Patna High Court - Orders
Dr.Gauri Shankar Chaudhary & Ors vs The Union Of India & Ors on 7 July, 2014
Author: Chakradhari Sharan Singh
Bench: Sharan Singh, Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4275 of 2011
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1. Dr. Gauri Shankar Chaudhary Son Ofl Ate Tej Narayan Chaudhary
Resident Of Village Bikupatti, P.O.-Sajhuar, P.S. Bahera, District-
Darbhanga
2. Dr. Navkrishna Mishra Son Of Sri Mukund Mishra Resident Of Village
Kishoripur (Sajhuar), P.O.-Baigani, P.S.-Bahera, District-Darbhanga
3. Dr. Raman Kumar Son Of Sri Krishna Nand Jha Resident Of Village +
P.O.-Baigani, P.S.-Bahera, District-Darbhanga
4. Dr. Govind Nath Chaudhary Son Of Late Kari Chaudhary Resident Of
Village + P.O.-Sahasram, P.S.-Biraul, District-Darbhanga
.... .... Petitioner/s
Versus
1. The Union Of India Through The Secretary Department Of Higher
Education, (Govt. Of India), New Delhi
2. The Rashtriya Sanskrit Sansthan Through The Vice Chancellor, 56-57,
Institutional Area, Janakpuri, New Delhi-110058
3. The Dy. Registrar (Finance) Rashtriya Sanskrit Sansthan, 56-57,
Institutional Area, Janakpuri, New Delhi-110058
4. The Secretary, Department Of Higher Education (Ministry Of Human
Resource Developmet), Govt. Of India, New Delhi
5. The Under Secretary, Department Of Higher Education (Ministry Of
Human Resource Development), Govt. Of India, New Delhi
6. The Chairman Managing Committee, Sri Ram Sunder Sanskrit Vishwa
Vidya Pratisthan, Recognized As Adarshsanaskrit Mahavidyalaya,
Laxminath Nagar, Ramauli-Belon, District-Datrbhanga
7. The Principal-Cum-Secretary, Adarsh Sanskrit Mahavidyalaya (Sri Ram
Sunder Sanskrit Vishwa Vidya Pratisthan), Laxmi Nath Nagar, Ramauli-
Belon, District-Darbhanga
8. The Managing Committee, Sri Ram Sunder Sanskrit Vishwa Vidya
Pratisthan Society Through Its Secretary, Laxmi Nath Nagar, Ramauli-
Belon, District-Darbhanga
9. The Managing Committee Of Adarsh Sanskrit Mahavidyalaya (Sri Ram
Sunder Sanskrit Vishwa Vidya Pratisthan) Through Its Secretary, Laxmi
Nath Nagar, Ramauli-Belon, District-Darbhanga
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Vishwanath Pd. Sinha,
Senior Advocate With Mr.
Prabhas Ranjan Thakur
For the Respondent Nos.1 to 7 & 9 : Mr. Arun Kumar Arun
For Pvt. Respondent No.10 : Mr. Abhinav Srivastava &
Mr. Shankar Kumar
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
CAV ORDER
2
11 07-07-20141. Petitioners have filed the present writ application seeking quashing of the advertisement published in the daily Newspaper "Aaj" dated 13.2.2011 issued by Sri Ram Sundar Sanskrit Vishwa Vidya Pratisthan ( hereinafter referred to as the „Pratisthan‟), Laxminath Nagar, Ramauli Belon, District Darbhanga, inviting applications for appointment to the post of Lecturers in various subjects. The said Pratisthan is said to be recognized as "Adarsh Sanskrit Mahavidyalaya" under the scheme for financial assistance to institutions recognized as "Adarsh Sanskrit Mahavidyalaya"/"Sodh Sansthan" implemented by the Rashtriya Sanskrit Sansthan (hereinafter referred to as the „Sansthan‟) under the Ministry of Human Resource Development, Government of India. The challenge to the advertisement is mainly on two grounds; Firstly, it has been pleaded and contended in course of argument that the petitioners were working as Lecturers against the posts which have been advertised. Secondly, it has been contended that at least three of the posts of Lecturers i.e. Lecturer in Sanskrit ( Sahitya), Hindi and English has shown to have been reserved for different reserved category candidates. According to the petitioners, each of these 3 posts being singular, they could not have been reserved as that will amount to 100% reservation, which is not permissible. 3
2. Before I deal with the two points as noted above, the facts of the case are required to be looked into briefly. As per the petitioners‟ case, petitioner no.1 was appointed in the Pratisthan as Lecturer in Jyotish Falit on 2.1.1993. The Pratisthan was established in the year 1990 for imparting Sanskrit education along with modern subjects such as Hindi, English, Sociology, Mathematics and Science. It got affiliated with Rashtriya Sanskrit Sansthan, New Delhi in the year 1994-1995. The petitioner no.1 is said to have been appointed as permanent Lecturer in the said subject with effect from 18.12.1995 by an order dated 21.12.1995. He had the qualification of Acharya ( Falit Jyotish) and while he was working as Lecturer he submitted his Ph.D. thesis in the year 2003. Petitioner no.2 on the other hand, was appointed as Lecturer of Vyakaran on 1.3.1997 in the Pratisthan and since then he had been working as Lecturer in the Pratisthan. He is said to have cleared Pre-registration test for doing Ph.D. in the year 2006. Petitioner no.3 on the other hand, passed the Master of Arts examination in Hindi in the year 1993 and was appointed as Lecturer in Hindi on 11.7.2005. He is said to have qualified for doing Ph.D. after clearing Pre-registration test and he submitted his synopsis of Ph.D thesis on 26.5.2008. Petitioner no.4 claims to have qualification of Acharya " Navya Vyakaran". It is also their 4 case that pursuant to an earlier advertisement issued by the Pratisthan on 17.11.2008 for appointment as Lecturers they had applied. Though it was mentioned in the said advertisement that NET/Ph.D. shall be the minimum qualification for appointment, it was also mentioned in the advertisement that the persons having working experience would be given preference. Pursuant to the said advertisement the petitioners applied. On the basis of selection conducted by a duly constituted Selection Committee, the petitioner no.1 was appointed with retrospective effect from 2.1.1993 i.e. from the date of his initial appointment, by letter dated 7.12.2008. It was indicated in the said appointment letter that the appointment would be subject to acquisition and submission of Ph.D. decree within two years. Petitioner Nos. 2, 3 and 4 were also appointed with similar condition in different subjects of Sanskrit. Petitioner no.3 is said to have been appointed as Lecturer in Hindi.
3. In course of time the Government of India started scheme for financial assistance to those institutions recognized as Adarsh Sanskrit Mahavidyalaya/Sodh Sansthan with an objective to support and promote traditional Sanskrit learning and research. It is the petitioners‟ plea that once Sanskrit Mahavidyalaya was recognized as Adarsh Sanskrit Mahavidyalaya the Lecturers of the 5 College would be entitled for U.G.C. pay scale and qualifications prescribed by the U.G.C. would be applicable to the teaching staffs. As per the procedure prescribed, in the year 2009, the said Pratisthan came to be recognized as "Adarsh Sanskrit Mahavidyalaya" under the scheme of financial assistance to the Sanskrit institutions and approval for creation of the teaching and non-teaching posts in the Pratisthan was also accorded. Subsequently, the Vice Chancellor of Rashtriya Sanskrit Sansthan vide his letter dated 2.3.2009 communicated approval for two posts of Lecturers Sahitya, two posts of Lecturers Vyakaran, two posts of Lecturers Jyotish, one post of Lecturer Ved, one post of Lecturer Hindi and one post of Lecturer English. In the said letter Dr. Kameshwar Chaudhary was recognized as Principal of the College and Dr. Dilip Kumar Chaudhary as Lecturer in Sociology.
4. It is the further case of the petitioners that petitioner no.1 got his Ph.D. degree in December, 2009 and petitioner no.4 in October, 2009. It is further the petitioners‟ case that though petitioner no.4 got his Ph.D. degree within stipulated time, his name was not mentioned in the letter of recognition of teachers working in the College. It has also been stated that petitioner no.3 submitted his thesis to the University on 7.6.2010 and he was 6 awarded Ph.D. degree in the year 2011. Petitioner no.3 is said to have submitted a photo copy of the thesis on 6.12.2010.
5. Pleadings have been made in detail in the writ application raising grievance that since petitioners were working in the Pratisthan as Lecturers on the basis of their selection and appointment pursuant to due advertisement, their services were arbitrarily not recognized by the Sansthan and the advertisement inviting applications for the posts against which they were working is bad for that reason.
6. I will consider the facts relating to second aspect of the case as regards reservation against solitary post later.
7. A counter affidavit has been filed on behalf of the respondents- Rasthriya Sanskrit Sansthan as well as Principal- cum-Secretary, Adarsh Sanskrit Mahavidyalaya ( Sri Ram Sundar Sanskrit Vishwa Vidya Pratisthan) Laxmi Nath Nagar, Ramauli, Belon, District- Darbhanga. Denying the averments in the writ application that the petitioners were appointed for imparting teaching at higher level, it has been stated in the counter affidavit that up to year 1993-95 the Pratisthan was imparting teaching for standard VIth ( Prathama) to standard VIIIth only and, therefore, appointment of the petitioners on 2.1.1993 in the Pratisthan cannot be termed as Lecturers. It has further been stated in the counter 7 affidavit that in the year 1995 the Pratisthan was imparting education up to Prathama ( Class VIth to VIIIth standard) and was recognized upto that standard only and, therefore, there was no question of their appointment as permanent Lecturers in the year 1995. In paragraph 17 of the counter affidavit it has been stated that the Pratisthan was upgraded upto Purwa Madhyama level (Matriculation) in the year 1997 and therefore, there was no question of appointment of petitioner no.2 as Lecturer in the year 1997. It has further been asserted in the counter affidavit that minimum qualification for appointment on the post of lecturer is 55% in the concerned subject with NET/Ph.D. degree but none of the petitioners at the time of publication of the said advertisement on 17.11.2008 possessed Ph.D. degree or NET clearance.
8. A rejoinder to the counter affidavit has been filed on behalf of the petitioners in which they have not denied the specific averment made in the counter affidavit that the Pratisthan was recognized for imparting education upto Prathma till 1995 and upto Madhyama ( matriculation) in 1997. They have, however, asserted that they were duly appointed as Lecturers. There is also no dispute about the fact that the petitioners could not have been appointed on the basis of the advertisement dated 17.11.2008. This is an admitted position that they did not have the minimum 8 qualification for appointment as Lecturer in terms of the said advertisement. In any event, this is also an admitted fact that none of the petitioners had qualification to be appointed as Lecturers on the date of the advertisement. The claim of the petitioners therefore that the posts should not have been advertised through the impugned advertisement cannot be accepted and the submission is rejected to that extent.
9. Coming to the second issue; the petitioners have also challenged the advertisement on the ground that solitary post of Lecturer in the subject of Hindi and English could not have been reserved. None of the petitioners was applicant for the post of Lecturers in English and therefore the petitioners do not have locus standi to question reservation for the post of Lecturer (English). The plea of the petitioners is thus confined to the solitary post of Lecturer in Hindi which was reserved for Scheduled castes as per the advertisement.
10. This is to be noted that during the pendency of the writ application, one dr. Sangeeta Kumari came to be appointed as Lecturer who had been impleaded as party respondent no.10 by an order dated 27.9.2012 of this Court, whose appointment is thus, under challenge in the present proceeding. The said respondentno.10 has appeared and has filed her counter affidavit. 9 It has been pleaded in the counter affidavit that against nine posts of Lecturers less than 50% posts had been reserved and therefore, the decision to reserve the post of Lecturer in Hindi cannot be said to be violative of Articles 14 and 16 of the Constitution of India.
11. Before coming to the judicial pronouncements of the Supreme Court and this Court on the question of providing reservation for a single post, the advertisement in question needs to be looked into. Through the said advertisement altogether nine posts have been advertised; two posts each in the subject of Sanskrit Vyakaran, Sanskrit Sahitya, Sanskrit Jyotish one post of Sanskrit Sahitya out of two has been declared to be reserved for O.B.C. One post of Lecturer in Sanskrit ( Ved) has been shown to be unreserved, whereas to remaining posts i.e. Lecturer ( Hindi) and lecturer ( English) have been shown to be reserved for Scheduled Castes and OBC respectively. In this background, it has been submitted that there were altogether nine posts of Lecturer advertised and there was no infirmity in reserving three out of such nine posts for different reserved category candidates. The submission made on behalf of the respondent is fallacious. Post of Lecturer in different subjects cannot be clubbed together for the purpose of providing reservation. There cannot be a cadre of Lecturers teaching in different Departments, different subjects. 10 The qualification for appointment as Lecturer in Hindi is entirely different from the qualification required for the post of Lecturer in other subjects. In my considered view, one post of Lecturer in Hindi as advertised by Annexure-1 was a solitary post and could not be clubbed with other posts of Lecturers for different subjects.
12. Whether reservation under Article 16(4) of the Constitution of India can be provided for appointment against solitary post is no more res integra and has been considered by Supreme Court in a series of judgments. In case of Dr. Chakradhar Paswan Vs. State of Bihar and ors. Reported in AIR 1988 SC 959. The Supreme Court in most unequivocal term held in paragraph 16 as follows:-
"16. It is quite clear after the decision in Devadasan‟s case that no reservation could be made under Article 16(4) so as to create a monopoly. Otherwise, it would render the guarantee of equal opportunity contained in Articles 16(1) and 16(2) wholly meaningless and illusory. These principles unmistakably lead us to the condition that if there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up a future vacancy in respect of that post. A reservation which would come under Article 16(4) pre-supposes the availability of at least more than one post in that cadre."
13. The view of the Supreme Court has been followed subsequently in (1998) 4 SCC 1 ( Post Graduate Institute of 11 Medication Education and Research, Chandigarh Vs. Faculty Association and ors. Reference may also be made in this regard to another judgment of the Supreme Court in case of State of Karnataka and others S.K. Govindarappa and others reported in (2009) 1 SCC 1, wherein the Supreme Court held that for providing reservation in the matters of recruitment/appointment, there has to be plurality of post.
14. In my opinion, in the present case the post of Lecturer in Hindi as advertised cannot be clubbed together with same post in other subjects as such posts are not inter changeable and they are to be considered independently as they are meant for teaching different subjects, more particularly as recruitment is to be made on the basis of qualification which are entirely different for each posts. A post Graduate in Snaskrit (Vayakaran) cannot be considered for appointment as Lecturer (Hindi) and post Graduate in Hindi cannot be considered for appointment as Lecturer of Sanskrit ( Vyakaran).
15. For the reasons above, I hold that the grant of reservation for the solitary post of Lecturer in Hindi was not permissible and advertisement dated 13.2.2011 on that ground cannot be sustained. It is declared that the action of the respondents reserving one post of Lecturer in Hindi for the 12 Institution in question was violative of Articles 14 and 16 of the Constitution of India in the light of the Supreme Court judgment as noted above. The appointment of respondent no.10 as Lecturer after granting benefit of reservationon the basis of the said advertisement is set aside. The respondents Sri Ram Sunder Sanskrit Vishwa Vidya Pratisthan will be required to issue advertisement afresh inviting application for the said post and will proceed in accordance with law.
16. This application is allowed to the extent as indicated above.
(Chakradhari Sharan Singh, J) ArunKumar/-
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