & allied subjects), M.Sc. (Physics), M.Sc. (Chemistry), MCA, PGDM, AMIE/ M. Com. and any other similar qualifications which were considered eligible at the time of recruitment or taken admission in such courses before publication of the AICTE Gazette dated 13th March 2010 are to be considered as eligible for promotion as well as direct recruitment in the same or other institutions, subject to fulfillment of other eligibility criteria and higher qualifications as prescribed, if any, for various teaching posts."
Learned Additional Chief Standing Counsel has submitted that the qualifications indicated vide Regulation 7.5 of the Regulations, 2019 are different from the qualification so indicated in the advertisement, therefore, the decision has been taken to initiate fresh process for filling up the posts in question by issuing proper advertisement indicating the qualifications as per the Regulations, 2019 and such selection shall be finalized with expedition.
However, Sri Sanjay Misra has drawn attention of this Court towards the curriculum vitae (CV) of the petitioner, which is enclosed as Annexure No.11 to the writ petition by submitting that the petitioner is most qualified person. After perusing the said CV this Court has no hesitation to say that the petitioner is highly qualified to be selected for the post in question. Even if the fresh advertisement is issued in terms of the Regulation 7.5 of the Regulations, 2019 even then the petitioner would be one of the best candidates but the fact remains that the advertisement in question has not been issued in terms of the Regulation 7.5 of the Regulations, 2019, therefore, it appears that the decision of the Competent Authority to initiate fresh process of selection in terms of Regulations, 2019 would not suffer from perversity or illegality inasmuch as the law is trite that the qualification, so prescribed under the rules or regulations, should be indicated categorically in the advertisement and selection in question should be conducted accordingly.
After perusing the qualification so prescribed under the Regulation 7.5 of the Regulations, 2019, it appears that the zone of consideration has been expanded by inviting the candidates who are having M.Sc. degree in various disciplines. It is needless to say that the best candidate would be selected for the post in question.
The Constitution Bench of Hon'ble Supreme Court in re: Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47 has held that even if a number of vacancies are notified for appointment and adequate candidates are found fit, the candidate included in merit list has no indefeasible right to appointment even if a vacancy exists. The relevant paras-7, 9, 10 and 11 are being reproduced here-in-below:-
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha andothers, [1974] 1 SCR 165; Miss Neelam Shangla v. State of Haryana and others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899.
9. Mr. Goswami appearing in support of the appeal has contended that in view of the relevant statutory rules, the authorities were under a duty to continue with the process of filling up all the vacancies until none remained vacant. Reference was made to r. 4 of the Indian Police Service (Cadre) Rules, 1954, rr. 3,4,6 and 7 of the Indian Police Service (Recruitment) Rules, 1954 and rr., 2(1)(a), 2(1)(c), 8 and 13 of the Indian Police Service (Appointment by competitive Examination) Regulations, 1965. We do not think any of these rules comes to the aid of the appellant. Rule 3 of the Cadre Rules directs constitution of separate cadres for States or group of States, and r. 4 empowers the Central Government to determine the strength in consultation with the State Governments. The strength has to be re-examined at intervals of 3 years. Rule 3 of Recruitment Rules deals with the constitution of the Service, and r. 4 the method of recruitment. Rules 6 and 7 give further details in this regard. The learned counsel could not point out any provision indicating that all the notified vacancies have to be filled up. Similar is the position with respect to the Competitive Examination Regulations. Regulation 2(1)(a) defines available vacancies as vacancies determined by the Central Government to be filled on the results of the examination, described in Regulation 2(1)(a). Regulation 8 prescribes that the candidates would be considered for appointment to the available vacancies subject to provisions 9 to 12 and Regulation 13 clarifies the position that a candidate does not get any right to appointment by mere inclusion of his name in the list. The final selection is subject to satisfactory report on the character, antecedent and suitability of the candidates. We, therefore, reject that the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules.
10. The main contention on behalf of the appellant has been, however, that the authorities in keeping the vacancies arising later unfilled, acted arbitrarily. Mr. Goswami referred to several documents annexed to the special leave petition and affidavits filed on behalf of the parties and contended that although appointments of many candidates in the other services were made in the later vacancies, the vacancy in the Indian Police Service which subsequently became available to the appellant was refused without any just cause, resulting in illegal discrimination. This was emphatically denied on behalf of the respondent. Since the matter did not appear to be free from ambiguity on the basis of the affidavits before us, we decided to examine the factual aspects more thoroughly by examining the other available materials on the records of the Union of India, and accordingly the learned counsel for the respondent got the relevant departmental files called. Two further affidavits were also filed along with photostat copies of a large number of documents, which we examined at some length with the aid of the learned advocates for both sides. From the materials produced before us it is fully established that there has not been any arbitrariness whatsover on the part of the respondent in filling up the vacancies in question or the other vacancies referred to by the learned counsel for the appellant. The process of final selection had to be closed at some stage as was actually done. A decision in this regard was accordingly taken and the process for further allotment to any vacancy arising later was closed. Mr. Goswami relied upon certain appointments actually made subsequent to this stage and urged that by those dates the further vacancies in the Indian Police Service had arisen to which the appellant and the other successful candidates should have been adjusted. We do not find any merit in this contention. It is not material if in pursuance of a decision already taken before closing the process of final selection, the formal appointments were concluded later. What is relevant is to see as to when the process of final selection was closed. Mere completing the formalities cannot be of any help to the appellant. We do not consider it necessary to mention all the details in this connection available from the large number of documents which we closely examined during the hearing at considerable length and do not have any hesitation in rejecting the argument of the learned counsel in this regard based on the factual aspect.
11. So far the decision to adopt a different policy with respect to filling up of the reserved vacancies is concerned the same is justified on account of the special circumstances mentioned in the respondent's affidavits. The decision to depart from the confirmed policy was taken after a consideration by the authorities of the position in regard to unavailability of qualified candidates from year to year adversely affecting the desired strength of the reserved candidates in the services and cannot be condemned on the grounds of arbitrariness and illegal discrimination."
Since the advertisement in question was issued in the month of July, 2019 and the selection has yet not been concluded for the reasons indicated above, therefore, it is expected that the authority competent shall initiate fresh process of selection in terms of letter dated 12.02.2020 (Annexure No.1 to the writ petition) with promptness and the candidature of the petitioner along with the other eligible persons shall be considered as per the policy and norms.
In view of the above, I do not find any infirmity or illegality in the impugned order dated 12.02.2020, passed by the opposite party, which is contained as Annexure No.1 to the writ petition. Accordingly, the writ petition lacks merit, deserves to be dismissed.
Therefore, the writ petition is dismissed.
No order as to costs.
Order Date :- 5.3.2020 Suresh/ [Rajesh Singh Chauhan,J.]