Jharkhand High Court
Yogesh Kumar vs The State Of Jharkhand on 11 June, 2020
Equivalent citations: AIRONLINE 2020 JHA 215
Author: S.N. Pathak
Bench: S. N. Pathak
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 3604 OF 2019
Yogesh Kumar, Son of Mukesh Thakur ... ... ... Petitioner
Vs.
1. The State of Jharkhand
2. The Secretary, Human Resource Development Department (Higher Education),
Project Building, Ranchi
3. The Director, Higher Education, Government of Jharkhand, Ranchi.
4. Ranchi University, through its Vice Chancellor.
5. The Registrar, Ranchi University, Ranchi
6. Yogoda Satsanga Mahavidyalaya, Ranchi
7. Secretary, Governing Body, Yogoda Satsanga Mahavidyalaya, Ranchi
8. Jharkhand Public Service Commission, through its Secretary, Ranchi
9. Mrityunjay Kumar, son of Ramayan Tiwary
... ... ... Respondents
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK For Petitioner : Mr. Shresth Gautam, Advocate For the State: Mr. Shadab Bin Haque, AC to Sr. SC-II Mr. Ankit Apurva, AC to Sr. SC-II For the Respondent No. 9 : Mr. Anil Kumar Sinha, Sr. Advocate For the Respondent No. 6 & 7 : Mr. Rajiv Ranjan, Sr. Advocate.
Mr. Piyush Chitresh, Advocate
For the University Mr. A.K. Mehta, Advocate.
For the JPSC: Ms. Richa Sanchita, Advocate
12/11.06.2020 Heard Learned counsel for the parties.
2. PRAYER
Petitioner has filed this writ petition with a prayer for following reliefs:
(a) For the issuance of an appropriate writ/ writs, order/orders, direction/ directions in the nature of certiorari for quashing appointment of respondent no. 9 to the post of Assistant Professor (History) after calling for records in terms of prayer "c" made in furtherance to advertisement inviting applications published in the newspaper dated 24.01.2018 as the same has been made in violation of the minimum eligibility criteria as prescribed under the advertisement;
(b) To hold and declare that the respondent no. 9 does not possesses the requisite qualification/ eligibility criteria as enshrined in the advertisement as respondent no. 9 is not having master's level degree in the concerned subject from a recognized Indian University;
(c) For a direction upon the respondent to call for the entire records in connection with the recruitment process and if the appointment made to the RC 2 post of Assistant Professor (History) and also the appointment letter and connected documents in relation to appointment of respondent no. 9 to the post of Assistant Professor (History).
(d) Directing the respondents to appoint the petitioner to the post of Assistant Professor (History) in furtherance to the appointment process initiated vide advertisement dated 24.01.2018.
3. FACTS OF THE CASE:
As per factual matrix, an advertisement was floated by Yogoda Santsanga Mahavidyalaya in the year 2017. Petitioner having requisite qualification, applied for his appointment on contractual basis on per class basis as an Assistant Professor at the Degree Section of Yogoda Satsanga Mahavidyalaya. After due scrutiny and interview, appointment letter dated 18.08.2017 was issued in favour of the petitioner appointing him as an Assistant Professor (Contractual) in the Department of History. The services of the petitioner was further extended vide letter dated 10.08.2018 with effect from 22.07.2018 for a period of 11 months. Thereafter, fresh advertisement dated 24.01.2018 was issued by the respondent - College for direct recruitment on two sanctioned post of Assistant Professor in the Department of History. Petitioner being eligible applied for the same. However, petitioner has come to know that one person namely Mritunjay Kumar had been short-listed and was going to be appointed to the post of Assistant Professor in the Department of History. Thereafter, petitioner filed an application dated 23.10.2018 under Right to Information Act, 2005 seeking information regarding entire recruitment process right from issuance of advertisement and criteria adopted for selection of a candidate and the details of appointment made in the department of History earlier and the existing procedure for appointment in the said department.
4. ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE PETITIONER:
Mr. Shresth Gautam, learned counsel appearing for the petitioner submits that respondent no. 9 has passed M.A. in Ancient History and not in "History" and for teaching at college level in the State of Jharkhand, one should not have specialized stream of History as a subject in the Post Graduate Level rather M.A. in History is required. Learned counsel submits that respondents have violated terms and conditions of advertisement and have appointed respondent no. 9 without considering candidature of the petitioner and there have been irregularities committed by the respondents in holding a fair and proper RC 3 recruitment process. Respondents have overreached the guidelines of the Jharkhand Public Service Commission and have appointed respondent no. 9 who is M.A. in Ancient History. Learned counsel further submits that in Bihar Public Service Commission, Patna eligibility criteria for appointment to the post of Assistant Professor in History has been fixed as M.A. Degree in "History" and not in Medieval History or Ancient History. Learned counsel further submits that in view thereof, the candidates who hold degree and knowledge of all papers of History, not only part of History, are eligible for the post. It is submitted that for appointments of TGT Teachers of High School Examination in the State of Jharkhand as well as for appointment of P.G.T. Teachers in Navodaya Vidyalaya by Navodaya Vidayalaya Samittee for the subject History, a candidate must hold Degree in History and not any one paper of History. Learned counsel further submits that even for pursuing Post Graduation course in History in all Central Universities and other Universities, a candidate must possess Degree of History (Hons.) and not in any specialized paper of History. Petitioner is M.A. in History which is essential eligibility criteria in terms of the advertisement for appointment and as such he is the suitable candidate for appointment whereas the respondent no. 9 ought not have been appointed to the said post in the facts and circumstances of the case and as such, appointment of respondent no. 9 to the post of Assistant Professor (History) may be quashed as the same has been made in violation of the minimum eligibility criteria as prescribed under the advertisement. Learned counsel further submits that in view of the fact that respondent no. 9 is Post Graduate in Ancient History only, the Admit Card was not issued by the Jharkhand Public Service Commission in his favour for appointment to the post of Assistant Professor. In other words, his candidature was rejected by the Jharkhand Public Service Commission. Being aggrieved, respondent no. 9 filed W.P.(S) No. 4962 of 2007 before this Court, which was however withdrawn by him. In view of facts and circumstances, the appointment made by the respondent - College is fit to be quashed and petitioner may be appointed in his place in view of the fact that petitioner is placed at serial no. 3 in the merit list and out of two vacant seats, the candidate at serial no. 2 in the merit list, has already been appointed and is working in the College. Learned counsel submits that in similar facts of case, this Court has already expressed its view and passed a detailed Judgment on 20.09.2019 in W.P.(S) No. 4079 of 2018 and other analogous cases. In view thereof, this writ petition may be allowed and respondents may be directed to appoint petitioner to the said post.
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5. ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE RESPONDENT NOS. 6 AND 7 Mr. Rajiv Ranjan, learned Sr. counsel appearing on behalf of the respondent nos. 6 and 7 assisted by Mr. Piyush Chitresh, submits that the College had floated the advertisement for appointment to the post of Assistant Professor for the subjects History, Botany, Commerce and Philosophy fixing the criteria/ qualifications as per the UGC Regulations, 2010 and the subsequent amendment carried out by the Ranchi University. Learned Sr. Counsel submits that UGC Regulations regarding equivalency of Degree is not very clear and unambiguous. Learned Sr. Counsel further submits that though respondent no. 9 is PG in Ancient History but he was allowed to appear for UGC - NET in a related subject i.e. History and as per UGC Guidelines, the suitability of a candidate for the post of Assistant Professor lies with the jurisdiction of the appointing authority. Said respondent no. 9 is also empanelled as an Academic Counsellor (History) by the Indira Gandhi National Open University and petitioner has been approved for teaching all the papers in Master in History. Respondent no. 9 had also worked as Assistant Professor in Ranchi University, Department of History, Ranchi University on contractual basis. He was also Guest Lecturer in St. Xavier's College and Nirmala College in 2017 - 18. He was also shortlisted by Uttarakhand Public Service Commission for recruitment to the post of Assistant Professor in History in the year 2013. The name of respondent no. 9 on being found suitable for appointment in the College has been recommended for appointment. The College in question is a religious minority institution and is the appointing authority for teaching and non- teaching staffs against the sanctioned post. Learned Sr. Counsel further draws attention of this Court towards Annexure-E to their counter affidavit and submits that the UGC Notification dated 18.07.2018 prescribes eligibility conditions for Direct Recruitment to the post of Assistant Professor. The eligibility condition (A) unambiguously stipulates as under:
"A Masters' Degree with 55% marks in concerned/ relevant/ allied subject from Indian university or an equivalent degree from an accredited foreign university."
Learned Sr. counsel submits that in terms of above, action of the respondents is fully justified in appointing respondent no. 9 to the post of Assistant Professor for the subject History. Petitioner had participated in the selection process knowing fully well the procedures laid down therein and as such, after completion of selection procedure and upon his failure in the said process, he cannot be allowed to question the same.
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6. ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE RESPONDENT NO. 9 Mr. Anil Kumar Sinha, learned Sr. Counsel appearing for the respondent no. 9 submits that after scrutiny, the candidates were shortlisted and called for interview and upon being found suitable, respondent no. 9 was selected by the College. Respondent no. 9 is having teaching experience for more than 10 years in different Colleges under PG Department of History, Ranchi University, Ranchi. Petitioner had also participated in the selection process but could not be selected in view of availability of other suitable candidates. Petitioner has no locus standi to challenge the selection process in which he participated but his candidature has been rejected. Drawing the attention towards Annexure-3 Series filed by the respondent no. 9, learned Sr. Counsel submits that he is highly qualified candidate and has a good academic and teaching record. Learned Sr. Counsel further submits that in the letter dated 19.07.2016, UGC has clearly stated that "Equivalence of Degree, Diplomas, Certificate etc. are not determined by the UGC. In the case of higher education, equivalence is decided by the University concerned and in cases of employment, promotion etc., equivalence is decided by the employing organization." The College concerned, being an appointing organization, has rightly appointed the respondent no. 9 in accordance with rules and guidelines. The Rules and Regulations, Laws and Bye-Laws framed by the Department of Personnel and Administrative Reforms, Government of Jharkhand in relation to JPSC has no relevance in the case of appointments made as per the UGC Guidelines. Mr. Anil Kumar Sinha, learned Sr. Counsel further submits that Judgments are prospective and not retrospective. The respondent no. 9 was appointed on 27.09.2018 whereas the Judgment has been passed by this Court on 20.09.2019 in W.P.(S) No. 4079 of 2018 and other analogous cases and as such, the Pandora box cannot be allowed to be opened at this stage. Learned Sr. Counsel further submits that in N.T. Devin Katti Vs. Karnataka Public Service Commission reported in (1990)3 SCC 157, Page-164, it has been clearly held that the same could not have been a retrospective effect. To buttress his arguments, learned Sr. Counsel draws attention of this Court towards order passed by this Court in W.P.(S) No. 4079 of 2018 and other analogous cases and further argues that those cases were related with the appointment of Post Graduate Trained Teachers of the Schools whereas in the instant case, appointment is for the College where U.G.C. Rules applies. Learned Sr. Counsel further argues that the Judgments cannot be given retrospective effect and as such, in view of the fact RC 6 that the appointments relates to earlier date, the Judgments passed in W.P.(S) No. 4079 of 2018 is not applicable in the case at hand. Mr. Anil Kumar Sinha, learned Sr. Counsel, justifying the appointment of respondent no. 9 emphatically argues that after due scrutiny, the candidates were shortlisted and after selection process, the most suitable candidate has been appointed. The respondent no. 9, having teaching experience for a long period of 10 years' in the field, has been found suitable and as such his appointment should not be questioned. Learned Sr. Counsel further argues that petitioner had appeared in the selection process and was disqualified. In the circumstances, it is not open to him to challenge the entire selection process and petitioner has also no locus standi to challenge the selection process and as such this writ petition is devoid of merits and fit to be dismissed.
7. ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE JPSC (RESPONDENT NO. 8 Ms. Richa Sanchita, learned counsel appearing for JPSC submits that the advertisement was issued by the College concerned and is not related to JPSC. JPSC is a proforma respondent and is not a necessary party in this writ petition.
8. ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE UNIVERSITY (RESPONDENT NOS. 4 AND 5) Mr. Anoop Kumar Mehta, learned counsel appearing for the University submits that in view of Section 57(A) of the Jharkhand State Universities Act, appointment has to be taken by the JPSC.
9. REASONS:
Be that as it may, having gone through rival submission of the parties, perusal of documents brought on record and careful examination of the advertisement, this Court is of the considered opinion that illegality has been committed and the same cannot be allowed to be continued. The advertisement was floated for appointment to the post of Assistant Professor (History). Admittedly, the subject "History" has different parts namely (i)- Ancient (ii) Medieval (iii) Modern History (iv) World History. Even the World History, Asian History are treated as parts of History and not as a History. In the Schools or Colleges whenever appointments are made through public advertisement, it is clearly mentioned in which subject appointments are to be made. In the instant case, the appointment was to be made in a particular subject i.e. "History" and not in any other or any part of any subject. In the University, different RC 7 departments are there and within the department also, there are different parts. As already mentioned hereinabove, the subject "History" also consists of different parts.
10. In the instant case, the respondent no. 9 was appointed as Assistant Professor (History). However, said respondent no. 9 was not possessing qualification of M.A. (History) rather he is merely M.A. (Ancient History) whereas it is admitted fact that for teaching at college level in the State of Jharkhand, one should have specialized knowledge of Degree in the particular subject and not a part thereof. In the instant case, there was clear requirement of possessing M.A. (History) and not M.A. (Ancient History). The respondents authorities, while appointing the respondent no. 9, has completely overlooked the requirements as mentioned in the advertisement and have violated the terms and conditions of the advertisement and as such, it can be comfortably held that a fair and proper recruitment process did not take place and irregularities have been committed by the respondents, which cannot be allowed to be perpetuated. The appointment of respondent no. 9 is under cloud. The arguments advanced by Mr. Rajiv Ranjan, learned Sr. Advocate appearing for the College is not acceptable to this Court as merely empanelment of respondent no. 9 as an Academic Counsellor by the IGNOU does not improve his academic qualification and cannot be replaced in place of requisite qualification to be possessed for appointment as an Assistant Professor (History). For this, the requirement was to be possessing the qualification of M.A. (History) and not any part of History. Merely because the respondent no. 9 had the teaching experience of History without having the requisite qualification, cannot be taken into consideration for appointment without having requisite qualification. This court holds that appointment of respondent no. 9 has been done without considering the requisite qualification as mentioned in the advertisement and is full of irregularities.
11. In the instant case, petitioner has not questioned the selection process.
Nowhere the terms and conditions of advertisement/appointment has been challenged by the petitioner rather it is specific case of the petitioner that appointments have been made dehorse the rules. In the Judgment rendered in the case of Bedanga Talukdar -Vs- Saifudaullah Khan & Ors. reported in 2011(12) SCC 85 : Para 29 to Para 32, it has been clearly held that the Selection Process has to be completed strictly in terms of Advertisement. For better appreciation, para-29 to 32 of the Judgment passed in the case of Bedanga Talukdar is quoted hereunder:
RC 8 "29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate.
Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure.
Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.
30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of Respondent 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India.
31. In our opinion, the High Court was in error in concluding that Respondent 3 had not treated the condition with regard to the submission of the certificate along with the application or before appearing in the preliminary examination, as mandatory. The aforesaid finding, in our opinion, is contrary to the record. In its resolution dated 21-5-2010, the Commission has recorded the following conclusions:
"Though Shri S. Khan had mentioned in his letter dated 10-12- 2009 that he was resubmitting the identity card with regard to locomotor disability he, in fact, had submitted the documentary proof of his locomotor disability for the first time to the office of the APSC through his above letter dated 10-12-2009. However, after receiving the identity card the matter was placed before the full Commission to decide whether the Commission can act on an essential document not submitted earlier as per terms of advertisement but submitted after completion of entire process of selection.
The Commission while examining the matter in details observed that Shri S. Khan was treated as general candidate all along in the examination process and was not treated as physically handicapped with locomotor disability. Prior to taking decision on Shri S. Khan it was also looked into by the Commission, whether any other candidate's any essential document relating to right/benefits, etc. not furnished with the application or at the time of interview but submitted after interview was accepted or not. From the record, it was found RC 9 that prior to Shri S. Khan's case, one Smt Anima Baishya had submitted an application before the Chairperson on 26-2-2009 claiming herself to be an SC candidate for the first time. But her claim for treating herself as an SC candidate was not entertained on the grounds that she applied as a general candidate and the caste certificate in support of her claim as SC candidate was furnished long after completion of examination process."
32. In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In such circumstances, the High Court could not have issued the impugned direction to consider the claim of Respondent 1 on the basis of identity card submitted after the selection process was over, with the publication of the select list."
12. The arguments advanced by Mr. Anil Kumar Sinha, learned Sr. Counsel is also not acceptable. The respondent no. 9 did not fulfill the requirements of requisite qualification and as such his experience cannot come to his rescue. Respondent No. 9 has been given undue favour ignoring the requirements of requisite qualification. One who does not have the required qualification, does not deserves to be appointed.
13. The issues involved in this case is no more resintegra. The U.G.C. Guidelines have already been considered in W.P.(S) No. 4079 of 2018 and other analogous cases, which has also been affirmed by the Hon'ble Division Bench in L.P.A. No. 693 of 2019 and other analogous cases. While affirming the Judgments passed in W.P.(S) No. 4079 of 2018 and other analogous cases, the Hon'ble Division Bench in paragraph-32 has held as under:
"32. This Court, after giving thoughtful consideration of the facts, as discussed herein above and after going across the findings recorded by learned Single Judge and after considering the entire aspect of the matter vis-à-vis legal position and considering the terms of the advertisement, is of the view that the learned Single Judge has rightly come to the finding about decision taken by the authority in not considering the candidature of the writ petitioners-appellants since they are not having degree at graduation/post-graduation level with the subject "History" and as such has directed the authority to exclusively consider the candidature of such candidates, who have obtained degree exclusively in the subject History as per the advertisement."
14. It is the specific case of the Petitioner that Respondent No. 9 has qualification of post-graduation in subject Ancient History and as such in terms of the advertisement, Respondent No. 9 does not fulfill the requisite educational RC 10 qualification for appointment as Assistant Professor in the subject History as Advertised by the Respondent Nos. 6 and 7. It is also specific case of the petitioner that in terms of the advertisement and UGC Regulation, 2010 the required educational qualification for appointment as Assistant Professor for subject History in a college in accordance with the UGC Regulations, 2010 is "Good Academic record as defined by the 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.
15. It can comfortably be said that any appointment has to be made as per the advertisement and cannot be entertained dehorse the rules. There is illegality in the appointment of respondent no. 9 to the post of Assistant Professor (History) and as such the same is not tenable in the eyes of law. In the circumstances, appointment of respondent no. 9 is hereby quashed and set aside.
16. It is an admitted fact that from the panel of successful candidates, respondent no. 9 was in the first position whereas the candidate at serial no. 2 of the merit list is already working in the College. In consequence of quashment of appointment of respondent no. 9, petitioner is now at second position in the merit list prepared for the appointment in question and has obtained degree exclusively in the subject "History" and fulfils the requisite criteria as per the advertisement. In the circumstances, the respondents are directed to re-consider his case for appointment, if there is no other legal impediments, within a period of four weeks from the date of receipt/ production of a copy of this order. Needless to say, if petitioner is found eligible for appointment fulfilling all the requisite qualification as held hereinabove, letter of appointment be issued in his favour within a period of three weeks thereafter.
17. With the abovementioned orders and directions, this writ petition stands allowed.
(Dr. S.N. Pathak, J.) RC