Jammu & Kashmir High Court
Rajan Badyal vs Central University Of Jammu on 7 September, 2022
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No. 1072/2017
CM No. 6460/2021
CM No. 6461/2021
IA No. 01/2017
Pronounced on: 07.09.2022
Rajan Badyal .... Petitioner(s)
Through:- Mr. Rahul Pant, Sr. Advocate
with Mr. Dhruv Pant, Adv.
V/s
Central University of Jammu .....Respondent(s)
Bagla (Rahya Suchani) and
another
Through:- Mr. D. C. Raina, Advocate
General with Mr. Govind
Raina, Advocate
CORAM :HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. Petitioner, while serving as Public Relation Officer in Shri Mata Vaishno Devi University (for short, „SMVDU‟), applied for the post of Public Relation Officer advertised vide Employment Notification No. 9 dated 8th June, 2015 by the Central University, Jammu. The qualification prescribed for the said post as per notification is as under:-
"6. Public Relation Officer (Pay Band Rs.15600-39100+Grade pay Rs.5400) Age: preferably below 35 years Essential Qualification and/or experience:
a. Master‟s Degree in Public relations/Communication and Journalism with at least 55% marks or its equivalent from any recognized Indian University or corresponding Degree from a foreign University.
OR Master‟s Degree in any discipline with at least 55% marks or its equivalent and Post Graduate Diploma in Public Relations/Communication and Journalism.
AND b. Five years of experience in the Editorial Department/ Centre of any established Newspaper, National News Agency, Radio or Television or Film Media."
Desirable:-
Knowledge of two or more Indian language."2 SWP No. 1072/2017
02. In terms of the General Instructions mentioned in the Advertisement Notice, „in-service candidates‟ were required to route their applications through proper channel and there was also a condition prescribed to submit an advance copy of the application form well before the last date to the competent authority. Condition No. 2 of the General Instructions which is relevant reads as under:-
2. Candidates applying for the post of librarian shall necessarily submit copies of five Library research paper published in Journals/books, along with their application.
03. As the petitioner was working as Public Relation Officer in SMVDU, as such, he applied for the aforesaid post through proper channel on 07.07.2015 and also submitted one advance copy complete in all respects to the office of respondent No. 1.
04. The controversy started when the request made by the petitioner to his Employer/SMVDU for forwarding his application form to the respondent was not acceded to as in terms of communication dated 24.07.2015, the petitioner was informed that he had recently been appointed and was still on probation, as such, he was not permitted to apply for the positions outside the University. The petitioner faced with this piquant situation made a representation to respondent No. 1 seeking consideration of his candidature for the post of Public Relation Officer as a direct candidate as he was not in a position to impress upon his employer to forward his application form as an „in-service candidate‟.
The advance application form of the petitioner was accepted and the candidature of the petitioner was put to scrutiny before the Committee 3 SWP No. 1072/2017 constituted i.e., short-listing committee for the purpose of scrutiny/short- listing of forms of all the candidates, who had applied for the post of Public Relation Officer. The committee made observations regarding eligibility of the candidates but the petitioner‟s candidature was cleared, however, subject to production of five years of experience in the editorial department/cadre of any established newspaper, national news agency etc. within a week‟s time. The petitioner, accordingly, submitted his experience as per the observation of the committee within the stipulated time vide his application dated 13.10.2015.
05. The respondents held the candidature of the petitioner eligible for the post of Public Relation Officer and vide communication dated 10.03.2016, he was called for interview for the said post. The Committee while inviting him for interview also directed the petitioner to submit his original documents for verification at the time of interview. Amongst the documents which were required to be produced, it was also directed that those candidates working in the Government Departments were required to submit the „No Objection Certificate‟ at the time of interview, if they had not forwarded their applications through proper channel. The aforesaid Clause in the interview notification dated 10.03.2016 reads as under:-
"5. Those working in the Govt. Department who have not forwarded their applications through proper channel are required to submit the No Objection Certificate (NOC) at the time of interview."
06. The petitioner vide his application dated 29.03.2016 again requested his Employer i.e., Registrar, SMVDU for issuing „No 4 SWP No. 1072/2017 Objection Certificate‟ to him to enable him to appear in the interview scheduled to be held on 30.03.2016.
07. The petitioner approached his employer again for issuance of „No Objection Certificate‟ as respondent No. 1 made the same necessary condition for appearing in the interview. The Registrar SMVDU, however, only issued an experience certificate to him on 29.03.2016. The petitioner was allowed to appear in the interview on 30.03.2016, subject to submission of an undertaking that he would submit the requisite „No Objection Certificate‟ from his Employer within a period of one week, failing which, his candidature for the post of Public Relation Officer would be cancelled. The petitioner, accordingly, submitted the undertaking and appeared in the interview.
08. The issue regarding eligibility of the petitioner for the post of Public Relation Officer was discussed by the respondents in the 11th meeting of the Executive Council held on 15.07.2016, as Agenda Item No. 25 which along with the recommendations was also discussed. The recommendation of the Selection Committee with regard to the post of Public Relation Officer was placed before the Executive Council and while discussing Agenda Item No. 25, the Council, after detailed discussion, resolved that the recommendation of the Selection Committee for the post of Public Relation Officer be not opened and kept in abeyance, and further directed a Committee be constituted to look into the matter and submit its report. Though, while the Committee was still considering the issue regarding eligibility of the petitioner as Public Relation Officer, the „No Objection Certificate‟ was issued by his 5 SWP No. 1072/2017 Employer, the Registrar, SMVDU in favour of the petitioner on 14.02.2017.
09. The petitioner submitted the „No Objection Certificate‟ issued in his favour to respondent No. 1 along with the detailed representation seeking consideration for his selection to the post of Public Relation Officer on 14.03.2017.
10. In the 12th meeting of the Executive Council held on 07.04.2017, the respondents considered the report of the Committee, comprising of two members regarding the eligibility of the petitioner and resolved to accept the report of the Enquiry Committee and resolved to re-advertize the post of Public Relation Officer.
11. The petitioner is aggrieved of the decision of the respondents, declaring him ineligible for the post of Public Relation Officer on account of his having failed to submit „No Objection Certificate‟ within the prescribed period and re-advertising the post of Public Relation Officer (Pay Band Rs. 15600-39100 + Grade pay Rs. 5400) vide Employment Notification No. 20 dated 28.04.2017.
12. The contention of the petitioner is that the impugned Employment Notification dated 28.04.2017 is illegal, arbitrary and is violative of Articles 14 & 16 of the Constitution of India. It is submitted that the requirement of routing the application of „in-service candidates‟ as per Condition No. 2 of General Instructions given in the Advertisement notice was not per se applicable to the petitioner. As per the terms of the Notification dated 10.03.2016, the requirement of producing „No Objection Certificate‟ was only for those candidates who were working in the Government Department. As the petitioner is 6 SWP No. 1072/2017 employed with SMVDU, as such, he was not required to produce „No Objection Certificate‟. The petitioner despite his application, failed to provide the „No Objection Certificate‟ within the prescribed period. The petitioner, in fact, had already moved an application within time for considering his candidature as a direct recruit for the post of Public Relation Officer.
13. The petitioner submits that non-grant of „No Objection Certificate‟ by the respondents affected his fundamental right and deprived him from considering for the post which is arbitrary, unreasonable. The respondents have deliberately not considered him as direct recruit candidate, even though, he had represented for the same, as he could not compel his employer to give him „No Objection Certificate‟. It is not denied by the respondents that the petitioner had not submitted his candidature as „in-service candidate‟ and had moved the application for treating his candidature as that of direct recruitment. The Scrutiny Committee had also held him eligible for the post.
14. The respondents in their objections submitted that the petitioner was serving in Shri Mata Vaishno Devi Shrine Board and applied as an „in-service candidate‟ but his application form was neither forwarded through proper channel, nor „No Objection Certificate‟ was produced by him within the stipulated time or at the time of interview. The respondents, though, allowed the petitioner to appear in the interview process but the same was subject to his furnishing an undertaking that he would submit the requisite „No Objection Certificate‟ from his employer within a week‟s time failing which his candidature should be cancelled.
7 SWP No. 1072/2017
15. The petitioner subsequently failed to submit the „No Objection Certificate‟ within the stipulated time after his interview and, accordingly, the matter was placed before the Executive Council in the 11th meeting. It was resolved to constitute a committee and further resolved that the report of the committee to be put up for consideration by the Executive council. The report of the Committee was put before the Executive Council along with its recommendations in a sealed cover for consideration by the Executive Council. The Executive Council in its 12th meeting held on 07.04.2017 resolved to re-advertise the post of Public Relation Officer. In pursuance to the decision of the Executive Council, the respondents have re-advertised the post of Public Relation Officer vide Notification No. 20 dated 28.04.2017.
16. The petitioner submitted his application in terms of the Employment Notification dated 08.06.2015, which contained a Clause in General Instructions stating that „in-service candidates‟ shall route their applications through proper channel. The candidates were also advised to submit an advance copy of the application form well before the last date. The petitioner had, accordingly, submitted his application in advance also.
17. It was only due to refusal of the employer to issue „No Objection Certificate‟ to the petitioner, that he expressed his inability to produce the same to the respondents. The interview Notification dated 10.03.2016 was specific with regard to only those candidates who were working in the Government Department and had not forwarded their applications through proper channel, were required to submit the „No Objection Certificate‟ at the time of interview. Since, the petitioner was 8 SWP No. 1072/2017 not working with the Government Department and SMVDU is an autonomous body, as such, this clause was therefore not applicable to the petitioner, though, the petitioner made many efforts to obtain the „No Objection Certificate‟ from his employer but his employer refused to provide him the same, as such, the same could not be produced and it was not in his domain.
18. It is urged that there was no delay or any fault of the petitioner but the delay and lapse was on the part of employer who did not issue the NOC even though the petitioner applied for the same within time, the respondents could have considered him as direct candidate as per his request made to them for which there is no bar. The respondents have admitted the representation made by the petitioner in Para-5 of their objections. They, however, opposed the same on the ground that he failed to fulfill the requisite eligibility criteria and not provided the „No Objection Certificate‟ from his employer.
19. The fact that the petitioner applied for the post as „in-service candidate‟ could only for two reasons; one for pay protection and another for eligibility condition regarding the age. Both these conditions do not come in the way of the petitioner for his consideration for direct recruit candidate. It is submitted by the learned counsel for the petitioner that the petitioner was eligible to be considered for the post of Public Relation Officer in terms of the Advertisement Notice No. 09 dated 8th June, 2015.
20. This is also clear from the fact that the Scrutiny/Short-listing Committee constituted for the purpose of scrutiny/short-listing of application forms held the petitioner eligible in all these respects. The 9 SWP No. 1072/2017 only remark for the petitioner‟s candidature was that he was required to produce five years of experience in the Editorial Department/Centre of any established Newspaper, National News Agency, Radio or Television or Film Media within a week‟s time which he produced. There was not even a whisper regarding NOC by the respondents and the undertaking sought from him, at the time of interview, is an afterthought and would not affect his consideration as a direct recruit candidate. Even otherwise, the petitioner cannot be debarred from participation on the basis of non- production of NOC which was not even in his domain and thus stopped him from competing for the post, more so, when the NOC was granted to him before appointment.
21. In "Narender Singh vs. The State of Haryana", 2022 (3) SCC 286, the Hon‟ble Supreme Court in Paras 17, 18 and 19 held as under:
"17. As observed hereinabove, the appellant was to produce an NOC at the time of interview. Therefore, in anticipation that non-receipt of the NOC may come in his way in getting the appointment therefore, the appellant filed the writ petition before the High Court being CWP No.27864 of 2017 on 05.12.2017 for issuance of the direction to the employer to release the NOC. The learned Single Judge passed the interim order in favour of the appellant in the aforesaid CWP No.27864 of 2017 vide order dated 07.12.2017 directing that if he falls within the zone of consideration for being called for an interview for the post in question, shall be provisionally interviewed, regardless of the fact that an NOC has not been issued so far by the Department of Elementary Education.
18. It is not in dispute that pursuant to the interim order dated 07.12.2017, the appellant was interviewed provisionally. However, his result was kept in a sealed cover. Thus, during pendency of the aforesaid writ petition and despite the fact that pursuant to the interim 10 SWP No. 1072/2017 order dated 07.12.2017, the appellant was provisionally interviewed, the Public Service Commission declared the result of final selection in respect of the interviews conducted from 12th to 14th December, 2017 on 15.12.2017 and the actual appointments were made on 12.07.2018. In the meantime, the appellant received the NOC on 06.06.2018 from his employer - District Elementary Education Officer and immediately on receipt of the same, the same was produced by him before the Public Service Commission on 08.06.2018, i.e., even before the actual appointments were made by the Public Service Commission, which were made on 12.07.2018. Thus, from the aforesaid, it can be seen that there was no delay and/or any fault on the part of the appellant.
19. Whatever was the lapse and/or the delay was, it was on the part of the employer of the appellant, who did not issue the NOC though applied on 22.03.2016 and which was issued only on 06.06.2018 and that too after the intervention of the High Court. Even the learned Single Judge also noted that there was a delay and/or lapse on the part of the District Elementary Education Officer, and therefore, even the learned Single Judge also imposed the cost of Rs.50,000/- on the employer of the appellant."
22. The respondents have opposed the eligibility of the petitioner for direct recruit also by stating that he was 40 years old at the time of submission of application form, therefore, did not fulfill the eligibility criteria of age which is 35 years and for this reason also, his candidature for the said post could not be considered. Perusal of the Employment Notice, however, reveals that the age as prescribed under the Employment Notice is „preferably below 35 years‟, thus, there was no specific bar that the minimum age of the candidate was to be 35 years only, in fact, only preference was to be given to those candidates, who were below 35 years. The petitioner‟s eligibility as per the age is also fortified from the fact that in their re-advertisement Notice dated 28th April, 2017, the criteria of age is below 40 years. Thus, the petitioner 11 SWP No. 1072/2017 being eligible in all respects was eligible for his consideration as a direct recruit candidate and was entitled to declaration of his result for the interview held by the respondents.
23. The respondents have rejected the case of the petitioner and have issued a fresh Advertisement Notice, re-advertising the post of Public Relation Officer without considering the fact that it is in the domain of the employer to grant the „No Objection Certificate‟ and, as such, the same was beyond the control of the petitioner. The respondents have also refused to consider that before the issue was finally considered, the petitioner did produce „No Objection Certificate‟ on 14.02.2017, though, the same was within the time specified as per the undertaking given by the petitioner.
24. The contention of learned counsel for the respondents that there can be interference in the decision of the Executive Council to reject the candidature of the petitioner cannot be accepted in view of the fact that the earlier Committee had considered the petitioner eligible and directed him to appear in the interview but it is only due to non- production of „No Objection Certificate‟, which is a procedural requirement that the petitioner was declared ineligible for the said post. This situation, however, would not have arisen if the petitioner‟s candidature was considered as a direct candidate for which he was eligible and for which he had requested. The entire issue has arisen because of the complaint made by someone against the respondents for their arbitrary functioning and allowing the petitioner, who according to him is ineligible to participate in the interview process which has resulted in rejection of petitioner‟s candidature despite being eligible. 12 SWP No. 1072/2017
25. For the aforementioned reasons, this petition is allowed. Consequently, the decision of the Executive Committee declaring the petitioner ineligible to be appointed as Public Relation Officer in Central University, Jammu and re-advertising the post is set aside. The impugned employment Notification No. 20 dated 28.04.2017, advertising the post of Public Relation Officer is quashed. The respondents are directed to proceed with the selection process in terms of Advertisement Notice No. 09 dated 8th June, 2015 and declare the result of interview held and complete the process of selection expeditiously.
(Sindhu Sharma) Judge Jammu 07.09.2022 Michal Sharma Whether the Judgment is speaking : Yes Whether the Judgment is reportable : Yes